• Posts by Benjamin Z. Rubin
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    Ben Rubin assists developers, public agencies, landowners, and corporate clients on a variety of complex land use and environmental matters.  He counsels clients on matters dealing with the Federal and State Endangered Species ...

Yes, if the animal is designated as threatened or endangered under the federal Endangered Species Act (ESA). In a recent federal court decision out of Massachusetts, a United States District Court was called on to decide whether a local zoo’s treatment of two endangered Asian elephants amounted to “harm” or “harassment” in violation of the “take” prohibition under section 9 of the ESA ...

Posted in Delisting

On February 26, 2018, the U.S. Fish and Wildlife Service issued a proposed rule to delist the Borax Lake chub (Gila boraxobius), a small fish that currently resides primarily in a single Oregon lake.  Currently listed as an endangered species, the proposed rule states that the best available scientific and commercial information "indicates that the threats to the Borax Lake chub have been eliminated or reduced to the point where the species no longer meets the definition of an endangered or threatened species under the Endangered Species Act . . . ."  The Federal Register notice ...

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 ...

Posted in Congress

On August 10, 2018, the representative from Indiana's 4th Congressional District introduced a bill entitled: "To amend the Endangered Species Act of 1973 to remove freshwater mussels from the list of endangered and threatened species."  While the text of the bill isn't yet available, based on the title of the bill one can reasonably surmise that the author of the bill believes that freshwater mussels are not deserving of Endangered Species Act protection.  Further, this interpretation is supported by recent articles detailing the representative's long-running ...

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On May 16, 2018, the House Committee on Natural Resources passed six bills, including the Federally Integrated Species Health Act (H.R. 3916).  H.R. 3916 is sponsored by Representative Ken Calvert, a Republican representing the 42nd Congressional District in California.  The bill proposes to amend the federal Endangered Species Act to vest the Secretary of Interior with Endangered Species Act authority over fish species that migrate between fresh and ocean waters, such as the endangered Sacramento River winter-run Chinnok salmon (Oncorhynchus tshawytscha).  ...

Posted in Budget

On February 12, 2018, the Trump Administration released a budget proposal that would reduce spending on various components of the Endangered Species Act by almost half, including listing determinations and protection of critical habitat.  The administration's latest budget proposal has been met with widespread opposition by the environmental community.  See Trump Budget is Death Sentence for Endangered Species by Center for Biological Diversity.

On February 6, 2018, the National Marine Fisheries Service (NMFS) announced an extension of the public comment period for the 5-year review of the endangered Western Distinct Population Segment (DPS) of the Steller sea Lion (Eumetopias jubatus).  The Western DPS includes Steller sea lions that reside in the central and western Gulf of Alaska, Aleutian Islands, as well as those that inhabit coastal waters in Asia.  According to the Federal Register notice, the extension of the comment period to April 6, 2018 was issued in response to a request for additional time.  In addition ...

Posted in Congress

Long ago, the framers of the Constitution decided to separate the federal government's powers into three branches, with each branch acting as a check on the other.  Broadly speaking, the legislative branch writes the law, the judicial branch decides what the law means, and the executive branch decides how to enforce the law.  Sometimes, however, the powers can overlap among the branches.

For example, besides writing the laws, the legislative branch also approves the budgets for the various federal agencies.  And if a particular agency budget does not include funds for ...

In July we reported on five bills that propose to amend various aspects of the Endangered Species Act:

  • H.R. 2603 - would remove listings of non-native species;
  • H.R. 717 - would modify the process for listing determinations;
  • H.R. 3131 - would require a party to prevail in order to recover attorneys' fees and place a cap on fees;
  • H.R. 1274 - would require the U.S. Fish and Wildlife Service to make listing determination data available to impacted states; and
  • H.R. 424 - would require the Department of the Interior to reissue final rules relating to the listing of the gray wolf in the ...

Earlier this week, the U.S. Fish & Wildlife Service (Service) issued a notice in the Federal Register that it was reopening the comment period on five proposed rules for four plant species.  Specifically, the proposed rules include the following: (1) listing Guadalupe fescue (Festuca ligulata) as an endangered species; (2) designating Guadalupe fescue critical habitat; (3) reclassifying Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii) from endangered to threatened; (4) reclassifying Kuenzler hedgehog cactus (Echinocereus fendleri var.

On April 5, 2017, the U.S. Fish and Wildlife Service (Service) issued a final rule in the Federal Register reclassifying the West Indian manatee (Trichechus manatus) from endangered to threatened under the Endangered Species Act.  Despite the reclassification, the Federal Register explained that while some significant threats have been reduced or eliminated, there are still a number of threats that remain, such as habitat loss and poaching, and that implementation of recovery actions are needed for the manatee to fully recover.

The reclassification was the result ...

On June 13, 2016, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, held that the U.S. Fish and Wildlife Service (FWS) had properly included approximately 1,500 acres in Louisiana as designated critical habitat for the endangered dusky gopher frog (Rana sevosa), even though the frog did not inhabit the land and significant alterations would be required before the land could even be considered habitable.  Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016).  (For a further discussion of the panel decision, see our prior ...

Posted in Listing

The Candidate Notice of Review is an annual appraisal by the U.S. Fish and Wildlife Service (Service) of plants and animals that are candidates for Endangered Species Act protection.  A "candidate" species is a species for which there is sufficient information to support a proposal for listing as an endangered or threatened species under the Endangered Species Act, but the formal listing determination is delayed because of higher priority listing actions for other species.  The Candidate Notice of Review, among other things, "summarizes the status and threats ...

The distinct population segment of the North American wolverine (Gulo gulf luscus) has had a long and difficult history with the Endangered Species Act (ESA).  However, things appeared to be changing in 2013, when, after denying a number of prior listing petitions at various stages of the process, the U.S. Fish and Wildlife Service (Service) announced its proposal to list the wolverine as a threatened species under the ESA, citing anticipated habitat loss due to climate change.  (See our February 3, 2013 post for a summary of this history.)  While this put the wolverine squarely on ...

Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological opinions issued by the National Marine Fisheries Service (NMFS) for four hydroelectric projects on the Kennebec River in Maine, finding that because the federal approvals triggering the biological opinions were issued by the Federal Energy Regulatory Commission (FERC), the lawsuit had to be filed in the U.S. Court of Appeals in the first instance, not ...

In a recent decision, the U.S. Court of Appeals for the District of Columbia affirmed the dismissal of an environmental organization's Endangered Species Act (ESA) claim, concluding that the organization lacked standing because the informational injury alleged in the complaint could not, as a matter of law, arise until after the U.S. Fish and Wildlife Service (Service) issued a 12-month finding under the ESA, and the complaint expressly alleged that the Service had not issued such a finding.  Friends of Animals v. Jewell, No. 15-5223 (D.C. Cir. July 15, 2016).

Under Section 4 ...

As recently reported by the Center for Biological Diversity, a rider has been proposed for an appropriations bill that would provide $1.5 billion to the U.S. Fish and Wildlife Service in 2017.  The controversial rider would remove current Endangered Species Act protections for gray wolf populations in Michigan, Wisconsin, Minnesota, and Wyoming.  The appropriations bill, which is currently making its way through the House of Representatives, was before the House Subcommittee on Interior, Environment, and Related Agencies on May 25, 2016 ...

On April 8, the United States District Court for the Middle District of Florida held that Collier County’s (County) land use planning regulations were complimentary, not contrary to the Endangered Species Act (ESA).  The court also held that the County's planned future roadway extension did not violate the ESA, because the roadway project was only in the initial planning stages and the County acknowledged that compliance with the ESA was required before any construction activities could take place. Florida Panthers v. Collier County, Case No. 2:13-cv-612 (M.D. Fla. Apr. 8 ...

Posted in Court Decisions

Yes, no, maybe so. With the passing of Justice Antonin Scalia, many have already started to prognosticate about the sea change that will inevitably follow. While it is certainly possible that such a sea change will come to pass, it also possible that the Supreme Court will remain much as it has been for more than a decade, with a staunch 4-person conservative block, a staunch 4-person liberal block, leaving Justice Kennedy to decide who wins and who loses. This possibility exists, because right now there are numerous moving parts that could impact who will fill the ninth spot on the Court ...

On January 6, 2016, the U.S. Fish and Wildlife Service (Service) issued its 12-month finding on the petition to list the Alexander Archipelago wolf (Canis lupus ligoni) as an endangered or threatened species under the Endangered Species Act, concluding that listing the wolf species throughout all or a significant portion of its range "is not warranted at this time."

The Alexander Archipelago wolf inhabits the mainland of southeastern Alaska, coastal British Columbia, and several island complexes.  On March 31, 2014, the Service issued a 90-day finding for the wolf stating that ...

Under the Endangered Species Act (ESA), a citizen plaintiff is required to provide a notice no less than 60-days before filing certain types of lawsuits against the federal government.  For example, a 60-day notice is required before a citizen plaintiff may file a lawsuit seeking to compel the U.S. Fish and Wildlife Service (Service) to issue a decision on an ESA listing petition.  The primary purpose of the 60-day notice is to give the federal government an opportunity to review and, if necessary, correct the alleged ESA violation before incurring the cost of ...

In 2012, the U.S. Fish and Wildlife Service (Service) published a final rule designating 1,724 acres as critical habitat for the endangered Riverside fairy shrimp (Streptocephalus woottoni).  Included in that designation were 56 acres of private land, on which the plaintiff, Otay Mesa Property, L.P. (Otay Mesa), had planned to build a recycling facility and landfill.  Because of the land use restrictions potentially implicated by the critical habitat designation, Otay Mesa challenged the final rule in federal court, asserting that (1) the Service improperly ...

Under the Migratory Bird Treaty Act (MBTA), it is unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird" protected by the Act.  16 U.S.C. 703(a) & 704(a).  In a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA imposes a strict liability standard for any of the aforementioned acts, in order for an unlawful "taking" to occur, the defendant must have taken a "deliberate act done directly and intentionally to migratory birds."  United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. Sept. 4 ...

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court's recent decision in Horne v. Dep't of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer's raisin crop qualified as a "clear physical taking" requiring compensation under the Fifth Amendment to the U.S ...

Whether dealing with water or with endangered species directly, there have been a number of recent developments that are worth keeping on your radar.  Below is a quick summary of some of the more significant items:

July 16, 2015 - The House of Representative, in a largely partisan vote, passed H.R. 2898, the Western Water and American Food Security Act of 2015, by a vote of  245-176.  The Act, which is intended to ease some of the effects of the unprecedented drought gripping California, requires, among other things, for the U.S. Fish and Wildlife Service, the National ...

On May 27, 2015, the U.S. Court of Appeals for the Ninth Circuit provided some additional guidance as to what constitutes agency action for purposes of triggering the consultation requirement under the Endangered Species Act (ESA).  The court held that although the U.S. Bureau of Land Management (BLM) was required to consult with the U.S. Fish and Wildlife Service (FWS) on the effects of a proposed road project on BLM land, BLM was not required to consult on the effects of a proposed wind project that would be accessed via the federal road project.  Sierra Club v. BLM, Case No. 13-15383 ...

While a number of Endangered Species Act (ESA) reform bills continue to wind their way through Congress (see our May 6, 2015 post), yesterday, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced their own plan to "increase regulatory predictability, increase stakeholder engagement, and improve science and transparency" when acting on petitions to list, uplist, downlist, or delist a species, as well as petitions to revise critical habitat designations.  Rather than revising the ESA itself, as some in Congress ...

While the larger controversy is far from over, for the California and Nevada populations of the greater sage grouse (Centrocercus urophasianus), the controversy does appear to be put to rest.  In 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list the bi-state population as threatened under the Endangered Species Act (ESA).  In the proposed rule, the Service stated that the bi-state population was genetically distinct and geographically isolated from other greater sage grouse populations, and warranted protection under the ESA primarily because ...

On April 3, 2015, a federal district court in California put the brakes on a proposed logging project, invalidating a habitat conservation plan and incidental take permit issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 10 of the Endangered Species Act (ESA), as well as a biological opinion and incidental take statement issued by NMFS under section 7. Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic and Atmospheric Administration, Case No. 13-cv-03717 (N.D. Cal. Apr. 3, 2015) (pdf).

A project can avoid the general take ...

In a decision issued earlier this week, a U.S. District Court rejected the U.S. Fish and Wildlife Service's (Service) interpretation of the Endangered Species Act (ESA), finding that its interpretation of the critical habitat designation requirement constituted an impermissible construction of the statute.  Ctr. for Biological Diversity v. Kelly, Case No. 1:13-cv-00427 (D. Idaho Mar. 23, 2015) (pdf).  Specifically, the court found that, contrary to the Service's longstanding interpretation, the ESA requires critical habitat to be designated in a manner ...

Although there were some notable downperiods when it came to Endangered Species Act news over the past twelve months, the past few weeks have been anything but slow.  Below are a few of the more recent newsworthy items that have rolled off the presses:

December 11, 2014 - U.S. Fish and Wildlife Service issues a final rule listing the rufa red knot (Calidris canutus rufa) as a threatened species.  The rufa red knot is a migratory shorebird that breeds in the Canadian Artic, and winters in parts of the United States, the Carribean, and South America.  The final rule states that the ...

As we reported in October, after significant pressure from Congress, the U.S. Fish and Wildlife Service (Service) announced its intent to re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah, and Wyoming.  Yesterday, the Service announced the re-opening of the public comment period, stating that the public comment period would be open "for an additional 60 days to ensure the public has ...

On November 5, 2014, the National Marine Fisheries Service issued a 12-month finding (pdf) for the queen conch (Strombus gigas), concluding that the species prized for its meat and shell does not warrant listing because it is "not currently in danger of extinction throughout all or a significant portion of its range nor is it likely to become so within the foreseeable future."  WildEarth Guardians had submitted the 2012 petition requesting that the queen conch be listed, citing overfishing as the primary threat to the species.   In the 12-month finding, however, the ...

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Tags: Conch, Meat, NMFS, Shell

Yesterday, the U.S. Fish and Wildlife Service (Service) announced that it will re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah and Wyoming.  The announcement came after 17 members of Congress requested that the Service provide additional time for the public to review the proposed critical habitat designation, and two members of Congress publicly criticized the Service's ...

Posted in Listing

On October 6, the U.S. Fish and Wildlife Service (Service) issued a news release (pdf) announcing its proposal to list the West Coast Distinct Population Segment (West Coast DPS) of fisher (Pekanian pennanti) as threatened under the Federal Endangered Species Act (ESA), in part due to significant threats from illegal marijuana farming. 

The fisher belongs to a family of mammals that includes weasels and otters, and grows to about the size of a large house cat.  The Federal Register notice (pdf) regarding the proposed listing, which was published yesterday, states that the ...

Posted in Court Decisions

On September 23, 2014, the U.S. District Court for the District of Columbia invalidated the final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Wyoming Gray Wolf distinct population segment from the Federal List of Endangered and Threatened Species, concluding that Wyoming's regulatory protections were unenforceable and therefore inadequate for purposes of delisting the species.  Despite this conclusion, the court still affirmed the Service's finding that the species has "recovered" and that it was not "endangered or threatened within a ...

Posted in Congress

This morning, the House Committee on Natural Resources is holding a legislative hearing on six proposed amendments to the Endangered Species Act (ESA).  The live video webcast of the hearing can be accessed here.  The six proposed amendments are:

H.R. 1314 - establishing a procedure for approval of certain types of settlements

H.R. 1927 - providing congressional direction for implementation of the ESA as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the State of California

H.R. 4256 - requiring the wildlife agencies ...

Posted in Listing

In a 90-day finding (pdf) published this morning in the Federal Register, the National Marine Fisheries Service (NMFS) found that the listing of the orange clownfish (Amphiprion percula) "may be warranted" under the Endangered Species Act.  This finding was based in large part on the threat from "bleaching and subsequent loss of anemone habitat resulting from ocean warming" to three species of anemone that host the orange clownfish.  NMFS is now conducting a full status review of the species, and it has solicited scientific and commercial information pertaining to the ...

Posted in Court Decisions

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky gopher frog (Rana sevosa), concluding that even though the frog was last spotted on the property in the 1960s and the only known wild populations of the frog are all located in the State of Mississippi, the designation by the U.S. Fish and Wildlife Service (Service) was not arbitrary or capricious.  Markle Interests, LLC v. U.S. Fish and ...

Posted in Listing

On August 4, 2014, the U.S. Fish and Wildlife Service (Service) announced its decision to list two small Texas minnows -- the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N. buccula) -- as endangered under the Endangered Species Act (ESA).  The two Texas minnows, which have been candidates species since 2002, measure less than 2 inches and have a life span of less than three years.  According to the announcement issued by the Service, the "two primary  factors affecting the status of the shiners are river fragmentation and alterations of the natural stream flow regime ...

Posted in Court Decisions
Salamander, Sonoma, Section 9, ESA
Posted in Listing

Today, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service issued their final interpretation of the phrase "significant portion of its range" for the purposes of applying the Endangered Species Act (ESA).  This phrase plays a key role in the listing and delisting of species, as it appears in the ESA's definition of "endangered species" and "threatened species."  Specifically, under the ESA, an "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its ...

Posted in Court Decisions

On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the U.S. Fish & Wildlife Service (Service) failed to timely act on a number of listing petitions because the violations stated in the pre-litigation notice and complaint did not occur until after the litigation was filed.  Friends of Animals v. Ashe, No. 13-1607 (D.D.C. June 23, 2014).  

Under the ESA, after a listing petition has been filed, the Service is obligated ...

Posted in Listing

On June 2, 2014, the U.S. Fish and Wildlife Service (Service) announced the listing of the Webber's ivesia (Ivesia webberi) as a threatened species under the Endangered Species Act, and the designation of 2,170 acres of critical habitat in Plumas, Lassen, and Sierra Counties in northeastern California, and in Washoe and Douglas Counties in northwestern Nevada.  As stated in a related announcement issued by the Service, the rule listing the Webber's ivesia and designating critical habitat will not become effective until July 3, 2014.  The identified threats to the species include ...

Yesterday, the House of Representatives approved the Open Book on Equal Access to Justice Act (H.R. 2919), which would amend existing law to require the Executive Branch to provide an annual report to Congress on the amount of fees and other expenses awarded to prevailing parties, other than the United States, in certain administrative proceedings and civil suits, including certain lawsuits under the Endangered Species Act and other environmental statutes.  The Act would require the report to account for all payments of fees and other expenses awarded made pursuant to a ...

Posted in Listing

On May 2, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding concluding that, based on the best available scientific and commercial information, the endangered Lane Mountain milk-vetch (Astragalus jaegerianus), a plant found in a small portion of the central Mojave Desert in San Bernardino County, should not be reclassified as threatened under the Endangered Species Act.  The Service found that the "primary threats to Lane Mountain milk-vetch are habitat loss and disturbance from military training, OHV use, recreational mining ...

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Tags: Listing
Posted in Conservation

As reported by Kristi Pihl of the Tri-City Herald earlier this week, the Columbia-Snake Irrigators Association has requested that the Governors of Washington, Oregon, and Idaho proceed through the "God Squad" process under the federal Endangered Species Act (ESA) to seek to exempt those who operate on the rivers from having to provide any further mitigation for the local salmon and steelhead populations. 

In the 1979 amendments to the ESA, Congress created the Endangered Species Act Committee (aka, the "God Squad").  The God Squad has the authority to exempt an agency action ...

Posted in Legislation

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or ...

Posted in Listing

On March 27, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding and proposed rule to reclassify the arroyo toad (Anaxyrus californicus), a species that is believed to exist exclusively in California, from endangered to threatened under the Endangered Species Act.  The 12-month finding and proposed rule were initiated by a petition submitted in 2011 by The Pacific Legal Foundation requesting that the Service delist the Inyo California towhee and reclassify from endangered to threatened the arroyo toad, Indian Knob mountainbalm, Lane Mountain ...

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Tags: Listing
Posted in Conservation

The U.S. Fish and Wildlife Service (Service) has announced the availability of a revised recovery plan for the pallid sturgeon (Scaphirhynchus albus), a species that is found in the Missouri and Mississippi River basins, has been described as having a "unique dinosaur-like appearance," and has been listed as endangered since 1990.  As summarized by the Service, the revised recovery plan updates the "current understanding of the species life history requirements, identifies probable threats that were not originally recognized, includes revised recovery ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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