Endangered Species Law & Policy

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 ...

On October 16, 2018, the Xerces Society for Invertebrate Conservation, Defenders of Wildlife, and the Center for Food Safety submitted a petition to the California Fish and Game Commission (Commission) to list the Crotch bumble bee (Bombus crotchii), Franklin's bumble bee (Bombus franklini), Suckely cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered under the California Endangered Species Act.  The Commission is required under the California Fish and Game Code to refer the petition to the California Department of Fish ...

On October 1, 2018, the U.S. Supreme Court heard oral argument in the first case of its new term, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71. The case concerns the designation of critical habitat under the Endangered Species Act (ESA) for the dusky gopher frog (Rana sevosa) in an area that is not currently capable of sustaining a frog population. The central issue in the appeal is whether an area that currently does not possess some of the characteristics deemed essential for the frog’s survival may nevertheless be designated as unoccupied critical habitat for ...

The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA):

• In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis). The court held that the Service violated the ESA when it delisted the Greater Yellowstone grizzly distinct population segment (DPS) without any analysis of ...

As we reported here, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (together, the Services) recently proposed revisions to the regulations that implement portions of the Endangered Species Act (ESA). The submission deadline for comments was September 24, 2018.  If enacted, the Services assert that the proposed revisions would, among other things, streamline ESA consultations with other federal agencies and clarify the jeopardy standard.

The proposed revisions sparked a flurry of last minute comment submissions from environmental groups, who ...

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the ...

On September 4, 2018, the Center for Biological Diversity filed a lawsuit under the federal Freedom of Information Act against the U.S. Fish and Wildlife Service (Service).  The lawsuit alleges that the Service has used irresponsible scientific methods while conducting its review of the endangered status for the American burying beetle (Nicrophorus americanus) pursuant to the Endangered Species Act (ESA).  The lawsuit was triggered, in part, by a letter to the Service authored by one of the scientists who initially participated in the Service’s risk assessment for the beetle ...

On August 23, 2018, the California Fish and Game Commission ("Commission") listed the Humboldt marten (Marten caurina humboldtensis) as an endangered species under the California Endangered Species Act (CESA).  The Commission also ratified its decision to list the Lassics lupine flower (Lupinus constancei) as an endangered plant under CESA.

Members of the weasel family, Humboldt martens were previously designated as a California Species of Special Concern and are currently under review for listing under the federal Endangered Species Act.  Over the last quarter century ...

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 ...

This week, the media has reported two changes in key roles at the Department of the Interior (DOI) and U.S. Fish and Wildlife Service (USFWS).  Greg Sheehan has reportedly left his role as Principal Deputy Director of USFWS.  Sheehan had held the role since appointed by DOI Secretary Zinke in June 2017.  As the Trump administration has not yet filled the role of Director of the USFWS, Sheehan had been the top official within USFWS.  Sheehan is expected to leave his role next week.

The media also reported this week that Andrea Travnicek has been named as Acting Assistant Secretary for Fish ...

In recent weeks, the Trump Administration and Congress have proposed changes to the Endangered Species Act (ESA) and its implementing regulations. Lawmakers from the Congressional Western Caucus introduced nine bills that would, according to the 15 legislators that introduced the bills, amend and modernize the ESA.  The lawmakers assert that the bills would also incentivize voluntary conservation efforts, let states enter into cooperative agreements for recovery, and prioritize data from local communities in making scientific decisions about conservation.

The bills ...

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 ...

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 ...

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 ...

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 ...

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).  ...

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.

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 ...

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

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 ...

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 ...

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 ...

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.

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 hispida, Phoca 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).

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 ...

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 ...