Posts in Fish & Wildlife Service.
U.S. Fish and Wildlife Service Establishes Expedited Eagle Permits

On February 12, 2024, the U.S. Fish and Wildlife Service (Service) published a final rule creating new permitting pathways and revising existing regulations for the take of bald eagles (Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos). Bald and golden eagles are protected under the Bald and Golden Eagle Protection Act (BGEPA), which prohibits take of the species except pursuant to federal regulations. The updated rule is the result of a settlement agreement between the Service and the Energy Wildlife and Action Coalition, which prompted the Service to revisit its ...

CBD Lawsuit Challenges Service’s Failure to Prevent Toxic Pesticides from Harming Endangered Species

On February 1, 2024, the Center for Biological Diversity (CBD) filed an amended complaint (Complaint) in the U.S. District Court of Arizona, alleging the U.S. Fish and Wildlife Service (Service) failed to timely analyze the harmful effects of six pesticides on species listed under the Endangered Species Act (ESA) and their habitats. The lawsuit stems from the Service’s failure to issue biological opinions to the Environmental Protection Agency (EPA) in response to that agency’s request for formal ESA section 7 consultation with the Service over the EPA’s 2017 and 2021 ...

Fish and Wildlife Service Increases Civil Penalties for Violations of Federal Wildlife Protection Laws

On February 2, 2024, the U.S. Fish and Wildlife Service (Service) published a final rule increasing civil monetary penalties for violations of several federal wildlife and natural resource protection laws (Final Rule).  The Final Rule updates penalties for violations of the Endangered Species Act, Marine Mammal Protection Act, Bald and Golden Eagle Protection Act, Lacey Act, and other statutes concerning federally protected animal species.

Under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461, as amended by the Inflation Adjustment ...

Resource Optimization and Endangered Species Management

On December 21, 2023, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing integration of resource optimization into endangered species policy to improve conservation outcomes. Resource optimization is the allocation of finite resources in the most efficient manner possible. In the context of wildlife management, it is a structured process to select a management action from among available alternatives intended to result in the most efficient allocation of resources to achieve a specified objective. … 

Unified Agenda Forecasts Proposed and Final Listings and Critical Habitat Designations for Species Found in Eastern States

As previously reported, on December 6, the Biden Administration published the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), outlining the various regulatory and deregulatory actions the Biden Administration plans to take in the near future. Among the Unified Agenda entries are numerous U.S. Fish and Wildlife Service (Service) actions to propose or finalize endangered and threatened species listings and critical habitat designations under the Endangered Species Act (ESA). Below is a sampling of potential species listings and critical ...

Unified Agenda Forecasts Anticipated Timing of ESA Regulations

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months. This most recent iteration of the Unified Agenda is notable in that it represents the slate of actions the Biden Administration hopes to complete in advance of a potential change in administrations … 

Western States Will See Species Listings, Critical Habitat Designations According to Unified Agenda

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which lists the regulatory and deregulatory actions that federal administrative agencies—including the U.S. Fish and Wildlife Service (Service)—plan to take in the coming year. According to the Unified Agenda, the western United States can expect a number of proposed and final rules to list species as threatened or endangered under the Endangered Species Act (ESA) and to designate critical habitat ...

Unified Agenda Foretells Species Listings, Critical Habitat Designations for Texas

On December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which lists the regulatory and deregulatory actions the various federal administrative agencies—including the U.S. Fish and Wildlife Service (Service)—plan to take in the near future. The Office of Information and Regulatory Affairs publishes an updated Unified Agenda twice a year, in the spring and fall. There are numerous entries in the Unified Agenda addressing future action by the Service to list species as threatened or endangered ...

Service Lists Population of North American Wolverine as Threatened with Interim 4(d) Rule

On November 30, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing a distinct population segment (DPS) of the North American wolverine (Gulo gulo luscas) as a threatened species under the Endangered Species Act (ESA). The wolverine is a medium-sized carnivore found in Alaska, Canada and the western-northwestern United States. The current listing is limited to the DPS of wolverine occurring in the contiguous United States. In the Federal Register notice … 

U.S. Fish and Wildlife Service Proposes Listing Oblong Rocksnail, Once Believed Extinct

On October 31, 2023, the U.S. Fish and Wildlife Service (Service) proposed listing the oblong rocksnail (Leptoxis compacta) as an endangered species under the Endangered Species Act (ESA). The freshwater snail exists only in the Cahaba River in central Alabama and subsists on algae growing on the riverbed. The oblong rocksnail was declared extinct in 2000 after several decades without a confirmed specimen observation and multiple river surveys. In 2011, a population was discovered which inhabits a 5.6 river mile stretch of the Cahaba River about 10 miles south of Birmingham ...

On September 30, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the U.S. Fish and Wildlife Service (Service) in a case challenging the agency’s final rule downlisting the American burying beetle (Nicrophorus americanus) to “threatened species” status under the Endangered Species Act (ESA).

In its opinion, the court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle to threatened status despite noting climate change ...

On October 3, 2023, the U.S. Fish and Wildlife Service (Service) published two proposed rules to list three species—the northwestern pond turtle (Actinemys marmorata), the southwestern pond turtle (Actinemys pallida), and the short-tailed snake (Lampropeltis extenuata)—as threatened under the Endangered Species Act (ESA). The proposed listings also include proposed 4(d) rules for each species. However, according to the Federal Register notices, the Service concluded that designating critical habitat for each of the three species is not currently determinable, and ...

On Tuesday, September 26, President Biden vetoed two Republican-sponsored joint resolutions, S.J. Res. 9 and S.J. Res. 24, seeking to undo Endangered Species Act (ESA) protections for the lesser prairie-chicken (LEPC) (Tympanuchus pallidicinctus) and northern long-eared bat (NLEB) (Myotis septentrionalis) that became effective in January 2023.

S.J. Res. 9 would have undone the U.S. Fish and Wildlife Service’s (Service) final rule listing the Northern distinct population segment (DPS) of the LEPC as threatened with a section 4(d) rule and the Southern DPS as endangered ...

On August 29, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing two distinct population segments (DPS)—the North Feather and Central Coast DPSs—of the foothill yellow-legged frog (Rana boylii) (Frog) as threatened (Threatened DPSs) and two additional DPSs of the Frog—the South Sierra and South Coast DPSs—as endangered (Endangered DPSs) under the Endangered Species Act (ESA). In the preamble to the final rule, the Service indicated that designating critical habitat for all four DPSs of the Frog is not determinable at this time due to a lack ...

On August 11, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to delist the Apache trout (Oncorhynchus apache) under the Endangered Species Act (ESA) due to the species’ recovery.  The Apache trout, the state fish of Arizona, is a species of freshwater fish that is found primarily in the mountain region of southeast Arizona.  This species was initially listed as an endangered species under the ESA in 1967.  Then, in 1975, the Service downlisted the species to threatened status.  The ESA defines a threatened species as one that is “likely to become ...

Critical Habitat Proposed for Sacramento Mountains Checkerspot Butterfly

On August 10, 2023, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly (Euphydryas Anicia cloudcrofti) under the Endangered Species Act. The proposed critical habitat designation encompasses 1,636.9 acres of land in the Sacramento Mountains in Otero County, New Mexico, and follows the Service’s January 2023 final rule listing the species as endangered.

As explained in the proposed rule, the Service considered physical and biological features “essential to the ...

Service Proposes to List Two Mussel Species and Designate Critical Habitat in Texas

On July 25, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list two mussel species, the Salina mucket (Potamilus metnecktayi) and Mexican fawnsfoot (Truncilla cognata), as endangered under the Endangered Species Act (ESA). The Service also proposed to designate critical habitat for these species under the ESA. The proposed critical habitat for the Salina mucket would amount to approximately 200 river miles in the Texan counties of Brewester, Terrell, and Val Verde, and the proposed critical habitat for the Mexican fawnsfoot would amount to ...

U.S. Fish and Wildlife Service Lists Cactus Ferruginous Pygmy-Owl as Threatened with a 4(d) Rule

On July 20, 2023, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) (“Owl”) as a threatened subspecies with a 4(d) rule under the Endangered Species Act (ESA). The 4(d) rule prohibits the same activities prohibited for endangered species, but allows exemptions for certain education and outreach activities permitted under a Migratory Bird Treaty Act permit, surveying and monitoring in Arizona under a state scientific activity permit, and habitat restoration and enhancement ...

Services Propose New Regulatory Revisions Under the Endangered Species Act

On June 22, 2023, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services), issued three sets of proposed revisions to their Endangered Species Act (ESA) regulations addressing: (1) interagency consultations under ESA section 7; (2) the procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4; and (3) reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all ...

U.S. Fish and Wildlife Service Issues Revised Mitigation Policies

On May 15, 2023, the U.S. Fish and Wildlife Service (Service) issued two mitigation policies: one titled “Mitigation Policy” and another titled “Endangered Species Act Compensatory Mitigation Policy.” The Mitigation Policy provides a framework to inform Service mitigation procedure and policy, while the Endangered Species Act (ESA) Compensatory Mitigation Policy provides guidance on implementation of the ESA through compensatory mitigation mechanisms. The Service states that both policies are intended as guidelines for Service personnel to follow when ...

Ninth Circuit Rules Service Improperly Designated Occupied, Unoccupied Critical Habitat for Jaguar

On May 17, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. 20-15654), a case in which a mining company challenged the U.S. Fish and Wildlife Service’s (Service) designation of certain areas in southern Arizona as critical habitat for the jaguar (Panthera onca) under the Endangered Species Act (ESA). The Ninth Circuit upheld the district court’s ruling that the Service improperly designated the challenged area as occupied critical habitat. With respect to the ...

U.S. Fish and Wildlife Service Publishes Updated National Listing Workplan

This month, the United States Fish and Wildlife Service (Service) published the latest update to its National Listing Workplan (Workplan). This update to the Workplan is the Service’s latest since March 2022 and projects the anticipated timeline for the agency’s listing-related decisions over the next five years (2023-2027). In general, the Workplan estimates the Service’s publication dates for various findings and publications, including but not limited to 12-month findings, species status reviews, proposed listing determinations and critical habitat ...

U.S. Fish and Wildlife Service Proposes Revised Critical Habitat Designation for Rufa Red Knot

On April 13, 2023, the United States Fish and Wildlife Service (“Service”) published a proposed rule to revise the critical habitat designation for the rufa red knot (Calidris canutus rufa). The red knot is a shorebird that migrates annually between the Canadian Arctic and wintering regions to the south, including the Southeast United States, the Northeast Gulf of Mexico, northern Brazil, and Tierra del Fuego at the southern tip of South America. During both northbound (spring) and southbound (fall) migrations, red knots use key staging and stopover areas to rest and feed.  

The ...

Service Lists Bracted Twistflower as Threatened Species and Designates Critical Habitat

On April 11, 2023, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the bracted twistflower (Streptanthus bracteatus), a wildflower native to Texas, as threatened with a rule issued under section 4(d) of the Endangered Species Act (ESA). The Service also finalized a critical habitat designation for the species spanning approximately 1,596 acres in the Texas counties of Uvalde, Medina, Bexar, and Travis. The critical habitat designation consists of almost entirely public land, with the exception of approximately 63 acres of privately owned land (however ...

Service Declines to List Coyote on Basis of Resemblance to Endangered Mexican Wolf

On April 3, the U.S. Fish and Wildlife Service (Service) rejected a petition filed by a group of environmental organizations under section 4(e) of the Endangered Species Act (ESA) to list the coyote (Canis latrans) as an endangered species due to its similarity of appearance to the endangered Mexican wolf (C. lupus baileyi). Section 4(e) of the ESA gives the Service the ability to list a species on the basis that its “similarity of appearance” to an endangered or threatened species imperils the protected species’ survival and recovery.

In the petition, the environmental ...

Federal Court Allows Center for Biological Diversity to Continue Large ESA Lawsuit Against U.S. Fish and Wildlife Service

Last week, the U.S. District Court for the District of Columbia issued a ruling allowing the Center for Biological Diversity (CBD) to continue pursuing its large Endangered Species Act (ESA) lawsuit against the U.S. Fish and Wildlife Service (Service) and the Department of the Interior.

The underlying lawsuit, filed in 2019, alleges that the Service violated the ESA by failing to timely publish 12-month findings on nearly 200 listing petitions, final listing determinations for six species, and designations of critical habitat for four species.  In response, the Service filed a ...

U.S. Fish and Wildlife Service Again Finds Listing of Joshua Trees Not Warranted

On March 9, the U.S. Fish and Wildlife Service (Service) issued its 12-month finding that listing Joshua trees (Yucca brevifolia and Y. jaegeriana) as endangered or threatened species under the Endangered Species Act (ESA) is not warranted. The 12-month finding was made to comply with a September 20, 2021 court-ordered remand of the Service’s previous “not warranted” finding in August 2019.

In September 2015, WildEarth Guardians submitted a petition to list the Joshua trees as threatened and, if applicable, designate critical habitat for the species. The Service issued ...

Species Status Assessments under the Endangered Species Act

On February 28, 2023, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing Species Status Assessments (SSAs) as a tool to facilitate implementation of the federal Endangered Species Act (ESA). The U.S. Fish and Wildlife Service (Service) describes the SSA framework as “an analytical approach developed . . . to deliver foundational science for informing all [ESA] decisions.” The Service has explained it intends SSAs to provide “focused, repeatable, and rigorous scientific assessment” that results in ...

Service Proposes Listing Two Populations of California Spotted Owl Under ESA

On February 23, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list two distinct population segments (DPSs) of the California spotted owl (Strix occidentalis) as endangered and threatened species under the Endangered Species Act (ESA). The two DPSs are the Coastal-Southern California DPS, which the Service proposes to list as endangered, and the Sierra Nevada DPS, which the Service proposes to list as threatened with a rule issued under section 4(d) of the ESA (4(d) rule). The proposed rule also serves as the Service’s 12-month finding on a petition to list ...

ESA Preempts Oregon Water Rule in U.S. District Court Decision

On February 6, the U.S. District Court for the Northern District of California sided with the Bureau of Reclamation (Reclamation) and plaintiffs Institute for Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations, and the Yurok Tribe, in holding that an order governing Reclamation’s operation of Upper Klamath Lake (UKL) from the Oregon Water Resources Department (OWRD) is preempted by the Endangered Species Act (ESA). The order, issued in the midst of a recent drought to meet the needs of irrigators, mandated Reclamation to “immediately preclude or ...

Service Proposes to Overhaul ESA Permitting Regulations

On February 9, 2023, the U.S. Fish and Wildlife Service (Service) published proposed revisions to its regulations governing incidental take and enhancement of survival permitting under Endangered Species Act (ESA) section 10.

If finalized, the regulations would do away with the distinction between candidate conservation agreements with assurances and safe harbor agreements, clarify that incidental take permits no longer need to have a federally listed species as the “lead” species, codify aspects of the agency’s five-point policy that provide detail on the necessary ...

2023 Inflation Adjustments to Civil Penalties for Violations of Wildlife Protection Laws Announced

This January, the Department of the Interior and the Department of Commerce announced updated civil monetary penalties for violations of federal wildlife and natural resource protection laws including the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), Bald and Golden Eagle Protection Act (BGEPA), Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), Lacey Act, National Marine Sanctuaries Act (NMSA), and others.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires federal agencies to adjust ...

Ninth Circuit Holds Agency’s Decision Not to Modify a Recovery Plan is Not a Final Agency Action

Earlier this month, the U.S. Court of Appeals for the Ninth Circuit issued a ruling holding that the United States Fish and Wildlife Service’s (Service) decision not to modify a recovery plan for the grizzly bear (ursus arctos horrbilis) was not a final agency action subject to review under the Administrative Procedure Act (APA).

In 1975, the Service listed the grizzly bear as a threatened species under the Endangered Species Act (ESA).  At the time of listing, the grizzly bear’s population in the contiguous United States fell to between 700-800 individuals.  Pursuant to its ...

On January 24, 2023, the U.S. Fish and Wildlife Service (Service) proposed to designate approximately 104 river miles as critical habitat for the sickle darter (Percina williamsi) under the Endangered Species Act (ESA). The critical habitat designation would be divided into six areas—Little River, Emory River and Rock Creek, Copper Creek, North Fork Holston River, Middle Fork Holston River, and Sequatchie River—which together span Bledsoe, Blount, Morgan, and Roane Counties in Tennessee, and Scott, Smyth, and Washington Counties in Virginia. Nearly 80 percent of the ...

Service Lists Northern Long-eared Bat as Endangered

On November 30, 2022, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the northern long-eared bat (NLEB) (Myotis septentrionalis) as an endangered species under Section 4 of the Endangered Species Act (ESA), reclassifying it from its former threatened status and rescinding its section 4(d) rule. In determining whether to list the NLEB, the Service looked to factor C of ESA section 4, which requires the Service to make a listing determination if “disease or predation” poses a threat to the species. The Service cited the impacts of white nose syndrome (WNS ...

FERC Approves Surrender License for Lower Klamath Project

On November 17, 2022, the Federal Energy Regulatory Commission (“FERC”) voted unanimously to issue an Order Modifying and Approving Surrender License and Removal of Project Facilities (“Order”) for the Lower Klamath Project (“Project”). The Order allows the dams’ private operator to surrender its operating license and was one of the final hurdles for the largest dam removal project in United States history. The $450 million project involves the removal of four dams along the Klamath River near the border of Northern California and Southern Oregon.

A noteworthy ...

Court Sends Endangered Species Act Regulations Back to the Agencies

On November 16, 2022, the U.S. District Court for the Northern District of California (District Court) remanded three sets of Endangered Species Act (ESA) regulations promulgated in 2019 under the Trump administration back to the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) for reconsideration. The three regulations addressed: how species are listed and delisted and critical habitat designated under ESA section 4; interagency consultation under ESA section 7; and a final rule repealing USFWS’s blanket ESA ...

U.S. Fish and Wildlife Service Proposes Revised Critical Habitat for Fisher DPS

On November 7, 2022, the U.S. Fish and Wildlife Service (Service) proposed to designate approximately 595,495 acres of critical habitat for the Southern Sierra Nevada distinct population segment (DPS) of fisher (Pekania pennanti) under the Endangered Species Act (ESA). The critical habitat designation would span six units in California’s Tuolumne, Mariposa, Madera, Fresno, and Tulare Counties. The majority of the land comprising these units is owned and/or managed by federal, state, or tribal governments.

The fisher is a small, carnivorous mammal native to North American ...

BOEM and NOAA Fisheries Seek Comment on Joint Draft Strategy for North Atlantic Right Whales and Offshore Wind

On Friday, October 21, a Draft North Atlantic Right Whale and Offshore Wind Strategy ("Draft Strategy") was jointly announced by the Bureau of Ocean Energy Management (BOEM) and the National Oceanic & Atmospheric Administration (NOAA)’s National Marine Fisheries Service (NMFS, also known as NOAA Fisheries). The Draft Strategy identifies three categories of actions: (1) Mitigation and Decision-Support Tools; (2) Research and Monitoring; and (3) Collaboration, Communication, and Outreach; and identifies specific priorities ... 

Lesser Prairie-Chicken Back in Court

On October 25, 2022, the Center for Biological Diversity (CBD) sued the U.S. Fish and Wildlife Service (Service) over the agency’s failure to timely finalize a proposed rule to list the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC). CBD seeks an order from the court declaring the Service is in violation of the Endangered Species Act (ESA) by failing to timely list the LEPC and requiring the Service to publish one or more final rules by a date certain.

On June 1, 2021, and in response to a 2016 petition to list the LEPC, the Service proposed to list two distinct population ...

Service Proposes Listing Two California Salamander Species with Critical Habitat Designations

On October 18, 2022, the U.S. Fish and Wildlife Service (Service) announced 12-month findings on a petition to list three California-based salamander species under the Endangered Species Act (ESA): the Kern Plateau salamander (Batrachoseps robustus), the Kern Canyon slender salamander (Batrachoseps simatus), and the relictual slender salamander (Batrachoseps relictus). All three salamander species occur in the southern Sierra Nevada Mountains in California. The Service determined that listing the Kern Canyon slender salamander and the relictual slender salamander is ...

U.S. Fish and Wildlife Service Proposes Listing Two Snakes and Designating Critical Habitat

Today, the U.S. Fish and Wildlife Service (Service) proposed to list two snake species, the Key ring-necked snake (Diadophis punctatus acricus) and the rim rock crowned snake (Tantilla oolitica), as endangered under the Endangered Species Act (ESA). The Service also proposed to designate critical habitat for these nonvenomous snakes, including approximately 2,604 acres in Monroe County and approximately 5,972 acres in Miami-Dade County and Monroe County, Florida for the Key ring-necked snake and rim rock crowned snake, respectively. The proposal comes as a result of a ...

Bureau of Reclamation and Local Water Agency Have Discretion to Release Water from Dam to Avoid Take of Endangered Steelhead Trout

Reversing the district court, a divided panel of the Ninth Circuit held that that the Bureau of Reclamation and a local water agency have discretion to release water from Twitchell Dam on the Santa Maria River on the Central Coast of California to comply with the federal Endangered Species Act. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist. (Ninth Cir. No. 21-55479, Sept. 23, 2022). The court concluded that a 1958 federal law (P.L. 774) authorizing the operation of the dam for purposes other than irrigation, flood control, and water conservation provided ...

Smoother Sailing for Eagles and Industry Ahead?

On September 30, 2022, the U.S. Fish and Wildlife Service (Service) published a proposed rule to amend its eagle permit regulations (Proposed Rule) administered in accordance with the Bald and Golden Eagle Protection Act (BGEPA). The Proposed Rule seeks to improve administration of the eagle permit program by establishing a general permit pathway for eligible wind energy and power line applicants for incidental take of golden eagles and bald eagles. Eligibility criteria proposed by the Service for participation in the general permit program include factors such as eagle ...

9th Circuit Puts ESA Rules Vacatur on Hold

On September 21, 2022, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) stayed a July 5, 2022 order of the U.S. District Court for the Northern District of California (District Court) vacating several Endangered Species Act (ESA) regulations promulgated by the Trump Administration in 2019 (2019 Rules). In a brief order, the Ninth Circuit indicated the District Court “clearly” erred in vacating the 2019 Rules without first ruling on their underlying legal validity. As a result of the decision of the Ninth Circuit, the District Court’s vacatur of the 2019 Rules is ...

More Bat News, Service Proposes to List Tricolored Bat as Endangered

On September 14, 2022, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list the tricolored bat (Perimyotis subflavus) (TRBA) as an endangered species under the Endangered Species Act (ESA). The TRBA is known to occur in all or portions of 39 states across the northeast, as far south as southern Texas and Florida and as far west as Wyoming. Similar to the proposed rule to list the northern long-eared bat as endangered published earlier this year, the proposed rule cites white nose syndrome as the primary threat to the TRBA, but notes other factors influence the ...

U.S. Fish and Wildlife Service Agrees to Make Listing Decision on Dunes Sagebrush Lizard

On August 25, 2022, the U.S. Fish and Wildlife Service (Service) filed a stipulated settlement agreement (Agreement) in a case challenging the agency’s failure to timely make a 12-month finding on a petition to list the dunes sagebrush lizard (Scleroperus arenicolus) (Petition). Under the Agreement, the Service will submit a 12-month finding on the Petition to the Federal Register no later than June 29, 2023. The 12-month finding will determine whether listing the species is warranted (and will simultaneously issue a proposed rule to list the species), whether listing the ...

On August 23, 2022, the U.S. Fish and Wildlife Service (Service) issued a notice in response to petitions seeking to list, delist, or revise the critical habitat of four species under the Endangered Species Act (ESA). The Service found the petitions to list the Fish Lake Valley tui chub (Siphateles bicolor ssp. 4) and to delist the southern sea otter (Enhydra lutris nereis) “present substantial scientific or commercial information indicating that the petitioned actions may be warranted,” and are therefore initiating status reviews to determine whether to list and delist the species, respectively. …

Service Proposes Listing and Critical Habitat Designation for Magnificent Snail

For the magnificent ramshorn (Planorbella magnifica), a fresh-water snail species native to southeastern North Carolina, efforts to secure protection under the federal Endangered Species Act have progressed at a snail’s pace. Today, twelve years after environmentalists originally petitioned the U.S. Fish and Wildlife Service (Service) to list the species, the Service proposed to list the magnificent ramshorn as endangered, and to designate two ponds spanning 739 acres as critical habitat for the species. The proposed rule was prompted by a lawsuit filed by the Center of ...

U.S. Fish and Wildlife Service Seeks Input On Conservation Banking Rules

On July 27, 2022, the U.S. Fish and Wildlife Service (Service) published an advance notice of proposed rulemaking (ANPR) seeking comment on species conservation banking. Species conservation banking gives developers and other entities the opportunity to mitigate potential harm to wildlife by allowing them to purchase habitat or species credits from bank owners. The ANPR is a result of a provision in the 2021 National Defense Authorization Act (NDAA) that required the Service to issue regulations for species conservation banking programs. Although the ANPR stems from the NDAA ...

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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