Posted in Legislation

The Klamath River Renewal Corporation (the "corporation") recently submitted a plan for the removal of four dams on the lower Klamath River to the Federal Energy Regulation Commission (FERC). In it, the corporation indicates its intent to sidestep compliance with the California Endangered Species Act and California’s Lake and Streambed Alteration Program by asking FERC to opine that those state law requirements are preempted by federal law. Among other things, these laws protect the critically endangered Lost River sucker (Deltistes luxatus) and shortnose sucker ...

Posted in Legal

The U.S. District Court for the District of New Mexico granted New Mexico’s motion for summary judgment in a case brought by the Humane Society seeking to invalidate State trapping regulations related to cougars (Puma concolor).  Plaintiffs argued that the regulations, which amended existing regulations that authorize trapping of cougars, violate the Endangered Species Act’s prohibition on take of protected species.  Plaintiffs reasoned that the amended regulations would inevitably cause the take of listed Mexican wolves (Canis lupus baileyi) since cougars and wolves ...

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and the Second Amendment, the addition of Justice Kavanaugh to the Supreme Court could also have significant effects on a range of environmental laws and regulations, including the Endangered Species Act (ESA).

One of Judge Kavanaugh’s most well-known environmental opinions is from Otay Mesa Property, L.P. v. Interior, 646 F.3d 914 (D.C. Cir. 2011). In Otay Mesa, the U.S. Fish and Wildlife Service (Service) had observed four endangered San Diego fairy shrimp (Branchinecta sandiegonensis) in one location on a dirt road on the plaintiffs’ 143-acre property. Based on that single observation, the Service designated the plaintiffs’ property as occupied habitat for purposes of its critical habitat designation under the ESA. The D.C. Circuit held that substantial evidence did not support the Service’s designation of critical habitat for the San Diego fairy shrimp. Judge Kavanaugh explained that while the Service may protect areas outside of the geographic range occupied by an ESA-protected species as essential to the species’ conservation, it had instead asserted that this was occupied habitat for the fairy shrimp. Judge Kavanaugh found that a single observation of a species did not provide sufficient evidence that the area was occupied habitat. And while the Service was under no requirement to continue looking for the endangered shrimp, Judge Kavanaugh noted that the lack of such an obligation is not the same as an authorization to act without data to support its conclusions. 646 F.3d at 918. This opinion suggests that Judge Kavanaugh is likely to narrowly interpret the provisions of the ESA.

Similarly, Justice Kavanaugh’s position on Chevron deference may have wide ranging consequences for environmental statutes, including the ESA.

The most comprehensive Endangered Species Act (ESA) bill of this Congressional session made its debut on July 2, 2018 when Senator John Barrasso (R-Wyo.), Chairman of the Senate Environment and Public Works (EPW) Committee, released a discussion draft of a bill proposing sweeping revisions to the ESA.  The discussion draft is a culmination of activity that began February 15, 2017, when the EPW committee held an oversight hearing on modernization of the ESA. Following that hearing, Senator Barrasso worked closely with the Western Governors’ Association (WGA) in drafting the ...

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The U.S. House of Representatives recently passed the Endangered Salmon and Fisheries Predation Prevention Act (Act) (H.R. 2083), co-sponsored by Rep. Jaime Herrera Beutler (R-WA) and Rep. Kurt Schrader (D-OR), allowing for the lethal removal of California and Steller sea lions (Zalophus californianus and Eumetopias jubatus) to protect endangered salmon (populations of Oncorhynchus nerka, Oncorhynchus kisutch, Oncorhynchus tshawytscha, and Salmo salar), steelhead (Oncorhynchus mykiss), and other native fish species.  The Act provides tribal members and government ...

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On Monday, June 18, 2018, the U.S. Fish and Wildlife Service (FWS) announced that it has initiated five year status reviews for fifty species in California, Nevada, and the Klamath Basin of Oregon, pursuant to the Endangered Species Act (ESA).  Included among the species whose ESA listing status is being reviewed are 19 animal species, four of which are currently listed as threatened, while the remaining 14 are currently listed as endangered.  Additionally, the FWS is reviewing thirty-one plant species.

As part of its review, FWS will be accepting new information pertinent to the ...

In late May 2018, the Klamath Tribes filed a complaint in the United States District Court for the Northern District of California seeking to shut down the Bureau of Reclamation’s Klamath Irrigation Project, which supplies water to thousands of family farms in northern California and southern Oregon. The gravamen of the Tribes’ complaint is that two fish – the Lost River sucker and shortnose sucker – are in dire straits and threatened with extinction by diversion of water from Upper Klamath Lake to support farming.  On the heels of filing their complaint, the Tribes filed a ...

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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 Conservation

On Friday, May 18, 2018, agencies and organizations throughout the United States will celebrate the 13th annual Endangered Species Day, which recognizes conservation efforts that protect our nation's imperiled species and their habitats.  Events are scheduled throughout the country to celebrate our biodiversity and efforts to conserve that diversity.

 

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Today, the U.S. Fish and Wildlife Service (Service) finalized its reclassification of the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii), a small cactus found in Texas, downlisting the species from endangered to threatened under the Endangered Species Act (ESA).

As previously reported here, the Service concluded that downlisting the cactus was warranted given an increase in the number of observed individuals. While only 200 cactuses were known when the species was listed as endangered in 1979, the Service now estimates there are more than 3,300 ...

As we reported here, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, No. 17-71, on January 22, 2018.  Petitioners challenge a 2-1 panel decision issued by the United States Court of Appeals for the Fifth Circuit, affirming a rule issued by the U.S. Fish and Wildlife Service (Service), 77 Fed. Reg. 35118 (June 12, 2012), that designated critical habitat for the dusky gopher frog (Rana sevosa) and included areas within the critical habitat that the frog does not and could not inhabit. Specifically, the ...

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U.S. Fish and Wildlife Service (USFWS) Principal Deputy Director Greg Sheehan recently issued a guidance memorandum to USFWS’ Regional Directors to clarify the appropriate trigger for an incidental take permit (ITP) under the Endangered Species Act (ESA).  While this guidance was directed internally to USFWS staff to aid in determination of whether project-related habitat modification is likely to result in take of a listed species, it also serves as a tool for project proponents to determine whether to seek an ITP and whether to cover a given species in that ITP.

The guidance ...

The Bureau of Land Management (BLM) has announced a 90-day comment period on proposed amendments to six Resource Management Plans (RMPs) and associated draft Environmental Impact Statements (DEISs) designed to protect the greater sage grouse (Centrocercus urophasianus).  In 2015, BLM finalized RMPs that addressed greater sage grouse conservation efforts across ten states.  The six RMPs that are the subject of this latest comment period address restrictions on energy development and other activities in Colorado, Idaho, Nevada, Northern California, Oregon, Wyoming and Utah

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Posted in Delisting

The U.S. Fish and Wildlife Service (FWS) issued a final rule removing the lesser long-nosed bat (Leptonycteris curasoae yerbabuenae) from the Federal List of Endangered and Threatened Wildlife due to recovery.  According to FWS, threats to the bat have been eliminated or reduced and populations are healthy and stable such that the species is no longer endangered or threatened with endangerment under the Endangered Species Act (ESA).  It is the first bat species delisted from the ESA due to recovery.

When the bat was first listed in 1988, fewer than 1,000 bats at only 14 known roosts were ...

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Posted in Listing

On April 19, 2018, the California Fish and Game Commission voted 4-0 to list the tricolored blackbird (Agelaius tricolor) as a threatened species. A statewide survey conducted in 2017 estimated the California population of the species to be over 175,000 birds. The species is broadly distributed in California, occurring in roughly 40 counties, though the bulk of the population resides in the Central Valley.

The Center for Biological Diversity petitioned for the emergency listing of the species in 2015, based on a dramatic decline in population estimates from 2008 to 2011 and again ...

On April 17, 2018, the U.S. Fish and Wildlife Service (Service) reached a negative 90-day finding on a petition to remove the Preble’s meadow jumping mouse (Zapus hudsonius preblei) from the List of Threatened and Endangered Species.  The Service’s finding was in response to a petition to delist the mouse filed by the Pacific Legal Foundation in 2017.  The Service concluded that the petition presented no new information indicating that delisting the mouse is warranted.

The Service rejected the petition’s taxonomic argument that the mouse is not a distinct subspecies that ...

On April 11, 2018, Arizona Governor Doug Ducey signed into law H.B. 2238, which amended the state’s administrative procedure laws to provide that courts are not required to defer to an agency’s legal interpretation in lawsuits over administrative decisions. The amendment effectively eliminated Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute.

The legal doctrine—named for the 1984 Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resource Defense Counsel, Inc., 467 U.S. 837, 842-844 ...

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On April 2, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a district court order directing that the National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers (Corps) and U.S. Bureau of Reclamation (Bureau) (collectively, the Federal Agencies) conduct spill operations and fish monitoring at dams and related facilities in the Federal Columbia River Power System (FCRPS).  The appeal was the latest development in a long-running dispute regarding salmon and steelhead species listed under the Endangered Species Act (ESA) that are impacted by FCRPS ...

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On April 3, 2018, the U.S. Fish and Wildlife Service (Service) published a final to rule listing the yellow lance mussel (Elliptio lanceolata) as threatened under the Endangered Species Act (ESA).  The final rule states that only seven populations of this freshwater mussel remain, all of which are located in Maryland, Virginia, and North Carolina.  The listing was prompted by a mega-petition filed by the Center for Biological Diversity and several other environmental organizations in 2010 that included the mussel.  In September 2015, after litigation had been filed regarding the ...

On April 2, 2018, the U.S. Fish and Wildlife Service (Service) proposed downlisting the Hawaiian goose (Branta sandvicensis), locally known as the nene, from endangered to threatened under the Endangered Species Act (ESA).  The Service also proposed adopting a special rule pursuant to ESA section 4(d), known as a section 4(d) rule, allowing incidental take of nene for particular conservation and law enforcement functions.

The nene was federally listed as endangered in 1967, after the population fell below 30 individuals on Hawaii’s Big Island.  The Service instituted a ...

On March 16, 2018, the U.S. Fish & Wildlife Service (FWS) announced the withdrawal of its 2016 proposed rule to list San Fernando Valley spineflower (Chorizanthe parryi var. fernandina), a southern California plant species, as a threatened species under the Endangered Species Act (ESA).  The spineflower’s conservation has been one component of the long-standing conflict over the development of Newhall Ranch in northern Los Angeles County, since its discovery on the property in 2000.

According to FWS, the spineflower no longer meets the statutory definition of a threatened or ...

On February 27, 2018, the National Marine Fisheries Service (Service) published a 90-day finding on the Karuk Tribe and Salmon River Restoration Council’s (Petitioners) petition to list the Upper Klamath-Trinity Rivers Basin (UKTR) Chinook salmon (Oncorhynchus tshawtscha) evolutionarily significant unit (ESU) as endangered or threatened.  Based on the information included in Petitioners’ filing, the Service found that listing the UKTR ESU as endangered or threatened under the Endangered Species Act (ESA) may be warranted.

The Service’s determination follows a ...

In Friends of the River v. National Marine Fisheries Service, the U.S. District Court for the Eastern District of California rejected challenges to Army Corps of Engineers and National Marine Fisheries Service decisions regarding the impact of dams, hydropower facilities, and water diversions along the Yuba River on listed fish species, the spring-run Chinook salmon (Oncorhynchus tshawytscha), the Central Valley steelhead (Oncorhynchus mykiss), and the North American green sturgeon (Acipenser medirostris).  In so doing, the court addressed a number of issues that may arise ...

On February 27, 2018, the U.S. Fish and Wildlife Service (FWS) finalized a regulation removing Eureka Valley evening-primrose (Oenothera californica ssp. eurekensis) from the Federal List of Endangered and Threatened Plants.  The delisting, originally proposed in 2014, is based on the elimination of threats to the subspecies, accomplished largely as a result of the 1994 designation and ongoing management of its dune habitat as federal wilderness within Death Valley National Park.  The National Park Service manages the federal wilderness area under the Park Service’s Organic ...

AWEA’s 2018 Wind Project Siting & Environmental Compliance Conference will be held from March 20-21, in Memphis, Tennessee.  Nossaman Environment and Land Use Partner Brooke Wahlberg and Senior Policy Advisor John Anderson will both be participating in the conference, where leaders from the wind industry, environmental permitting and compliance sector, the scientific community and regulatory officials come together for a robust discussion about the current state of siting and environmental compliance.  Discussions will provide key insights about wind energy development, operations, evolving trends, and strategies for improving the project permitting process and maximizing the output of operating assets, while increasing regulatory and legal certainty.

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On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispidaPhoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA).

Posted in Listing

At its February 2018 meeting, the California Fish and Game Commission (Commission) received the one-year status review report on a petition to list tricolored blackbird (Agelaius tricolor) as a threatened or endangered species from the Department of Fish and Wildlife (Department).  In the status report the Department recommends listing the species as threatened under the California Endangered Species Act.  Because the species is so widely distributed and abundant, listing could have major impacts on building, farming, and public infrastructure activities and projects across ...

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 March 16, 2018, Nossaman Environment and Land Use Law Partner Svend Brandt-Erichsen will be serving as a member of the faculty for The Seminar Group’s CLE and Foresters program Pacific Northwest Timberlands Management: Regulations, Litigation, and Business Considerations. 

The full conference, held from March 15-16, 2018, at the Portland, Oregon World Trade Center, will also be available via live webcast and on demand following the live presentation.  Mr. Brandt-Erichsen’s presentation, entitled Practice Pointers for Energy Projects on Timberlands, will take place at 2:30 p.m. PT and will cover:  energy project permitting needs and timelines; potential wildlife impacts and related mitigation needs; and providing construction access and access during the project’s operating life.

Additional topics to be addressed at the conference include:

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 ...

On January 30, 2018, the National Marine Fisheries Service (NMFS) issued a final rule listing the oceanic whitetip shark (Carcharinus lonigmanus) as a threatened species under the Endangered Species Act (ESA).  This final listing rule is the culmination of NMFS’ analysis following the 2015 petition filed by Defenders of Wildlife seeking to either list the species range-wide or, alternatively, to list two distinct populations (DPSs) of the oceanic whitetip shark.  In the final rule, NMFS notes that the shark is a globally-distributed species that has not undergone any range ...

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) that the U.S. Fish and Wildlife Service’s (Service) permit allowing take of the barred owl (Strix varia) to protect the threatened Northern spotted owl (Strix occidentalis caurina) did not violate the Migratory Bird Treaty Act (MBTA).  The U.S. District Court for the District of Oregon held that nothing in the MBTA limits take of a species for scientific purposes to only those situations where the research is aimed at conservation of the species taken.

The case arose from the Service’s 2008 Recovery ...

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On January 22, 2018, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhauser Co. v. U.S. Fish and Wildlife Service, No. 17-71.  Petitioners challenge a 2-1 panel decision issued by the United States Court of Appeals for the Fifth Circuit, affirming a rule issued by the U.S. Fish and Wildlife Service (Service) designating critical habitat for the dusky gopher frog (Rana sevosa) and including areas within critical habitat that the frog could not currently inhabit.

The dusky gopher frog spends most of its life underground in open-canopied pine forests.  ...

On February 9, 2018, Nossaman veteran Environmental Law attorney Steven Quarles will be serving as a member of the faculty for the American Law Institute (ALI) CLE program, Environmental Law 2018.  The full conference, held from February 8-9, 2018 in Washington, DC, is the first national program of its kind, and the slate of confirmed speakers includes top tier environmental sector leaders from both the public and private sectors.  This essential conference has become the place for legal and environmental professionals from across the country to meet and explore ...

On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit partially reversed and remanded a decision by the United States District Court for the District of Hawaii, delaying if not derailing an expansion in shallow-set longline swordfish fisheries.  Environmental groups brought claims against the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and the National Environmental ...

As 2018 approaches, the U.S. Fish and Wildlife Service (Service) made a few announcements that will likely impact the list of threatened and endangered species.  In these last 11 days of 2017, the Service announced 90-day findings on petitions to list or reclassify five species, and 12-month findings on petitions to list or de-list two species under the ESA.

  • On December 20, 2017, the Service announced 90-day findings on petitions for five separate species. The Service found that the petitioned actions for each of the five species may be warranted, based on the information presented in ...

On December 22, 2017 the Department of the Interior (DOI) Solicitor's Office issued its revised interpretation of the Migratory Bird Treaty Act’s (MBTA) prohibition on the take of migratory bird species.  Official opinions from the DOI Solicitor’s Office are known as M Opinions and carry substantial weight in how DOI applies and enforces the various wildlife laws under its purview.  In January 2017, the prior DOI Solicitor issued Opinion M-37041, Incidental Take Prohibited Under Migratory Bird Treaty Act, which concluded that the MBTA’s broad prohibition on taking and ...

In the Fall 2017 publication of the Unified Agenda of the Office of Information and Regulatory Affairs, the Department of the Interior announced its intent to revise the U.S. Fish and Wildlife Service’s regulations governing interagency cooperation and exceptions to the conservation of endangered and threatened species of fish, wildlife, and plants. In a separate announcement in the same publication, the Department of the Interior stated that it intends to revise regulations governing the listing of endangered and threatened species and the designation of critical ...

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 ...

On November 8, 2017, the House of Representatives Committee on Natural Resources approved an amendment to oil and gas-related legislation, the SECURE Act (H.R. 4239), that is intended to obviate liability for the incidental or accidental take of migratory birds under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. (Act).  The amendment, submitted by Congresswoman Liz Cheney (R-WY), provides: This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful ...

Posted in Listing

On October 17, 2017, the California Fish and Game Commission (Commission) published notice of its preliminary positive finding on a petition to list the Cascades frog (Rana cascadae) as threatened or endangered under the California Endangered Species Act (CESA).  The Cascades frog inhabits a variety of habitats—including large lakes, ponds, wet meadows and streams—at mid-to-high elevations from the Klamath-Trinity region, along the Cascades Range axis in the vicinity of Mt. Shasta, southward to the headwater tributaries of the Feather River.  The California populations ...

The U.S. Fish and Wildlife Service (Service) has requested (pdf) public comment on its revised Mitigation Policy and the Endangered Species Act Compensatory Mitigation Policy (ESA-CMP). The U.S. Department of the Interior previously noted that the Service would be seeking comments on the two policies when it issued its report entitled Review of the Department of the Interior Actions that Potentially Burden Domestic Energy in response to Executive Order 13783. These reviews are the latest step in an effort to identify and remove regulatory impediments to domestic energy ...

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On October 25, 2017, the U.S. Department of the Interior (DOI) released a report entitled Review of the Department of the Interior Actions that Potentially Burden Domestic Energy identifying agency actions that potentially burden the development or use of domestic energy resources.  This report, generated in response to Executive Order 13783, identifies several costly and burdensome regulations that DOI believes hamper the production or transmission of domestic energy.  The report pays particular attention to the oil, natural gas, coal, and nuclear energy sectors, and ...

It has been a busy October for the greater sage grouse (Centrocercus urophasianus). On October 11, 2017, the Bureau of Land Management (BLM) announced its intention to amend the existing greater sage grouse habitat management plans. The announcement applies to 98 plans across ten states. The Obama Administration finalized the plans in 2015 after ten years of coordination among stakeholders, including tribes, local and state government, environmental organizations, and the regulated community, as previously reported here. The U.S. Fish and Wildlife Service (Service) relied ...

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Nossaman LLP’s own Steven P. Quarles and Brooke M. Wahlberg are co-chairing CLE International’s upcoming 2nd Annual MBTA and BGEPA:  Hot Topics in Avian Protection conference.  This timely, in-person CLE will explore the complexities of federal wildlife laws and rules to protect migratory birds and eagles under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).  Speakers will include state and federal policy makers, industry leaders, environmental advocates, and leading practitioners in the field.  Held in Denver, Colorado, from November 30 through December 1, the conference presents a unique opportunity for professionals involved in and affected by endangered species issues, rules, and regulations to learn from in-depth presentations on topics including:

On Thursday, October 5, 2017, the U.S. Fish & Wildlife Service (Service) announced 12-month not warranted findings on petitions to list 25 species as endangered or threatened under the Endangered Species Act (ESA).  It is likely that the Service’s not warranted findings represent the Trump administration’s departure from the previous administration’s  90-day determinations wherein the Service found that the petitions contain substantial information that listing may be warranted.  For over half of the 25 species, the not warranted findings satisfy the terms of various ...

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 ...

On Friday, September 29, 2017, the U.S. Fish & Wildlife Service (Service) announced its withdrawal of the proposed rule listing the Kenk’s amphipod (Stygobromus kenki), an aquatic crustacean, as an endangered species under the Endangered Species Act (ESA).  The Service originally proposed to list the amphipod, which occurs in the District of Columbia, Virginia, and Maryland, in September 2016 due to the impacts of water quality, water quantity, and other collateral impacts of urbanization near the species’ habitat.  In support of its decision to withdraw the proposed ...

On September 20, 2017, the U.S. Fish and Wildlife Service (USFWS) listed three separate species under the Endangered Species Act ("ESA").  USFWS listed the Sonoyta mud turtle (Kinosternon sonoriense) as endangered, and the 'I'iwi (Drepanis coccinea) and pearl darter (Percina aurora) as threatened species under the ESA.  Despite listing all three species, the USFWS deferred designating critical habitat for the three species.  The three listing decisions, all of which were compelled by settlements that the USFWS entered into during the Obama administration, are summarized below.

Posted in Court Decisions

On August 28, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court decision upholding a U.S. Fish and Wildlife Service (Service) determination that the Sonoran Desert Area bald eagle does not constitute a distinct population segment (DPS) under the Endangered Species Act (ESA).  Ctr. for Biological Diversity v. Zinke, No. 14-17513, 2017 WL 3687443 (9th Cir. Aug. 28, 2017).  The court deferred to the Service’s interpretation of its DPS policy, holding that the Service reasonably applied the relevant factors and considered scientific evidence to support ...

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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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