• Posts by Stephanie N. Clark
    Associate

    Stephanie Clark is a member of Nossaman’s Environment & Land Use Group.  She advises clients on a variety of land use and environmental matters, including matters dealing with the California Environmental Quality Act, Endangered ...

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 ...

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 ...

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 ...

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 ...

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 ...

Posted in Legal

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 ...

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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 ...

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 ...

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 ...

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 ...

Posted in Court Decisions

On August 1, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in Humane Society of the U.S. v. Zinke, Case No. 15-5041 (Aug. 1, 2017), affirming a district court decision that keeps the Western Great Lakes Distinct Population Segment (DPS) of Grey Wolves on the List of Endangered and Threatened Species.  Plaintiffs in the case allege that the Secretary of the Interior and U.S. Fish and Wildlife Service’s (collectively, Service) 2011 Final Rule (Rule) removing the DPS from the list of endangered and threatened species failed to consider two key ...

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On May 8, 2017, the U.S. District Court for the Northern District of California granted, in part, a motion for summary judgment brought by plaintiffs in a suit challenging the U.S. Environmental Protection Agency’s (EPA) approval of the registration and use of 73 pesticides containing the active ingredients clothianidin and thiamethoxam.  See Ellis v. Housenger, Case No. 13-cv-01266-MMC, 2017 U.S. Dist. LEXIS 70107 (N.D. Cal. May 8, 2017).  Plaintiffs, a collection of individuals and a number of environmental and advocacy groups, alleged that EPA’s decision to allow ...

On February 27, 2017, the California Supreme Court reversed a Court of Appeal decision dismissing a petition for writ of mandate regarding the California Fish and Game Commission’s (Commission) rejection of a petition to delist the population of coho salmon (Oncorhynchus kisutch) south of San Francisco under the California Endangered Species Act (CESA).  Central Coast Forest Assoc. v. Fish and Game Comm’n, Case No. S208181, 2017 Cal. LEXIS 1540 (Cal. Feb. 27, 2017).  The California Supreme Court held that the Court of Appeal erred by failing to consider the merits of the ...

On December 15, 2016, the U.S. Fish and Wildlife Service (Service) published a proposed rule to remove the black-capped vireo (Vireo atricapilla) from the list of Endangered and Threatened Species. The Service has concluded that listing is no longer warranted due to the species’ recovery.

The vireo is a small migratory songbird that breeds and nests in south-central Oklahoma, Texas, and the northern states of Mexico, and winters in Mexico’s western coastal states. The species was initially listed as endangered in October 1987 due to various threats, including nest parasitism ...

On October 5, 2016, the U.S. Fish and Wildlife Service (Service) listed a beetle species as endangered, a fish species as threatened, and designated critical habitat for the fish species pursuant to the Endangered Species Act (ESA).

The Service listed the Miami tiger beetle (Cicindelidia floridana), which occurs in Miami-Dade County, Florida, as endangered under the ESA.  According to the Service, the decline in the species is due to the impact of habitat loss, degradation, and fragmentation, the inadequacy of existing regulatory protections, and the beetle’s relatively ...

On August 15, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision granting summary judgment to the Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service (USFWS) on the issue of whether an incidental take statement is required for plant species.  In Center for Biological Diversity v. Bureau of Land Management, No. 14-15836, 2016 U.S. App. LEXIS 14949, the Center for Biological Diversity (CBD) challenged BLM’s adoption of a Recreational Area Management Plan (Plan) for off-road vehicles in the Imperial Sand Dunes Special Recreation ...

In a year that has already seen its fair share of attempts to reform the Endangered Species Act (ESA), another proposal has made its way into the House of Representatives.  Representatives Don Young (R-Alaska) and Debbie Dingell (D-Michigan) introduced the Recovering America’s Wildlife Act (H.R. 5650) on July 7, 2016.  The bill is based on a plan unveiled by the Blue Ribbon Panel on Sustaining America's Diverse Fish and Wildlife Resources four months ago.

H.R. 5650 would direct approximately $1.3 billion each year from federal energy and mineral development revenues into state-led ...

On June 2, 2016, the U.S. Fish and Wildlife Service (Service) issued a 90-day finding that listing populations of the Northwestern moose (Alces alces andersoni) under the Endangered Species Act (ESA) may be warranted.  The Service’s 90-day finding is in response to a petition filed in July 2015 by the Center for Biological Diversity and Honor the Earth, which asked that the moose be listed as a threatened or endangered distinct population segment (DPS).

The U.S. population of Northwestern moose inhabits the upper peninsula of Michigan, Minnesota, North Dakota and Wisconsin.  In ...

On April 21, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, Service) announced revisions to their proposed modifications  to  the Endangered Species Act (ESA) petition process. 81 Fed. Reg. 23,448 (Apr. 21, 2016) (pdf).  In May 2015, the Service announced proposed changes to the petition process for listing a species or seeking to change the listing status of a species under the ESA. 80 Fed. Reg. 29,286 (May 21, 2015) (pdf).  The Service’s proposed rule originally required petitions to list species to address only one species, contain ...

Posted in Delisting

On March 11, 2016, the U.S. Fish and Wildlife Service (Service) released a final delisting rule, a proposed delisting rule, and a notice of a draft recovery plan.  Each of these is discussed in the order in which they appear in the Federal Register.

First, the Service issued a final rule removing the Louisiana black bear (Ursus americanus luteolus), affectionately referred to as the Teddy bear, from the list of endangered and threatened species.  Based on the black bear’s recovery, the rule also removes the American black bear (Ursus americanus), which was previously listed due to its ...

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On February 10, 2016, lawmakers on the House Natural Resources Subcommittee on Water, Power, and Oceans are scheduled to discuss several wildlife laws, including the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Migratory Bird Treaty Act (MBTA).  The Oversight Hearing is entitled The Costly Impacts of Predation and Conflicting Federal Statutes on Native and Endangered Species.  Anticipated topics for discussion include addressing the fact that conflicts between federal statutes often prevent agencies and federal officials from effectively reducing ...

In a notice published on January 15, 2016, the U.S. Fish and Wildlife Service (Service) announced a draft methodology for prioritizing species status reviews and 12-month findings on petitions for listing species under the Endangered Species Act (ESA).  81 Fed. Reg. 2,229 (Jan. 15, 2016).  The Service currently has over 500 unresolved species status reviews and associated 12-month findings on petitions for listing, and intends to use the changes to its methods to set priorities on how and when those unresolved petitions will be addressed.  The Service’s draft methodology will not ...

On November 30, 2015, the California Supreme Court issued its much-anticipated decision in Center for Biological Diversity v. California Department of Fish & Wildlife, Case No. S217763 (Nov. 30, 2015).  The decision comes at the conclusion of a nearly five-year legal battle over the California Department of Fish and Wildlife’s (CDFW) approval of an environmental impact report (EIR) for the Newhall Ranch development project (Newhall Ranch) in Los Angeles County.  Newhall Ranch was approved as a mixed-use development on nearly 12,000 acres of land along the Santa Clarita River.  ...

Posted in Conservation

On October 16, 2015, the California Department of Fish and Wildlife (CDFW) and the Bureau of Land Management (BLM) announced the signing of a conservation agreement intended to provide greater protections and more flexibility in the management of impacts to sensitive species and their habitats.  The conservation agreement, called the Durability Agreement, will allow CDFW to use BLM lands for various conservation actions, and occasionally for project-level mitigation to meet California state standards.  The Durability Agreement, developed during coordination between CDFW ...

On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus).  The murrelet is listed as a threatened species under the Endangered Species Act (ESA).  The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011.  61 Fed. Reg. 26,256; 76 Fed. Reg. 61,599.

The Service is reconsidering its prior critical habitat determination pursuant to the U.S. District Court for the District ...

Consistent with Governor Brown's Drought Proclamation and Executive Orders, the U.S. Bureau of Reclamation (USBR) and the California Department of Water Resources (DWR) sought and obtained a temporary modification of certain water quality objectives from the California State Water Resources Control Board (State Board) in order to allow for increased exports of water from the Central Valley Project and State Water Project in the Sacramento-San Joaquin Delta (Delta).  On June 3, 2015, environmental groups, including the California Sportfishing Protection Alliance ...

In a decision issued April 28, 2015, a U.S. District Court for the District of Columbia dismissed an action challenging the U.S. Forest Service's (Service) 2012 National Forest Planning Rule (Planning Rule).  The Service is responsible for managing all federally owned forest and range lands, as well as the species that reside on those lands, pursuant to a three-tiered system established by the Organic Administration Act (OAA), the Multiple-Use Sustained-Yield Act (MUSYA), and the National Forest Management Act (NFMA).  This three-tier system consists of: (1) a ...

After a relatively quiet start to the year, the National Marine Fisheries Service (NMFS) and U.S. Fish & Wildlife Service (FWS)  have issued findings and rules regarding the proposed listings of four separate species under the Endangered Species Act (ESA) over the last two days.  NMFS issued a 90-day finding on a petition to list the Gulf of Mexico population of Bryde's whale (Balaenoptera edeni) on April 6, 2015.  FWS issued a 12-month finding on a petition to list the Humboldt marten (Martes caurina humboldtensis) and proposed to list two species of crayfish - the Big Sandy crayfish ...

On March 27, 2015, the National Marine Fisheries Service (NMFS) accepted two petitions asking NMFS to list the Porbeagle shark (Lamna nasus) as threatened or endangered under the Endangered Species Act either throughout the entirety of its global range, or as distinct population segments (DPS) occurring in the Northwest Atlantic, the Northeast Atlantic, and the Mediterranean.  (80 Fed. Reg. 16,356 [pdf].)  The petitions, filed separately by Wild Earth Guardians and the Humane Society of the United States, were originally rejected as not warranted by NMFS in July 2010.  Both ...

On March 3, 2015, the National Marine Fisheries Service (NMFS) issued two Federal Register notices – a 90-day finding on a petition (pdf) to list the Common thresher shark (Alopias vulpinus) as either threatened or endangered, and a proposed rule to list  (pdf) the Tanzanian distinct population segment (DPS) of the African Coelacanth (Latimeria chalumnae) as a threatened species.

Common thresher shark

On August 26, 2014, Friends of Animals petitioned NMFS to list the Common thresher shark as endangered or threatened under the Endangered Species Act (ESA), or, in the ...

On January 28, 2015, Congressman Bill Flores (R-TX) introduced House Bill H.R. 585 (pdf), which seeks to amend the Endangered Species Act of 1973 (ESA) to establish a new procedure for approval of certain stipulated consent decrees between the federal government and third parties.  Specifically, in cases brought under the ESA's citizen suit provision (16 U.S.C. § 1540(g)), H.R. 585 would require that parties interested in intervening in a lawsuit would have 30 days to intervene, during which time the parties in the case would not be able to file a motion for a consent decree or to ...

On February 2, 2015 the National Marine Fisheries Service (Service) announced its plan to extend the period for public comments on its December 3, 2014 proposed designation of critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida), reported on this blog.  (80 FR 5498 [pdf].)  The Service’s proposed rule would designate millions of acres in the Bering, Beaufort, and Chukchi seas as critical habitat for the threatened Arctic Ringed Seal.  The public comment period will now remain open until March 31, 2015.  Additionally, the Service announced that a fifth ...

Coming in just under the wire for the New Year, the U.S. Fish & Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) published new rules today, making December a very busy month for Endangered Species Act (ESA) listing decisions. Below are the latest items from FWS and NMFS to be published in 2014.

December 31, 2014 - FWS issued a 90-day finding on a petition to list the Monarch Butterfly (Danaus plexippus plexippus) as a threatened species under the ESA.  FWS found that the information and sources cited in the petition present substantial commercial or scientific ...

On December 9, 2014, the National Marine Fisheries Service (NMFS) and Secretary of Commerce published a revised proposed rule designating critical habitat for the Arctic Ringed Seal.  The previous proposed rule was published here (and reported on this blog here) on December 3rd.  Citing a clerical error, NMFS withdrew the December 3rd rule, claiming it "contained numerous errors."  The rule published today is intended to replace the prior critical habitat designation, and the comment period will reopen effective today and will remain open until March 9, 2015 ...

On December 5, 2014 the U.S. Fish & Wildlife Service (USFWS) released its Fiscal Year 2014 Threatened and Endangered Species Candidate list.  Under the Endangered Species Act (ESA), when the USFWS either receives a petition from a third party to list a species as threatened or endangered, or when the USFWS decides of its own accord to evaluate a species for listing, it is required to issue a 90 day finding on the potential listing, and then a 12-month finding, followed by a determination on the species' status.  Forty species received final listing decisions this year.  USFWS may delay a ...

On December 3, 2014, the National Marine Fisheries Service (NMFS) published its proposed rule designating critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida).  (79 Fed. Reg. 71,714).  The proposed designation, if finalized, would mark one of the largest critical habitat designations in the Bering, Beaufort, and Chukchi seas, consisting of millions of acres.  The seal, which was designated as a threatened species under the Endangered Species Act (ESA) in December 2012, is the smallest of the northern seals with an average lifespan of 15 to 28 years. (77 ...

On November 4, 2014, the U.S. District Court for the District of Arizona issued an opinion in Ctr. for Biological Diversity v. Jewell,2014 U.S. Dist. LEXIS 157436(D. Ariz.Nov. 4, 2014) finding that the Fish and Wildlife Service (FWS) did not abuse its discretion by finding that the Sonoran Desert population of bald eagles is not a distinct population segment. The Bald eagle was originally listed as an endangered species under the precursor to the Endangered Species Act (ESA) in 1967, after FWS found that less than 500 breeding pairs remained in 1963. Under ESA protections, the bald ...

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On October 23rd the Federal District Court for the Western District of Washington upheld the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program’s (NFIP) compliance with a 2008 reasonable and prudent alternative (RPA) stemming from previous litigation.  The National Wildlife Federation initially challenged the program for its impacts on endangered Pacific Northwest Chinook salmon, Puget Sound steelhead, Hood Canal chum salmon, and Southern Resident killer whales in National Wildlife Federation v. Federal Emergency Management Agency, 345 ...

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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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