Endangered Species Law & Policy

On December 13, 2018, the United States District Court for the District of Colorado vacated an eagle take permit issued by the U.S. Fish and Wildlife Service ("Service") authorizing a construction company to disturb a pair of nesting bald eagles.  Front Range Nesting Bald Eagle Studies v. U.S. Fish and Wildlife Service et al., No. 1:18-cv-00356.  The Bald and Golden Eagle Protection Act ("BGEPA"), prohibits the disturbance of bald eagles or golden eagles.  The Service's regulations define disturb to mean ...

On December, 10, 2018, the United States Supreme Court granted a petition for writ of certiorari in Kisor  v. Wilkie (No. 18-15), which raises the issue of whether Auer deference should be overruled.  Auer deference (also known as Seminole Rock deference) requires courts to defer to an agency's reasonable interpretation of its own ambiguous regulations.  Auer deference is similar to Chevron deference, which requires courts to defer to an agency's reasonable interpretation of ambiguous statutes.  As this blog has noted, agency deference has been in the spotlight recently ...

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) to designate approximately 12.28 acres of critical habitat for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) in Pima County, Arizona.  The proposed critical habitat would be located entirely within the Organ Pipe Cactus National Monument.

The Service previously issued a final rule listing the species as endangered under the Endangered Species Act (ESA) in September 2017, finding that the Sonoyta mud turtle has been threatened by habitat loss and degradation due to surface water loss and riparian ...

On November 27, 2018, the U.S. Supreme Court ruled that an area is eligible to be designated as critical habitat under the Endangered Species Act (ESA) only if the area is habitat for the relevant threatened or endangered species.  Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71.  The Court vacated the U.S. Court of Appeals for the Fifth Circuit’s decision, which held that the ESA has no habitability requirement, and remanded the case to the Fifth Circuit to consider the meaning of habitat under the ESA.  Additionally, the Court held that a decision by the U.S. Fish and ...

On November 21, 2018, the U.S. Fish and Wildlife Service (Service) published a final rule listing the candy darter (Estheostoma osburni) as endangered and proposing critical habitat for the species.  The candy darter is a small, freshwater fish species native to Virginia and West Virginia.  The Service’s announcement finalizes its proposed rule to list the candy darter, which was published on October 4, 2017, with one significant difference – the Service originally proposed to list the candy darter as threatened, but the final rule lists the candy darter as endangered.

The candy ...

The recent California wildfires have been devastating.  But it is during such times of devastation that we also get to see the good in people.  We see communities coming together, and support from around the State.  As reported by a number of news agencies, that support has extended to not just people, but also pets.  There are stories with pictures of police officers corralling pot belly pigs, horses being guided through smoke and flames, and dogs and cats being rescued by a variety of organizations.  However, it isn't just people and pets who called these places ...

On November 4, 2018, the U.S. District Court for the Eastern District of North Carolina granted summary judgment in favor of conservation organizations Red Wolf Coalition, Defenders of Wildlife, and Animal Welfare Institute in a case challenging the U.S. Fish and Wildlife Service’s (FWS) administration of the recovery program for endangered red wolves (Canis rufus).

FWS began reintroducing red wolves in North Carolina in 1987.  Red wolves were designated as a non-essential experimental population under section 10(j) of the Endangered Species Act (ESA).  As such, FWS may only ...

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (Combs), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (Service).  As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is ...

In WildEarth Guardians et al. v. U.S. Department of Justice, Case Nos. 17-16677, 17-16678, 17-16679 (Oct. 23, 2018), the U.S. Court of Appeals for the Ninth Circuit dismissed plaintiff-appellees case challenging the U.S. Department of Justice’s McKittrick policy.  In reversing the lower court, the Ninth Circuit concluded that plaintiff-appellees lack standing to pursue the case. 

The McKittrick policy directs Department of Justice attorneys who prosecute Endangered Species Act (ESA) cases to request jury instructions that prove beyond a reasonable doubt that a ...

On October 22, 2018, the U.S. Court of International Trade denied the request of various federal agencies to stay an injunction banning the import of Mexican seafood caught with gill nets in the Gulf of California.  The injunction, granted in July, is intended to protect the endangered vaquita porpoise (Phocoena sinus), which can get tangled in commercial fishing gill nets.  The injunction required the United States Department of Commerce, National Marine Fisheries Service, United States Department of the Treasury, United States Department of Homeland Defense, and various ...