Endangered Species Law & Policy

Today, the U.S. Fish and Wildlife Service (USFWS) released a pre-publication version of its long-awaited update to regulations governing Migratory Bird Treaty Act (MBTA) implementation (Proposed Regulations). Significantly, the Proposed Regulations explicitly state that unintentional, non-purposeful, or “incidental” take of migratory birds is not prohibited by the MBTA’s “take” prohibition. USFWS has also published a pre-publication version of a notice of intent (NOI) to prepare an environmental impact statement pursuant to the National Environmental ...

Yesterday, in Center for Biological Diversity v. Everson​, the United States District Court for the District of Columbia overturned the U.S. Fish and Wildlife Service’s (USFWS) decision to list the northern long-eared bat (Myotis septentriodnalis) as threatened rather than endangered, and remanded the decision back to the agency.  The threatened listing will remain intact while USFWS undertakes a new listing decision.

In addition to remanding the threatened listing decision back to the USFWS, the court also vacated a portion of the USFWS’s and National Marine ...

On January 28, 2020, the U.S. Fish and Wildlife Service (USFWS) published a notice and request for information in connection with USFWS’s initiation of 5-year status reviews for 66 species found in California and Nevada.  Among the species subject to review are the bay checkerspot butterfly (Euphydryas editha bayensis), Sierra Nevada yellow-legged frog (Rana sierra), the California tiger salamander (Ambystoma californiense), Morro Bay kangaroo rat (Dipodomys heermanni morroensis), and many other plants and wildlife species.  A full list of species subject to the 5-year ...

On Tuesday, January 14, 2020, the U.S. Fish and Wildlife Service (Service) published a federal register notice that it will be commencing a comprehensive study of the status of the Grizzly bear (Ursus arctos horribilis).  This study, called a 5-year status review, could lead to a change in the bear’s status as a protected species under the Endangered Species Act (ESA).  This 5-year review was spurred by a lawsuit filed by the Center for Biological Diversity, which alleged that the Service failed to complete the required status review on time.  The Service and Center for Biological ...

On January 15, 2020, the United States Court of Appeals for the Fifth Circuit reversed a lower court decision that upheld the determination of the U.S. Fish and Wildlife Service (Service) denying a petition to delist the Golden-Cheeked Warbler (Setophaga chrysoparia) (Warbler). The Service listed the Warbler as an endangered species under the Endangered Species Act (ESA) in 1990, initially on an emergency basis.

The petition to delist the Warbler was submitted to the Service in 2015 by a group of petitioners that included the General Land Office of the State of Texas. The petition ...

On January 6, 2020, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the Kanab ambersnail (Oxyloma haydeni kanabensis) is no longer warranted for listing as an endangered species under the federal Endangered Species Act (ESA). The proposed rule states that the Kanab ambersnail does not represent a valid taxonomic entity, and therefore does not meet the definition of “species” under the ESA. The ESA defines “species” as including ''any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

The Kanab ambersnail, which gets its name from its mottled, amber-colored shell, is a terrestrial snail ...

On January 10, 2020, the Council on Environmental Quality (CEQ) proposed amendments to National Environmental Policy Act (NEPA) implementing regulations.  The Proposed Rule would represent the first significant overhaul of CEQ’s NEPA regulations in more than 40 years.

The changes in the Proposed Rule are substantial and numerous. 

While the stated purpose of the changes is to facilitate more effective and timely environmental review of federal agency actions, the practical impact of the proposed changes is far from clear.  Below, we focus on some of the more significant ...

Today, the Trump Administration announced its long-awaited release of updates to National Environmental Policy Act (NEPA) implementation regulations (Regulations).  On June 20, 2018, the administration published an advanced notice of proposed rulemaking (ANPR) and sought public comment on how the Council on Environmental Quality (CEQ) could ensure more effective, timely, and efficient NEPA process.  During the 60-day comment period on the ANPR, more than 12,500 comments were received.

The administration has indicated the proposed Regulations will be posted to the Federal ...

The U.S. District Court for the District of Montana has approved a partial settlement between the Center for Biological Diversity (CBD) and the U.S. Fish and Wildlife Service (Service) requiring that the Service complete and post a status review of the lower-48 grizzly bear (Ursus arctos horribilis) populations no later than March 31, 2021.  Earlier this year, CBD filed a lawsuit challenging the Service’s alleged failure to update a 1993 federal recovery plan for the species.  The partial settlement disposes of CBD’s first claim for relief, which alleged that the Service had ...

Today, the U.S. Senate confirmed Aurelia Skipwith as the Director of the U.S. Fish and Wildlife Service (USFWS) by a vote of 52-39.  Ms. Skipwith’s confirmation fell mostly along party lines, with three Democratic Senators joining Republicans in approving the nomination.  With Ms. Skipwith’s confirmation, the USFWS will have its first Director of the USFWS since the beginning of the Trump Administration.

Prior to her confirmation, Ms. Skipwith served as the Interior Department’s Deputy Assistant Secretary for Fish, Wildlife and Parks. She is a co-founder and former general ...

On November 21, 2019, the California Secretary for Natural Resources announced California’s decision to sue the federal government over its biological opinions for continuing operations of the California State Water Project (SWP) and federal Central Valley Project (CVP). 

The Projects provide water to over 20 million of Californians and support the businesses and farms across the state.  In his announcement, the Secretary notes that “Difficult trade-offs have to be made unless we can find creative solutions that balance all water needs.  And even then, sometimes tough ...

On November 1, 2019, Chad Ponce of Jacksonville, Florida pleaded guilty to killing a smalltooth sawfish (Pristis pectinata), an endangered species protected under the federal  Endangered Species Act (ESA) and Florida Endangered and Threatened Species Act . Sawfishes are a family of rays characterized by a long, narrow, flattened rostrum, or nose extension, lined with sharp teeth, arranged in a way that resembles a saw. Sawfish use that rostrum to sense and attack prey; without it, they can’t survive. They are among the largest fish, with some species reaching lengths of up to 17-18 ...

Please join Brooke Wahlberg and Steve Quarles as they co-chair CLE International’s 3rd Annual MBTA & BGEPA Conference, happening on December 9-10, 2019, in Denver, CO. 

Named as both an “Energy & Environmental Trailblazer” by the National Law Journal, and a “Legend of Environmental Law” by the D.C. Bar Association, Steve is a veteran attorney who focuses his practice on addressing issues concerning federal wildlife laws (Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA) and Bald and Golden Eagle Protection Act (BGEPA)), federal lands and resources ...

On October 24, 2019, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the interior least tern (Sterna antillarum) is no longer warranted for listing as an endangered species under the Endangered Species Act (ESA).

The interior least tern, the smallest of the tern species in North America, was first observed in 1804 by explorers Meriwether Lewis and William Clark. The fish-mongering bird currently nests adjacent to major U.S. rivers within the Lower Mississippi Valley and the Great Plains region across ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the ...

On September 26, 2019, the U.S. District Court for the District of Colorado vacated and remanded in part the U.S. Fish and Wildlife Service’s (Service) 2014 determination that listing the Rio Grande cutthroat trout (Oncorhynchus clarki virginalis) under the Endangered Species Act (ESA) was not warranted.

The Rio Grande cutthroat trout is native to high-altitude streams in southern Colorado and New Mexico. In 2008, the Service determined that the Rio Grande cutthroat trout warranted listing as an endangered or threatened species, although listing was precluded by other higher ...

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.

The two elephants, Emily and Ruth, were longtime residents of the Buttonwood Park Zoo in the City of New Bedford, Massachusetts. In fact, according to the decision, Emily and Ruth are ...

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) announced the finalization of regulations governing implementation of various aspects of the Endangered Species Act (ESA). Among those regulations were rules setting forth how the Services and other federal agencies were to consult on potential impacts of federal activities on ESA-listed species and designated critical habitat.  The new rules were to go into effect on September 26, 2019.  Today, the Services announced that the effective date for the interagency consultation ...

On September 13, 2019, the U.S. Fish and Wildlife Service (Service) posted a final rule removing the Foskett speckled dace (Rhinichthys osculus ssp.) from the federal List of Endangered and Threatened Wildlife.  The dace, which was listed under the Endangered Species Act (ESA) as a threatened species in 1985, is being removed from the List of Threatened and Endangered Species on the basis of recovery.  In its final notice, the Service indicates that the threats to the dace have been “eliminated or reduced to the point where [the dace] no longer meets the definition of an endangered or ...

On August 6, 2019, the U.S. Fish and Wildlife Service (FWS) published a 90-day finding that listing the Yellowstone Park bison (Bison bison bison) under the Endangered Species Act is not warranted. FWS also found that listing the Mojave poppy bee (Perdita meconis) and revising the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) may be warranted ...

On August 15, 2019, the U.S. Fish and Wildlife Service (FWS) published a series of notices in the Federal Register announcing the agency’s 12-month and 90-day findings on petitions to list a number of species under the Endangered Species Act (ESA).  Most prominently, the FWS declined to list two species commonly known as the Joshua tree (Yucca brevifolia and Yucca jaegeriana) ...

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register ...

The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA).  On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States ...

The U.S. Fish & Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach ...

In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (Service) has put into action its internal plan to add quantitative criteria to recovery plans.  The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted.  In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has recovered, including the number of established populations that would make the ...

The Center for Biological Diversity and Mountain Lion Foundation submitted a petition to the California Fish and Game Commission (the Commission) to list mountain lions (Puma concolor) in southern and central California as threatened or endangered pursuant to the California Endangered Species Act.  The petition identifies habitat loss and fragmentation, due to roads and development, as significant threats to the survival of the local populations.

The petition acknowledges that there is no reliable estimate of mountain lion abundance in California, but includes estimates for ...

On June 12, 2019, the California Fish and Game Commission (Commission) voted 3-1 that listing four subspecies of bumble bee may be warranted under the California Endangered Species Act (CESA).​  The decision was made after the Xerces Society, Center for Food Safety, and Defenders of Wildlife filed a petition to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckley cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered species under CESA.

Presently, no insects are ...

On May 22, 2019, the U.S. Fish and Wildlife Service (FWS) announced a proposal to list two intriguing North Carolina aquatic species under the Endangered Species Act (ESA). The FWS was spurred to act in part by a 2010 petition and subsequent litigation from environmental organizations to list over 400 aquatic species found in the southeastern United States. The two species the agency deems as needing protection in this proposed rule are the Carolina madtom (Noturus furiosus), a poisonous catfish, and the Neuse River waterdog (Necturus lewisi), a freshwater salamander.

The Carolina ...

On April 29, 2019, Governor Newsom issued Executive Order N-10-19 (EO) directing the California Natural Resources Agency, the California Environmental Protection Agency, the California Department of Food and Agriculture, in consultation with the Department of Finance (collectively, the agencies), to prepare a 21^st century water resilience portfolio to meet the needs of California’s communities, economy and environment in the face of water supply uncertainty, climate change and the state’s growing population.  The EO’s sweeping directive requires the agencies ...

On May 3, 2019, the U.S. Fish and Wildlife Service (Service) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (ESA) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year ...

On April 23, 2019, the U.S. Court of Appeals for the Ninth Circuit found that environmental groups have standing to challenge the federal government’s killing of gray wolves in Idaho without conducting additional analysis under the National Environmental Policy Act (NEPA). Western Watersheds Project et al. v. Grimm, No. 18-35075 (9th Cir. 2019).

Environmental groups brought an action against the U.S. Department of Agriculture Wildlife Services (Wildlife Services), alleging that NEPA requires Wildlife Services to prepare an Environmental Impact Statement and ...

Over the last few weeks, besides proposing to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Species (which we covered here), the U.S. Fish and Wildlife Service (Service) has made a few other moves related to the Endangered Species Act (ESA).

On Monday, April 8, 2019, the Service published a final rule, removing one species from the List of Endangered and Threatened Species, adding 16 separate species to the list, and updating the existing entries for 17 more species.  Specifically, the Service added the following species to the ESA List: Gulf grouper ...

On March 28, 2019, a federal judge overturned the U.S. Fish and Wildlife Service’s (USFWS) rejection of a petition to delist an endangered karst invertebrate species, the Bone Cave harvestman (Texella reyeisi) (BCH), which is known to occur only in central Texas.

American Stewards of Liberty and others (Plaintiffs) had claimed that USFWS’ rejection of a 2014 petition to delist the BCH was arbitrary and capricious because, among other things, USFWS based its rejection on the petition’s supposed failure to provide BCH population trend data that was unavailable and is ...

On March 27, 2019, the Supreme Court of the United States heard oral argument in Kisor  v. Wilkie (No. 18-15), focusing on whether Auer deference should be overruled.  While the dispute is not environmental in nature, this case has nonetheless attracted significant attention from the environmental community due to the potentially significant implications to environmental litigation.  Auer deference (or Seminole Rock deference) requires courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations.  Enforcement actions ...

On March 15, 2019, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Wildlife.  As we reported here, the Service announced its intention to issue the proposed rule earlier this month.  According to the Service, the species’ population has rebounded considerably since it was originally listed in 1978, when the population estimate was approximately 1,000 individuals.  Now, the Service estimates there is a Great Lakes meta-population with approximately 4,400 individuals, along with an ...

Acting Secretary of the U.S. Department of the Interior, David Bernhardt, recently announced that the U.S. Fish and Wildlife Service (Service) will publish a proposed rule removing federal protections under the Endangered Species Act for the endangered gray wolf (Canis lupus).  Secretary Bernhardt announced the plan at the 84th North American Wildlife & Natural Resources Conference in Denver, Colorado.

The gray wolf was originally listed as endangered in March 1978 throughout the contiguous United States, except in Minnesota, where the Service classified the species as ...

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 ...

On February 6, 2019, a federal judge upheld U.S. Fish and Wildlife Service’s (Service) 90-day finding that a petition to delist the endangered golden-cheeked warbler (Petition) did not present substantial information that delisting the warbler may be warranted (Negative 90-day Finding). In 2015,  various groups and individuals filed the Petition, which, among other things, alleged that because a 2015 study indicated that the golden-cheeked warbler and its habitat were far more abundant than the Service originally believed at the time of the bird’s listing in 1990, the bird ...

In an article published online this week in BioScience, the American Institute of Biological Sciences' scholarly journal, Drs. Dennis Murphy and Paul Weiland contribute to the literature on independent scientific review, focusing on the review of federal agency determinations under the Endangered Species Act. They describe the types of decisions that can benefit from independent scientific review.

They also describe past shortcomings in undertaking such reviews, relying on specific examples from past reviews. Identification of such shortcomings feeds into the principal ...

On January 31, 2019, the U.S. Fish and Wildlife Service (USFWS) announced plans to amend up to 182 Endangered Species Act (ESA) recovery plans, which potentially cover over 305 animal and plant species, over the next year. These amendments will revise each recovery plan to include quantitative recovery criteria as part of the Department of the Interior’s Agency Priority Performance Goals. USFWS kicked off this 12-month push by releasing a notice of availability of 26 draft recovery plan amendments ...

On January 28, 2019, the Superior Court for San Diego County upheld the California Fish and Game Commission’s (Commission) 2015 decision to list the gray wolf (canis lupus) under the California Endangered Species Act (CESA). (Cal. Cattlemen’s Assn. v. Cal. Fish & Game Com. (Super. Ct. San Diego County, 2019, No. 37-2017-00003866-CU-MC-CTL).)

CESA defines an endangered species as a native species or subspecies of bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or ...

As we previously reported, more than 150 organizations have requested that the Department of the Interior (DOI) extend the public comment period associated with DOI’s proposed changes to how it will process requests for information under the Freedom of Information Act (FOIA) (Proposed Regulations) by no less than 120 days due, in part, to the partial government shutdown.  Without referencing or responding to these multiple requests, DOI announced that it will extend the comment period for the Proposed Regulations by a single day. According to the announcement from DOI, the ...

The longest partial government shutdown in United States history is taking its toll on Endangered Species Act (ESA) policy initiatives championed by the Trump Administration, and is making ESA compliance and project completion significantly more difficult for a wide spectrum of industries. In July 2018, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service published proposed changes to ESA implementing regulations relating to species listings, de-listings, critical habitat designations, and consultations under section 7 of the ESA. The ...

The effects of the partial Federal government shutdown are being felt at the U.S. Fish and Wildlife Service ("Service"). The shutdown has virtually halted the Service's processing of pending rulemakings under the Endangered Species Act ("ESA"). As an example, while the comment period on the Service's proposed designation of 370 miles of critical habitat for the endangered candy darter (Etheostoma osburni) -- a freshwater fish found in portions of West Virginia and Virginia -- ran from November to January, the Service has posted only a handful of responsive comments online, with ...

On December 28, 2018, the Department of the Interior (DOI) published proposed changes to its rules governing how it processes requests for records under the Freedom of Information Act (FOIA) and provided a 30-day timeframe in which the public could submit comments to the DOI concerning those changes. The public review and comment period is currently scheduled to close on January 28, 2019. However, the partial government shutdown has caused several groups to question whether or not the public comment period should, in fact, close as scheduled. More than 1,200 comments have been ...

The impacts of the federal government’s partial shutdown have been felt nationwide, as restricted operations and furloughs delay or otherwise complicate governmental processes. As an example, E&E News reports that conservation organizations’ efforts to formally protest proposed revisions to greater sage grouse (Centrocercus urophasianus) conservation plans have been thwarted by alleged problems with the Department of Interior’s website, which restricted access to certain documents due to the partial government shutdown.

The deadline for filing protests to the ...

Nossaman’s Environmental Practice attorneys will be off to a great start in 2019 presenting at many key events around the U.S. focused on endangered species and environmental issues.

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 ...