Endangered Species Law & Policy

We previously reported the Fish and Wildlife Service's intention to delist the gray wolf (Canis lupus) in the State of Wyoming.  Today the Service announced "that the Wyoming population of gray wolves is recovered and no longer warrants protection under the Endangered Species Act."  A host of news outlets reported the announcement, including the New York Times (Aug. 31, 2012, by Feilicity Barringer).  Delisting of the gray wolf is controversial, but the species has been delisted in numerous parts of the upper mid-west and western United States.

The United States Court of Appeals for the Ninth Circuit has granted (pdf) a motion by appellees to dismiss an appeal pursued by the Natural Resources Defense Council and other organizations from an interim order enjoining one component of a reasonable and prudent alternative imposed by the Fish and Wildlife Service on operations of the Central Valley Project and State Water Project.  The order, which we reported on here, enjoined implementation of a water management action, referred to as the Fall X2 Action, which requires a combination of reservoir releases upstream from the ...

The California Department of Fish and Game (DFG) recently completed its initial evaluation (pdf) of a petition to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA).  The Center for Biological Diversity, Big Wildlife, the Environmental Protection Information Center, and the Klamath-Siskiyou Wildlands Center (collectively, Petitioners) submitted a petition for the listing to DFG on March 5, 2012.  DFG recommended the Fish and Game Commission (Commission) accept the petition for further consideration, finding that there is ...

The  Associated Press is reporting that the federal government intends to issue a final rule delisting the gray wolf (Canis lupus) in Wyoming on August 31, 2012 (The Missoulian, Aug 14, 2012, by Ben Neary).  The Fish and Wildlife Service proposed (pdf) removal of the gray wolf in Wyoming from the list of endangered and threatened species on October 5, 2011, and reopened the comment period (pdf) on that proposal on May 1, 2012.

On August 13, 2012, the United States Court of Appeals for the Ninth Circuit laid to rest litigation that threatened to profoundly affect water and power supplies for 25 million people throughout the arid Southwest.

In Grand Canyon Trust v. U.S. Bureau of Reclamation (pdf), the Ninth Circuit held that the U.S. Bureau of Reclamation (Reclamation) is not required to consult with the U.S. Fish and Wildlife Service (Service) under section 7 of the Endangered Species Act (ESA) every year when it prepares an annual operating plan for the Glen Canyon Dam.

The court held ...

In a recent decision (pdf), the United States District Court for the District of Idaho remanded a determination (pdf) by the U.S. Fish and Wildlife Service to list slickspot peppergrass (Lepidium papilliferum), a small, flowering plant in the mustard family, as threatened under the Endangered Species Act.  The controversy  over the listing of the species has spanned more than a decade, resulting in numerous Service determinations and court orders.

Slickspot peppergrass is only found in portions of Idaho.  Idaho's Governor, Butch Otter, and others brought the case challenging the ...

An article was published today in the E&E Reporter entitled "Petitions for new species protection wobble balance in FWS settlement with environmentalists."  The article, authored by Allison Winter, provides an interesting lens through which to view the ongoing struggle between the federal wildlife agencies and environmental groups.  In 2011, the U.S. Fish and Wildlife Service (Service), Wild Earth Guardians, and the Center for Biological Diversity (CBD) entered into a settlement agreement, which was subsequently approved by a federal court, obligating ...

The U.S. Fish and Wildlife Service (Service) recently announced a proposal to protect 40 different species native to Hawaii under the Endangered Species Act (ESA).  The Federal Register notice of the announcement can be found here (pdf).  The proposal encompasses 37 plant species, including herbs, shrubs, trees, and ferns, and three species of tree snails.  The species are native to the Hawaiian Islands of Moloka'i, Lana'i, Kaho'olawe, and Maui.  They are found in 11 different ecosystem types.

The Service's announcement also included critical habitat designation for 39 of the ...

Today Governor Brown and Secretary of the Interior Salazar announced plans to construct two tunnels to transport water under the Sacramento-San Joaquin Delta in an effort to guarantee a stable water supply for Californians and contribute to the protection and recovery of the Delta ecosystem and at-risk species.  In a press release that accompanied the announcement, the federal and state officials stated "the parties expect to issue a draft Bay Delta Conservation Plan and corresponding Environmental Impact Report/Environmental Impact Statement for public review this fall."

The United States Court of Appeals for the Ninth Circuit issued a 2-1 decision (pdf) affirming a lower court holding that plaintiff environmental groups lacked standing to challenge the renewal of certain water contracts by the Bureau of Reclamation and that other contract renewals by the Bureau were not subject to consultation under section 7(a)(2) of the Endangered Species Act because the renewals constituted non-discretionary actions outside the scope of the consultation requirement.

At issue in the case was the renewal of water contracts between the Bureau and two sets of ...

Effective August 13, 2012, the Chupadera springsnail's 28-year candidacy for listing will be over.  In a final rule (pdf) issued July 12, 2012, the U.S. Fish and Wildlife Service listed the Chupadera springsnail (Pyrgulopsis chupaderae)  as endangered, and designated critical habitat for the species in the only two units where it is known to occur in Socorro County, New Mexico.

The Chupadera springsnail is a tiny freshwater snail endemic ot Willow Spring and an unnamed spring nearby located on private land near the southeast end of the Chupadera Mountains.  Because the ...

In an article published in July 2012, in the Journal of Environmental Economics and Management, Christian Langpap and Joe Kerkvliet of Oregon State University assess the effectiveness of habitat conservation plans.  The abstract reads:

Habitat conservation plans (HCPs) have become a key instrument for implementation of the Endangered Species Act (ESA) on private land. However, there is no systematic analysis of their effectiveness in promoting endangered species recovery. This paper is the first to provide a comprehensive analysis of the impact of HCPs on species recovery ...

According to Ryan McCarthy with KeysNet (June 27, 2012), the County Commission in Monroe County, Florida has agreed to take responsibility for reviewing permits for new development within the county to ascertain whether such development is likely to affect species listed as threatened or endangered under the federal Endangered Species Act.  The County took this action to avoid suspension of the National Flood Insurance Program (NFIP) there by the Federal Emergency Management Agency (FEMA).  Monroe County was the locus of the first lawsuit under the Endangered Species Act (ESA ...

On June 19, 2012, the U.S. Fish and Wildlife Service announced its final action designating 24,527 acres as critical habitat for the Pacific coast population of western snowy plover (Charadrius alexandrinus nivosus).  The designated critical habitat spans coastal areas in Washington, Oregon, and California to the Mexican border, typically characterized by sparsely vegetated, sandy beaches.  The Service identified several activities that may require special management within critical habitat areas, including, water diversions, resource extraction, and dune ...

The Bay Delta Conservation Plan (BDCP) is a daunting conservation planning exercise.  The affected ecosystems have been irreversibly altered; a number of the covered species are at risk of extinction over the next century; despite the investment of billions of dollars, the monitoring scheme in place is inadequate to provide scientists with data necessary to generate robust analyses needed to make informed resource management decisions; and the entire exercise is a political hot potato.

The State committed to release a public draft of the BDCP in June 2012, but in a letter to the ...

On June 12, 2012, the United States District Court for the District of Columbia issued a decision (pdf) upholding the listing of the shovelnose sturgeon (Scaphyrhynchus platorynchus) as a threatened species, although it is by all accounts thriving, and upheld a partial ban on commercial fishing of the shovelnose sturgeon, despite the lack of a similar ban on recreational fishing.  The Court upheld the foregoing actions by the U.S. Fish and Wildlife Service (Service) because the shovelnose sturgeon is almost identical in appearance to the pallid sturgeon (Scaphirhynchus ...

The Fish and Wildlife Service made a decision (pdf) recently not to list the dunes sagebrush lizard (Sceloporus arenicolus) as threatened or endangered under the Endangered Species Act.  The distribution of the small, light brown lizard is limited to western Texas and southeastern New Mexico. The status of the species has been uncertain for a number of years; in 2004 the Service determined that listing the species was warranted but precluded by higher priority actions and in 2010 the Service proposed to list the species as endangered.  The potential listing of the species drew strong ...

On June 4, the U.S. Fish and Wildlife Service (Service) published a 90-day finding (pdf) that substantial scientific or commercial information indicates that delisting the Inyo California towhee (Pipilo crissalis eremophilus) and reclassifying from endangered to threatened the arroyo toad (Anaxyrus californicus), Indian Knob mountainbalm (Eriodictyon altissimum), Lane Mountain milk-vetch (Astragalus jagerianus), Modoc sucker (Catostomus microps), and Santa Cruz cypress (Cupressus abramsiana) under the Endangered Species Act (ESA) may be warranted.  The Service will now conduct status reviews for these six species which result in a 12-month finding for each species determining whether the action is, in fact, warranted.

The Pacific Legal Foundation petitioned the Service requesting these actions on December 19, 2011.  The Foundation's petition was based on information contained in the most recent 5-year reviews for these six species, which were completed in 2008 and 2009.

Recently, the United States District Court for the District of Oregon issued a decision (pdf) denying the motion of plaintiff environmental groups for a preliminary injunction to halt lethal removal of California sea lions (Zalophus californianus) from the Columbia River to reduce predation pressure on salmonids as they migrate past the Bonneville Dam.  The decision is the latest chapter in a long-running dispute over efforts to protect salmon runs in the Columbia River system.

The States of Oregon, Washington, and Idaho applied for and obtained authorization from the National ...

On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.

On May 23, 2012, the U.S. Fish and Wildlife Service removed the Morelet's crocodile (Crocodylus moreletii) from the list of federal endangered and threatened species.  The species was first listed as endangered in June, 1970.  The listing was due primarily to over-harvesting for commercial purposes.  Shortly thereafter, restrictions on the commercial harvest and trade of the species were instituted.  In 2005, after a survey had established the widespread distribution and relative abundance of the species, the Government of Mexico filed a petition seeking to ...

In Conservation Congress v. Finley, 2012 U.S. Dist. LEXIS 61634 (May 2, 2012), plaintiffs challenge agency decisions that authorize the Beaverslide Timber Sale and Fuel Treatment Project located in the Six Rivers National Forest in northern California on the grounds the project violates the Endangered Species Act (ESA), National Environmental Policy Act, and National Forest Management Act.  Among other things, plaintiffs allege that the Forest Service unlawfully failed to reinitiate consultation with the Fish and Wildlife Service under section 7(a)(2) of the ESA ...

Large-scale habitat conservation plans often are under development for many years then mired in the regulatory process for many more.  The Bay Delta Conservation Plan (BDCP) is not exceptional because it has hit a number of bumps in the road.  But it is exceptional because the plan development and regulatory processes are transparent and being scrutinized by a multitude of interests at every step, including some that will challenge the BDCP in court irrespective of the merits of the Plan for both society and the at-risk species it is designed to protect.  For the past several months, the ...

In a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim.  Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012).  Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead ...

The U.S. Fish and Wildlife Service (Service) recently announced (pdf) its decision that the Sonoran Desert Area population of bald eagles (Haliaeetus leucocephalus) does not warrant protection under the Endangered Species Act (ESA).  The Service's conclusion is the result of a revised 12-month finding on a petition to list the population as threatened or endangered under the ESA.  The Service concluded that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS), and that listing the population is not warranted at this time.

The Service originally found that the Sonoran Desert Area population of bald eagles was not a listable entity under the ESA on February 25, 2010.  The Center for Biological Diversity and Maricopa Audubon Society challenged that decision in October 2010.  On November 30, 2011, the U.S. District Court for the District of Arizona ordered the Service to draft a new 12-month finding.

The United States District Court for the Northern District of California issued an order (pdf) denying cross motions for summary judgment in a case brought by plaintiffs suing the City and County of San Francisco over the management of Sharp Park Golf Course, which San Francisco owns but which is located in the City of Pacifica in San Mateo County, California.  At issue in the case is whether San Francisco’s management of the golf course violates the take prohibition of the Endangered Species Act (ESA).  Previously, we posted a blog describing plaintiffs' unsuccessful attempt to ...

The United States District Court for the Western District of Washington issued a decision (pdf) denying a request by the National Wildlife Federation (NWF) to enjoin the Federal Emergency Management Agency (FEMA) from providing flood insurance, either directly or through third-party entities, for any new development in certain jurisdictions in the Puget Sound area until the case is resolved on the merits.  We blogged about the case previously, here.  NWF filed the case against FEMA for failure to fully implement the reasonable and prudent alternative (RPA) that ...

On April 17, 2012, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would revise the critical habitat for two endangered plant species located in Riverside County, California: the Munz's onion (Allium munzii) and the San Jacinto Valley crownscale (Atriplex coronata var. natatior).  Under the proposed rule, the Service would designate an additional 8,909 acres of critical habitat for the two species.  Approximately 889 additional acres would be designated for the Munz's onion, and 8,020 acres would be designated for the San Jacinto Valley crownscale.  

The National Marine Fisheries Service (NMFS) recently concluded that listing of the Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath and Trinity Rivers Basin as threatened or endangered is not warranted.  The agency made the 12-month finding following receipt of a petition to list the species in January 2011 from the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company.

In its 12-month finding, NMFS included both spring-run and fall-run Chinook salmon populations in the Klamath River Basin ...

In a recently issued draft biological opinion (PDF) , the National Marine Fisheries Service (Service) has concluded that EPA's registration of products containing the herbicides oryzalin, pendimethalin, and tricluralin is likely to jeopardize the survival of approximately half of the Pacific salmonid populations listed under the Endangered Species Act (ESA).

The draft biological opinion is the latest milestone in a series of controversial ESA section 7 consultations between the Environmental Protection Agency (EPA) and the Service regarding EPA's ...

The National Research Council's Committee on Sustainable Water and Environmental Management in the California Bay-Delta issued its final report (pdf) entitled Sustainable Water and Environmental Management in the California Bay-Delta.  The report is 220 pages and includes five chapters as well as a number of appendix.  The National Research Council established the Committee at the request of Congress and the Departments of the Interior and Commerce.  The task statement for this final report was as follows:

• Identify the factors that may be contributing to the decline of ...

The U.S. Fish & Wildlife Service (Service) has determined that protection under the Endangered Species Act (ESA) for the San Francisco Bay-Delta (Bay-Delta) population of longfin smelt is warranted but precluded. The Service also determined that listing the longfin smelt rangewide is not warranted at this time.

The Service’s decision is in response to a lawsuit brought by environmental groups challenging the Service’s 2009 determination (pdf) that the Bay-Delta population of longfin smelt is not distinct from other populations in the species’ geographic range. In a ...

In a case with a complicated procedural history, the United States District Court for the District of Oregon recently held (pdf) that a claim for failure to consult under section 7 of the Endangered Species Act (ESA) arises under the citizen suit provision of that Act rather than under the Administrative Procedure Act (APA).  In doing so, the Court followed the Ninth Circuit's reasoning in Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (pdf) and rejected a contrary interpretation included in proposed findings and recommendations (pdf) of the magistrate.  ...

On Tuesday, March 27, the United States District Court for the Western District of Washington will hear argument in a suit filed by National Wildlife Federation against the Federal Emergency Management Agency (FEMA) for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service's (NMFS) biological opinion regarding the impacts of the FEMA's National Flood Insurance Program (NFIP) on listed species in the Puget Sound.

In 2004, the United States District Court for the Western District of Washington ruled

A judge in the District of Washington D.C. recently denied a request by the Humane Society of the United States to halt the killing of sea lions that prey on endangered spring run salmon and steelhead on the Columbia River.  On March 15, 2012, the National Marine Fisheries Service (NMFS) reauthorized the removal of California sea lions that congregate at the Bonneville dam and feed on the listed species as they pass the dam.  NMFS's authorization would have allowed the removal of up to 92 sea lions annually through 2016.  The Humane Society challenged NMFS's decision, claiming that NMFS ...

The U.S. Court of Appeals for the Ninth Circuit has upheld a law that orders the Secretary of the Interior to reissue a rule that delists a distinct population of gray wolves in the northern Rocky Mountains without regard to the Endangered Species Act ("ESA") and without judicial review.  Alliance for the Wild Rockies v. Salazar, No. 11-36552 (9th Cir. March 14, 2012).  As previously reported, in 2009 the Fish and Wildlife Service ("Service") issued what is known as the "2009 Rule," which designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA ...

The Pacific Legal Foundation has filed a lawsuit (pdf) in order to force the Fish and Wildlife Service to make a determination whether to delist the valley elderberry longhorn beetle (Desmocerus californicus dimorphus), a species with a distribution from southern Shasta County to Fresno County in California's Central Valley.  The lawsuit was reported by a number of news outlets including the Sacramento Bee (March 15, 2012, by Matt Weiser).

The valley elderberry longhorn beetle was listed by the Service as threatened under the Endangered Species Act (ESA) in 1980.  At that time, the ...

On March 8, 2012, the Departments of Agriculture and the Interior announced a new program for conserving wildlife habitat on private lands.  Under the new program, Federal, state, and local wildlife experts will jointly identify at-risk species that would benefit from habitat restoration on private lands and, using the best available science, prioritize restoration actions on a regional scale.  These efforts will initially be limited to seven species: the greater sage-grouse (Centrocercus urophasianus), New England cottontail (Sylvilagus transitionalis), bog turtle ...

On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered ...

On February 29, 2012, the California Natural Resources Agency released approximately 10,000 pages of "preliminary" draft planning documents relating to the Bay Delta Conservation Plan (BDCP) for public review and comment.  The documents fall into two categories: Draft BDCP documents, and Draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS) documents (see the list below for details).

The BDCP is being developed in compliance with the Federal Endangered Species Act (ESA) and the California Natural Communities Conservation Planning Act (NCCPA ...

As Dean Kuipers reported in the Los Angeles Times, on February 27, four environmental groups petitioned the California Fish and Game Commission to list the gray wolf (Canis lupis) as endangered under the California Endangered Species Act.  The petition is available here (pdf).  As I previously reported, a lone gray wolf briefly crossed the border from Oregon to California in December 2011.  The last documented gray wolf in the State prior to that time was seen in 1924.

The status of the gray wolf under the federal Endangered Species Act is described here (pdf).

In two recent actions, President Obama and the Fish and Wildlife Service have signaled what may be an important shift in the Obama Administration’s position on the designation of critical habitat for endangered and threatened species. On February 28, 2012, the President issued a memorandum (pdf) directing the Interior Department to propose modifying the Department’s approach to the evaluation of the economic impacts of critical habitat. The President directed the Interior Department to propose revisions to its regulations to allow the simultaneous consideration of ...

In a final rule (pdf) published today, the Fish and Wildlife Service ("Service") uplisted the spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) from threatened to endangered under the Endangered Species Act.  The Service also revised the designation of critical habitat for both species.  In total, approximately 630 miles are designated as critical habitat for spikedace and 610 miles are designated as critical habitat for loach minnow.  The critical habitat designations are in Arizona and New Mexico.  The Service excluded portions of the upper San Pedro River in Arizona as ...

Two stories covered in recent news highlight the challenges associated with integrating scientific information into public policy, including in the arena of agency decision-making respecting threatened and endangered species.  One, available here (The Observer, Feb. 18, 2012, by Robin McKie), covered the annual meeting of the American Association for the Advancement of Science (AAAS).  At that meeting, AAAS President and accomplished biologist Nina Fedoroff expressed profound dismay about what she perceives as a growing anti-science movement.  As was reported in The Observer, "[certain] institutions, acting as covers for major energy corporations, are responsible for the onslaught that has deeply lowered the reputation of science in many people's minds in America. This has come in the form of personal attacks on the reputations of scientists and television adverts that undermine environment laws."  The archetype example of the anti-science movement in action, according to sources cited in the article, is the debate over the scientific basis for the theory of anthropogenically generated climate change.

A second story, available here (Los Angeles Times, Feb. 22, 2012, by Neela Banerjee), covered the admission by Dr. Peter Gleick, President of The Pacific Institute, that he lied to obtain documents regarding climate change from The Heartland Institute.  As the Los Angeles Times reported, "[a] noted California scientist and environmental activist has admitted that he assumed a false identity to obtain and distribute internal documents from a libertarian group that questions climate change."  Dr. Gleick apologized for his actions explaining he was frustrated by attacks upon climate change science and scientists.  It is unclear how his actions may affect Dr. Gleick's professional life though it appears likely to have adverse consequences.  Fox News reports that "[t]he Task Force on Scientific Ethics for the well-respected American Geophysical Union has quietly expunged the name of committee chairman Peter H. Gleick from its website."

U.S. District Judge Gladys Kessler of the District of Columbia invalidated regulations designed to streamline the consultation process required by the Endangered Species Act (ESA) in preparing fire management plans. The judge found (pdf) that there was no evidence in the record that the ESA consultation process actually resulted in any delay to any National Fire Plan project.

The regulations were originally issued in 2003 (pdf) by six federal agencies, including the Bureau of Land Management, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the Bureau of ...

On February 7, 2012, the California Department of Fish and Game (DFG) issued a 60-day notice of intent to sue to the United States Army Corps of Engineers over its national levee vegetation removal policy.  This notice follows a United States District Court's recent refusal to allow the Department of Fish and Game to intervene in a similar lawsuit brought by several environmental organizations.  That case is entitled Friends of the River, et al. v. U.S. Army Corps of Engineers, Case No. 2:11-cv-01650 (E.D. Cal.).  

The Corps' policy calls for a vegetation ...

As the Department of Fish and Game(DFG)  reported, at its February 2012 meeting the California Fish and Game Commission "moved to list the Sierra Nevada yellow-legged frog (Rana sierrae) as a threatened species and the southern mountain yellow-legged frog (R. muscosa) as an endangered species."  The latter is listed (pdf) as endangered under the federal Endangered Species Act (ESA), and a final rule (pdf) designating critical habitat for the species was promulgated in 2006.  The former is a candidate for listing under the federal ESA.

According to DFG, "Mountain yellow-legged frogs ...

At its February 2012 meeting, the California Fish and Game Commission unanimously rejected a recommendation by the California Department of Fish and Game, National Marine Fisheries Service, and U.S. Fish and Wildlife Service to initiate environmental review of a staff report and proposal (pdf) jointly developed by those agencies to alter the striped bass sport-fishing regulations in order to reduce predation by non-native striped bass on native species that are listed under the federal Endangered Species Act (ESA).  In addition to the three state and federal wildlife ...

The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities.  The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.

The Government's case against each defendant was similar.  Defendants operated oil reserve pits on their respective sites.  Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well."  North Dakota state sets forth requirements for operation and remediation of reserve pits.  Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations.  On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.

As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking ...