• Posts by Liz Klebaner
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    Liz Klebaner advises public agency and corporate clients on a variety of complex land use and environmental matters, and she litigates in both state and federal court.  While based in Nossaman’s Los Angeles office, Liz has strong ...

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 21st 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 ...

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 ...

Posted in Listing

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 ...

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Posted in Listing

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 ...

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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 ...

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.

Battle lines are being drawn in connection with ongoing efforts by lawmakers to reform the Endangered Species Act (ESA).  In a letter addressed to the leaders of both houses of Congress, the Senate Environmental and Public Works Committee and the House Committee on Natural Resources, more than 400 groups requested lawmakers to oppose any bill, rider, or other policy proposal that weakens protections for endangered species and habitat.  The letter's signatories include non-governmental organizations based throughout the United States, as well as national non-profits Natural ...

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Posted in Court Decisions

On April 11, 2017, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) held in Carpenters Industrial Council v. Zinke, 2017 U.S.App.LEXIS 6175, that a lumber company trade association had standing to challenge a U.S. Fish and Wildlife Service (USFWS) regulation designating critical habitat for the northern spotted owl (Strix occidentalis caurinan).  Reversing the district court’s decision, the D.C. Circuit found that plaintiff demonstrated a substantial probability that the regulation would decrease the supply of timber from ...

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Posted in Court Decisions

On February 21, 2017, the U.S. Court of Appeals for the Ninth Circuit held that the San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively, Water Contractors) lacked Article III standing to pursue an Endangered Species Act (ESA) claim against the U.S. Department of the Interior and U.S. Bureau of Reclamation (collectively, the Federal Defendants) in connection with the Federal Defendants’ water flow augmentation for the Lewiston Dam.  San Luis & Delta-Mendota Water Authority v. Haugrud, Case Nos. 14-17493, 14-17506, 14-17515, and 14-17539.

The ...

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The U.S. Fish and Wildlife Service (Service) recently published a positive 90-day finding on a petition to list the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) and three distinct population segments as endangered under the Endangered Species Act ("ESA").  The petition was filed by WildEarth Guardians, the Center for Biological Diversity, and Defenders of Wildlife on September 8, 2016.  The Service will initiate a status review for the Lesser Prairie-Chicken, followed by a determination regarding whether listing is warranted.

The listing petition was submitted ...

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Posted in Court Decisions

On October 11, 2016, the U.S. Supreme Court denied the U.S. Forest Service’s (Forest Service) petition for writ of certiorari to review the U.S. Court of Appeal for the Ninth Circuit's decision in Cottonwood Environmental Law Center v. Forest Service, 789 F.3d 1075 (9th Cir. 2015).  The key issues in the case related to standing, the justiciability of programmatic planning documents, and whether section 7 of the Endangered Species Act (ESA) may require a federal agency to reinitiate consultation with the U.S. Fish and Wildlife Service (USFWS) even after the agency has taken a ...

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Posted in Listing

On August 25, 2016, the California Fish and Game Commission (Commission) voted unanimously to list the northern spotted owl (Strix occidentalis caurina) as a threatened species under the California Endangered Species Act.  The owl is already listed as a threatened species under the Federal Endangered Species Act.  The Commission's action increased protections for the species by allowing for state and citizen enforcement actions through the California Department of Fish and Wildlife and the state courts.

In California, the northern spotted owl’s range extends south along ...

On July 27, 2016, the U.S. Fish and Wildlife Service (USFWS) published a Federal Register notice of its final Methodology for Prioritizing Status Reviews and Accompanying 12-Month Findings on Petitions for Listing Species under the Endangered Species Act (Methodology).  The final Methodology clarifies several of the terms and processes identified in the draft Methodology.

The Methodology establishes five prioritization categories, or bins, to inform a multi-year National Listing Workplan that will cover proposed and final listing determinations, as well as proposed and ...

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Posted in Court Decisions

On June 3, 2016, the U.S. Court of Appeals for the D.C. Circuit held in Friends of Animals v. Jewell (No. 1:14-cv-00357) that Plaintiff Friends of Animals (Plaintiff) had Article III standing to pursue a constitutional claim on the ground of informational injury.  The court, however, rejected the merits of Plaintiff’s challenge to a U.S. Fish and Wildlife Service (FWS) regulation establishing a limited exemption from the Endangered Species Act’s (ESA) section 9 take prohibition for three antelope species (scimitar-horned oryx, Oryx dammah; addax, Addax nasomaculatus; and ...

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On April 28, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a revised Biological Opinion and Incidental Take Permit for the Rosemont Copper Mine in Pima County, Arizona. USFWS originally issued a Biological Opinion and Incidental Take Permit for the mine project in 2013. Consultation with USFWS was reinitiated in 2015 primarily due to the listing of additional species not considered during the initial consultation.

The Rosemont Copper Mine is proposed on approximately 955 acres of private land and 75 acres of Arizona State Land Department land, on the east side of the ...

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On March 15, 2016, in Alaska Oil & Gas Association v. National Marine Fisheries Service, case number 4:14-cv-00029-RRB, the U.S. District Court for the District of Alaska vacated a final regulation promulgated by the National Marine Fisheries Service ("NMFS") 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 ("ESA").  The State of Alaska, North Slope Borough and the Alaska Oil ...

Posted in Court Decisions

On February 11, 2016, in Kuehl v. Cricket Hollow Zoo, Case No. C14-2034, the United States District Court for the Northern District of Iowa ruled that the owners and operators of the Cricket Hollow Zoo, located in rural Manchester, violated the Endangered Species Act's (ESA) take prohibition by failing to provide adequate sanitation and timely veterinary care to tigers, and failing to provide adequate sanitation, in compliance with generally accepted animal husbandry practices, and appropriate environmental enrichment to lemurs under their care.  The court reasoned that the ...

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Posted in Delisting

The U.S. Fish and Wildlife Service (USFWS) has announced that it will remove the Johnston’s frankenia (Frankenia johnstonii) from the Federal List of Endangered and Threatened Plants under the Endangered Species Act.  Johnson frankenia is a perennial shrub endemic to Starr, Webb and Zapata Counties in Texas and the northeastern part of the Mexican states of Nuevo Leon, Coahuila and Tamaulipas.  The shrub may be found in very salty soils in open, rocky, gypseous hillsides or saline flats.

USFWS listed the species in 1984, when there were five known populations of this perennial ...

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On November 19, 2015, the Center for Environmental Science, Accuracy and Reliability (CESAR) filed a lawsuit against the California Department of Water Resources (DWR), the U.S. Department of the Interior (Interior) and the U.S. Fish & Wildlife Service (USFWS) (collectively, Federal Defendants) for violating the Endangered Species Act (ESA) in connection with the installation, operation and removal of an emergency drought salinity barrier at West False River in the Sacramento-San Joaquin River Delta. The complaint was filed in the U.S. District Court for the Eastern ...

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In a notice published on October 8, 2015, the U.S. Fish and Wildlife Service (Service) announced its proposed 12-month finding on the Center for Biological Diversity’s (CBD) petition to list the Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the federal Endangered Species Act. The Service determined that listing of the subspecies is not warranted because the fox is more abundant than previously believed and because known and potential stressors to the fox are not likely to cause the subspecies to become endangered in the foreseeable future ...

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Senator Dianne Feinstein (D-CA) introduced a bill last week to help address ongoing and future drought in California. The bill, known as the California Emergency Drought Relief Act (Act), is expected to be folded into broader legislation addressing the historic drought in the Western United States. The bill’s goals are to move existing water supplies and develop new  water sources in order to help those communities suffering the worst effects of the drought, while complying with the existing regulatory regime under the Endangered Species Act and the Clean Water Act. Senator ...

Posted in Conservation

On May 29, 2015, the U.S. Bureau of Land Management (BLM),  in cooperation with the U.S. Forest Service, released Final Environmental Impact Statements for proposed amendments to existing Resource Management Plans (RMPs) for lands in ten western states.  The RMP amendments would establish conservation measures for the greater sage grouse (Centrocercus urophasianus) for approximately 50 million acres of federally-managed lands in California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah and Wyoming. The proposed RMP amendments are intended to ...

Last week, Washington State Representative Dan Newhouse introduced the Pacific Northwest Gray Wolf Management Act (H.R. 1985), which would remove Endangered Species Act (ESA) protection for the gray wolf (Canis lupus) within Washington, Oregon, and Utah.  H.R. 1985 is the third bill  introduced in the 114th Congress (2015-2016) proposing to delist the gray wolf within specified states.  H.R. 843 and H.R. 884, introduced in February, would effectively delist gray wolves in Minnesota, Wisconsin, and Michigan and in the Western Great Lakes region and ...

On March 26, 2015, House of Representatives Republican Cynthia Lummis (R-WY) introduced a bill (H.R. 1667) to amend Section 4(b) of the Endangered Species Act (ESA) to require the Secretary of Interior to make publicly available on the Internet the best scientific and commercial data available that are the basis for reach regulation, including each proposed regulation for listing decisions regarding endangered or threatened status for wildlife and plant species.  H.R. 1667 does not require the Secretary of the Interior to post information that is prohibited from disclosure ...

Posted in Delisting

On February 17, 2015, the U.S. Fish and Wildlife Service announced its final decision to remove the Oregon chub (Oregonichthys crameri) from the Federal List of Endangered and Threatened Wildlife under the Federal Endangered Species Act (ESA). The decision to delist the chub also removes designated critical habitat for the chub throughout its range.

The Oregon chub is endemic to the Willamette River drainage of western Oregon. The Service listed the Oregon chub as endangered on October 18, 1993. The Service designated critical habitat for the chub in a final rule published on March ...

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Posted in Listing

On October 24, the U.S. Fish and Wildlife Service (Service) published a final rule listing the Dakota skipper (Hesperia dacotae) as a threatened species and the Poweshiek skipperling (Oarisma poweshiek) as an endangered species under the Endangered Species Act.  The Dakota skipper is found in Minnesota, North Dakota, South Dakota, Manitoba and Sasketchewan, and that the Poweshiek skipperling is found in Michigan, Minnesota, Wisconsin, and Manitoba.  The Service determined that the Dakota skipper is likely to become endangered throughout all of its range within the ...

Posted in Listing

On September 12, 2014, the U.S. Fish and Wildlife Service (Service) published notice of its final rule listing the Georgia rockcress (Arabis georgiana) as a threatened plant species under the Endangered Species Act.  On the same day, the Service published notice of its final rule designating 732 acres within Georgia and Alabama as critical habitat for the species.  Designated critical habitat for the Georgia rockcress includes riparian and river bluff habitat within Gordon, Floyd, Harris, Muscogee and Clay Counties in Georgia and Bibb, Dallas, Elmore, Monroe, Sumter, and ...

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Tags: Listing

Yesterday, the U.S. Fish and Wildlife Service (USFWS) posted a Notice of Availability of the Revised Draft Recovery Plan for the Coterminous United States Population of Bull Trout (pdf). The plan is intended to manage threats and ensure sufficient distribution and abundance of bull trout (Salvelinus confluentus) so that protection under the Endangered Species Act (ESA) is no longer required.

The bull trout was listed as threatened under the ESA in 1999. USFWS previously prepared three separate recovery plans for the species: (1) a 2002 draft plan to address populations within ...

Posted in Court Decisions

On July 14, Glenn-Colusa Irrigation District (GCID) filed a petition for writ of certiorari (pdf) with the U.S. Supreme Court, seeking review of the Ninth Circuit’s decision in Glenn-Colusa Irrigation District v. Natural Resources Defense Council, 749 F.3d 776 (9th Cir. 2014). In an en banc decision, the Ninth Circuit found that a U.S. Bureau of Reclamation (Reclamation) action renewing settlement contracts with senior water rights holders is subject to consultation under section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2). The Ninth Circuit’s ...

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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