Endangered Species Law & Policy

On February 8, 2022, the U.S. Fish and Wildlife Service (Service) published findings on several petitions to list species under the Endangered Species Act (ESA), some of which have been highly anticipated.

Pursuant to an August 2020 settlement agreement between the Service, WildEarth Guardians, and Western Watersheds Project, the Service published a 12-month finding on a petition to list the Sonoran desert tortoise (Gopherus morafkai). The tortoise is patchily distributed across 68,600 square miles in the Sonoran Desert ecoregion of Arizona and Sonora, Mexico. In its 12-month ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule reclassifying the Morro shoulderband snail (Helminthoglypta walkeriana) from endangered to threatened under the Endangered Species Act (ESA). The final rule also includes a rule issued under ESA section 4(d) to provide for the conservation of the species.

The Morro shoulderband snail, or banded dune snail, is a type of terrestrial snail named after the dark band on the shoulder of its shell. The species is typically found in dense clumps of grass, young patches of ice plant, and stockpiled anthropogenic ...

On January 25, 2022, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti) as endangered under the Endangered Species Act (ESA).

The Sacramento Mountains checkerspot butterfly is a small butterfly with dark brown, red, orange, and cream coloring, punctuated by black spots and dark lines, on its wings. The butterfly is a subspecies of the Anicia checkerspot, or variable checkerspot, in the Nymphalidae family, and is native to the Sacramento Mountains in south-central New ...

On January 12, 2022, the General Land Office of Texas (GLO) filed a lawsuit in the U.S. District Court for the Western District of Texas, challenging the U.S. Fish and Wildlife Service’s (Service) July 27, 2021 negative 90-day finding on a petition to delist the endangered golden-cheeked warbler (Setophaga chrysoparia) (Negative 90-day Finding). The Negative 90-day Finding is the second 90-day finding issued by the Service on the same petition to delist the golden-cheeked warbler.

GLO challenged the first 90-day finding, published on June 3, 2016, as arbitrary and capricious on ...

Recently, I authored a post for DeltaCurrents, the Center for California Water Resources Policy and Management's blog. The focus of the piece is on science and humility. It is a topic of broad importance in society though I focus on it in the resource management context, and, specifically, as it pertains to California's Bay-Delta.

For the past three decades, the federal and California governments and diverse stakeholders have looked to scientists to explain the causes of the long-term population declines in fish species native to California’s Bay-Delta in an effort to chart a ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule listing the Panama City crayfish (Procambarus econfinae) as threatened under the Endangered Species Act (ESA), along with a section 4(d) rule limiting take of the species.  The final rule also includes a designation of eight units of critical habitat, totaling approximately 4,138 acres, in Bay County, Florida.

The Panama City crayfish is a small, semi-terrestrial crayfish that grows to about two inches in length (minus claws), and is found in southcentral Bay County, Florida.  The species’ color pattern ...

On December 22, 2021, the U.S. Fish and Wildlife Service (Service) proposed to list the cactus ferruginous pygmy owl (Glaucidium brasilianum cactorum) (Owl) as threatened under the Endangered Species Act (ESA) primarily due to threats from climate change and habitat loss and fragmentation. The Service has also proposed to issue an ESA section 4(d) rule which would prohibit “take” of the Owl in most cases, while exempting from the prohibition certain land management activities compatible with restoration and improvement of Owl habitat where such activities have been ...

On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies. Department of the Interior (DOI) entries on the Unified Agenda reveal a lengthy set of planned regulatory actions, some of which may have an impact on development and deployment of energy, construction and operation of transportation and other infrastructure, and various other economic activities. … 

This week, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing the Biden administration’s proposal to rescind the definition of habitat.  The definition was promulgated by the Trump administration in response to the decision of the U.S. Supreme Court in 2018 in Weyerhauser Co. v. U.S. Fish and Wildlife Service, a case involving a challenge to the rule designating critical habitat for the dusky gopher frog in the American southeast. … 

On November 10, 2021, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule to list the bracted twistflower (Streptanthus bracteatus), a plant species found only in Texas, as a threatened species under the Endangered Species Act (ESA).  The USFWS is proposing to list the bracted twistflower with a species-specific rule under section 4(d) of the ESA (4(d) rule), as well as to designate approximately 1,607 acres in central Texas as critical habitat for the species.

The bracted twistflower is a flowering annual plant and a member of the mustard family that can grow over ...

Today, the U.S. Fish and Wildlife Service (Service) published a final rule revising the critical habitat designation for the northern spotted owl (Strix occidentalis caurina) under the Endangered Species Act (ESA).  The final rule rescinds a previous rule issued by the Trump Administration on January 15, 2021, which was set to take effect this coming December, and would have excluded approximately 3.4 million acres from the species’ critical habitat designation.  Instead, the Service’s new final rule excludes from the designation only 204,294 acres located across multiple ...

Last week, the Center for Biological Diversity (CBD) filed suit against the U.S. Fish and Wildlife Service in the U.S. District Court for the Central District of California, alleging that the agency violated the Endangered Species Act (ESA) when it failed to timely determine whether the Santa Ana speckled dace (hinichthys osculus ssp.) and the Long Valley speckled dace (Rhinichthys osculus ssp.) warrant listing as endangered or threatened species. … 

On October 25, the U.S. Fish and Wildlife Service (Service) published a proposed rule to designate critical habitat for the coastal distinct population segment (DPS) of Pacific marten (Martes caurina), also known as coastal marten, under the federal Endangered Species Act (ESA).  In the proposed rule, the Service identifies a total of approximately 1,413,305 acres of land in northwestern California and southwestern Oregon to designate as critical habitat for the coastal marten. 

Listed as a threatened species in October 2020, the coastal marten is a medium-sized carnivore in the ...

On October 14, 2021, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the bog buck moth (Hemileuca maia menyanthevora) (= H.iroquois) as endangered under the Endangered Species Act (ESA). The Federal Register notice also states that the Service will make a final determination on the proposed listing within one year, and that it is seeking comments on the proposed designation.

The bog buck moth occurs in groundwater-fed wetlands in Oswego County, New York, and Ontario, Canada, with large amounts of bog buckbean (a plant that is a key food source, or “host plant” for bog buck moth larvae, much as milkweed is a host plant for monarch butterfly larvae). …

On October 18, 2021, the U.S. Fish and Wildlife Service (Service) issued a final rule reclassifying the humpback chub (Gila cypha), a fish endemic to portions of the Colorado River basin, from endangered to threatened under the Endangered Species Act (ESA).  The Service attributed the chub’s status upgrade largely in part to modifications in how reservoir managers are operating their facilities, and the management of nonnative predators.

The chub was first listed as an endangered species in 1967 under the Endangered Species Preservation Act, a predecessor to the ESA.  In 1974, the ...

In the last few weeks, the U.S. Fish and Wildlife Service (Service) has published several major regulatory actions affecting federal avian protections.  The Service has repealed a Trump-era rule that excluded incidental take from liability under the Migratory Bird Treaty Act (MBTA), issued guidance for enforcement of the MBTA against incidental take, and invited comment on a potential MBTA permitting program.  Separately, the Service has invited comment on ways to improve its existing permitting program for the incidental take of eagles (Eagle Permit Program). … 

Last week, the U.S. Fish and Wildlife Service (Service) published two proposed rules to delist a total of 24 species under the Endangered Species Act (ESA).  First, the Service published a proposed rule delist 23 species as a result of the species’ extinction.  The 23 now-extinct species include thirteen species of birds, eight freshwater mussels, one Texas fish, and one Hawaiian plant.  The Federal Register notice indicates that, based on the best available scientific and commercial data, these species are no longer extant, and therefore no longer meet the definitions of ...

This week, the U.S. Fish and Wildlife Service (USFWS) issued three separate notices in the Federal Register concerning the agency’s 12-month findings on a number of petitions to list various wildlife and plants under the Endangered Species Act (ESA).

First, the USFWS announced a positive 12-month finding on a petition to list the Peñasco least chipmunk (Neotamias minimus atristriatus), a small mammal from New Mexico.  The USFWS proposes to list the Peñasco least chipmunk as an endangered species under the ESA and to designate approximately 6,574 acres of land as critical ...

On September 20, 2021, the U.S. District Court for the Central District of California set aside the U.S. Fish and Wildlife Service’s (Service) negative 12-month finding (Finding) on a petition by WildEarth Guardians (Guardians) to list the Joshua tree (Yucca brevifolia) as threatened under the Endangered Species Act (ESA).

The petition had alleged that the Joshua tree is threatened by the effects of climate change and its associated effects, including drought and increasing wildfires. On September 14, 2016, the Service issued a positive finding on Guardians’ petition ...

Today, the U.S. Fish and Wildlife Service (Service) announced its 90-day findings on petitions to list two proposed distinct population segments (DPS) of the gray wolf (Canis lupus) as threatened or endangered under the Endangered Species Act (ESA): a Northern Rocky Mountains DPS and a Western United States DPS. The Service determined that listing may be warranted, and announced its intention to initiate a status review for these populations of the species.

In 1978, except for the Minnesota population, the gray wolf was listed as an endangered species throughout the ...

On September 8, 2021, the U.S. Fish and Wildlife Service ("USFWS") published a final rule in the Federal Register listing the slenderclaw crayfish as endangered under the Endangered Species Act ("ESA") and identifying approximately 78 miles of river in DeKalb and Marshall Counties, Alabama as critical habitat for the species.

The slenderclaw crayfish is a small freshwater crustacean that is endemic to streams on Sand Mountain within the Tennessee River Basin in Alabama. Most of the slenderclaw crayfish’s natural habitat was flooded when the Tennessee River was dammed in 1939 to ...

The U.S. Fish and Wildlife Service (Service) recently listed the Franklin’s bumble bee as an endangered species under the Endangered Species Act.  Historical records indicate that the species is endemic to southwest Oregon and northern California.  The last known record of the species dates back to 2006.  The Service’s decision is the culmination of a listing process that began 11 years ago with the submission of a petition to list by the Xerces Society in 2010.

In its press release announcing the decision, the Service both noted that Franklin’s bumble bee has the smallest known ...

On August 18, 2021, the U.S. Fish and Wildlife Service (“Service”) published in the Federal Register a final rule designating more than 1,315 acres across 14 units as critical habitat (“Final Rule”) for two neotenic salamander species known only from Williamson and Bell Counties, Texas: the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eurycea chisholmensis).  The species are “neotenic” because they do not transform into a terrestrial form and instead spend their entire life cycle in water.  The Final Rule was published in accordance with a ...

Today, the U.S. Fish and Wildlife Service (“Service”) published in the Federal Register a proposal to list six Central Texas mussel species under the Endangered Species Act (“ESA”), to issue an ESA section 4(d) rule for one of the species, and to designate critical habitat (“Proposed Rule”).  Specifically, the Service has proposed to list the Guadalupe fatmucket (Lampsilis bergmanni), Texas fatmucket (Lampsilis bracteata), Guadalupe orb (Cyclonaias necki), Texas pimpleback (Cyclonaias (=Quadrula) petrina), and false spike (Fusconaia (=Quincuncina) mitchelli) as endangered ... 

On Monday, the U.S. Fish and Wildlife Service (FWS) published a final rule delisting the now-recovered Cumberland sandwort (Arenaria cumberlandensis) under the Endangered Species Act (ESA).  Originally listed as endangered in 1988, the Cumberland sandwort is a perennial plant species occurring in cave-like “rockhouses” or bluff sites throughout northern Tennessee and southern Kentucky.  In 1996, the FWS released a recovery plan for the species.  By December of 2013, the FWS recommended downlisting the Cumberland sandwort to threatened status, and in April of 2020, the ...

Last Friday, the U.S. Fish and Wildlife Service (“USFWS”) finalized the removal of the now-recovered Trifolium stoloniferum (running buffalo clover) from the list of endangered and threatened wildlife and plants protected under the Endangered Species Act (“ESA”).  Running buffalo clover is a perennial species with small white flowers and leaves divided into three leaflets.  The plant produces creeping stems that “run” along the surface of the ground to re-root and form new clusters of clover.

The USFWS initially listed the running buffalo clover as an endangered ...

This week, the U.S. Fish and Wildlife Service (FWS) published a 12-month finding on a petition to revise the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) under the Endangered Species Act (ESA).  The Mount Graham red squirrel is a subspecies of red squirrel occurring only in certain high-elevation areas of the Coronado National Forest in Arizona. 

In December of 2017, a group of eNGOs including the Center for Biological Diversity submitted a petition to FWS, requesting that the agency expand the subspecies’ ...

This week, the U.S. Fish and Wildlife Service (“USFWS”) announced the availability of two revised economic analysis documents related to the agency’s proposed rule concerning incidental take under the Migratory Bird Treaty Act (“MBTA”).  The documents evaluate the potential for the proposed rule to impact small entities, including businesses, governmental jurisdictions, and other organizations.

When federal agencies issue a new proposed or final rule, they are required under the Regulatory Flexibility Act of 1980 (“RFA”) to evaluate the potential effects ...

On July 13, the U.S. Fish and Wildlife Service (Service) published a proposed rule to designate critical habitat for the pearl darter (Percina aurora) under the federal Endangered Species Act (ESA).  Listed as a threatened species under the ESA in September 2017, the pearl darter is a small, snub-nosed fish whose historical range includes Mississippi and Louisiana.  The proposed critical habitat designation for the pearl darter includes a total of approximately 517 river miles along the Pascagoula River and Pearl River basins, which run across multiple counties in ...

On July 7, 2021, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the razorback sucker (Xyrauchen texanus) no longer warrants listing as an endangered species under the federal Endangered Species Act (ESA). As such, FWS has proposed to downlist the species to threatened status.

The razorback sucker is a freshwater fish measuring up to 3 feet long that gets its name from the bony ridge behind its head. The species is commonly found throughout the reservoirs, floodplains, and backwaters of the Colorado ...

In an article published this week in California Fish and Wildlife, co-authors Stephanie Clark, Ashley Remillard and I provide an overview of the process of determining whether to list species as threatened or endangered, and thereby protect them, under the California Endangered Species Act (CESA). Listing is the gateway to protection under CESA. The process is analogous to listing under the federal Endangered Species Act in certain respects but it also differs in a number of respects, perhaps the most important being that the decision whether to list a species is made by the Fish and ...

On June 29, 2021, fourteen members of Congress delivered a letter to Secretary of the Interior Deb Haaland urging the U.S. Fish and Wildlife Service (Service) to use its authority to list the monarch butterfly (Danaus plexippus) on an emergency basis under section 4 of the Endangered Species Act (ESA). The letter, which garnered only Democratic support, notes that the population of western monarchs has sunk to under 2,000 individuals and states that immediate action is necessary to prevent extinction of the species.

Section 4 of the ESA authorizes the Service to immediately place a ...

On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA).  The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability ...

On June 4, 2021, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act (ESA) finalized under the prior administration. The U.S. Fish and Wildlife Service (Service) has not yet published these proposed rules in the Federal Register, nor has the Service provided the exact dates when it intends to publish the proposed rules.

In its announcement, the Service indicates its intent to rescind regulations governing how the Service conducts critical habitat exclusion analyses under ESA section 4(b)(2) and how ...

On May 14, 2021, the Department of Justice filed a brief with the Supreme Court arguing that the Court should not hear the case of Kansas Natural Resource Coalition v. Department of Interior (“KNRC”). KNRC is a challenge to a rule interpreting the Endangered Species Act (“ESA”) that was jointly issued by the United States Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) in 2003: The “Policy for Evaluation of Conservation Efforts When Making Listing Decisions,”(68 Fed. Reg. 15,100 ...

In a per curiam decision, the United States Court of Appeals for the D.C. Circuit dismissed the Center for Biological Diversity’s (CBD) challenge to the Fish and Wildlife Service’s (Service) process for assessing the status of species to inform regulatory decisions with respect to those species.  That process, referred to as species status assessment (SSA), is akin to a biological risk assessment for the target species.  It has been developed by the Service over the past several years and provides a more structured approach to assessing listing, delisting, uplisting, and ...

The U.S. Fish and Wildlife Service (USFWS) has announced the next chapter in the lesser prairie chicken’s (Tympanuchus pallidicinctus) (LEPC) tumultuous listing history. On May 26, 2021 the USFWS announced that it will propose a rule to establish a Northern distinct population segment (DPS) and a Southern DPS of the LEPC.  USFWS has proposed to list the Southern DPS – consisting of portions of New Mexico and Texas – as endangered. If finalized, the ESA take prohibition would apply across the Southern DPS without exception. The USFWS proposes to list the Northern DPS ...

On May 17, 2021, the United States Court of Appeals for the Ninth Circuit held that a U.S. Fish and Wildlife Service (Service) rule requiring that affected states receive a 30-day notice of an intent to file a petition to list a species as endangered or threatened is inconsistent with the Endangered Species Act (ESA). See Friends of Animals v. Haaland, Case No. 20-35318 (9th Cir. May 17, 2021); 50 C.F.R. § 424.14(b).

In reaching its decision, the Ninth Circuit reviewed the Service’s rulemaking under a two-step framework established by the Supreme Court in the landmark case Chevron U. S ...

On May 5, 2021, the U.S. Fish and Wildlife Service (“USFWS”) published its updated collision risk model (“CRM”) for bald and golden eagles at wind energy facilities.  The CRM is a complex Bayesian model the USFWS has endorsed to predict eagle fatalities at wind energy facilities seeking eagle incidental take authorization under the Bald and Golden Eagle Protection Act (“BGEPA”).  The USFWS previously published the proposed updates to CRM for public comment on two occasions, seeking input on three alternatives: (1) Use updated species-specific model inputs and use the ...

The U.S. Fish and Wildlife Service (Service) recently announced its finding that three salamander species do not warrant listing as endangered or threatened species under the Endangered Species Act (ESA). The Service’s announcement follows a court-approved settlement agreement in which the Service agreed to make a 12-month finding for the Shasta salamander (Hydromantes shastae), Samwel salamander (H. samweli), and Wintu salamander (H. wintu). The finding comes despite concerns from some environmental groups that a proposed project to raise the height of the Shasta Dam and ...

In the first week of May, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) proposed rules to remove six species from the lists of endangered and threatened wildlife and plants under the Endangered Species Act (“ESA”).

On May 4, 2021, NMFS issued a proposed rule to remove Siderastrea glynni, a coral originally found at Urabá Island, Panama Gulf, from the ESA lists.  The coral was first discovered in 1992 and was initially thought to be the only extant Siderastrea species in the eastern Pacific Ocean.  NMFS received a petition to ...

Please join us on May 6, 2021 from 11:00 a.m. to 12:30 p.m. PT as Nossaman’s Coastal Development and Environment & Land Use Groups present “Charting a Course for Offshore Wind Energy in California” to discuss current proposals and pending regulations concerning offshore wind development along the California coast.

We will be participating on a top tier panel of coastal specialists which will also include: Kate Huckelbridge, Deputy Director of Energy, Ocean Resources & Federal Consistency, CA Coastal Commission; Jennifer Lucchesi, Executive Officer, State Lands ...

This week, the United States Fish and Wildlife Service ("Service") published a final rule designating critical habitat for the northern Mexican gartersnake (Thamnophis eques megalops) under the Endangered Species Act (“ESA”).  The final critical habitat designation includes a total of approximately 20,326 acres of land located in Arizona and New Mexico. 

The northern Mexican gartersnake, an olive-colored snake identifiable by a pattern of vertical yellow stripes and paired black dots lining its body, typically occurs in shallow wetlands and aquatic habitats, such ...

This week, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing the role of conceptual ecological models in implementing the federal Endangered Species Act. Conceptual ecological models are a specialized subset of conceptual models generally intended to describe the environmental factors that affect an ecological community, a species, or a population. Conceptual ecological models are useful in a variety of contexts ranging from development of research proposals and monitoring schemes, to regulatory ...

On March 10, 2021, the United States Court of Appeals for the Fifth Circuit upheld a biological opinion (BiOp) and incidental take statement (ITS) issued by the U.S. Fish and Wildlife Service (Service) in connection with a $5.2 billion project to export liquefied natural gas from a terminal located on the south bank of the Brownsville Ship Channel in Cameron County, Texas (Project). Sierra Club v. Dep’t of the Interior, Case No. 20-60319 (5th Cir. 2021).  In reaching its decision, the Fifth Circuit refused to second-guess the agencies consistent with the deferential standard of ...

In the 1978 amendments to the Endangered Species Act (ESA), Congress created the Endangered Species Act Committee, also know as the “God Squad.” The God Squad is composed of mostly Cabinet-level officials and has the authority to exempt a federal agency action from the ESA’s prohibition on taking actions that could lead to the extinction of an endangered or threatened species. While the God Squad has been around for more than four decades, its awesome powers have rarely been invoked. Perhaps due to scientific advances, it is possible that the God Squad may itself be heading for ...

Recently, the Department of the Interior released a pre-publication version of a Federal Register notice delaying the effective date of the Migratory Bird Treaty Act (MBTA) take definitional rule to March 8, 2021, and opening a 20-day public comment period, which will close March 1, 2021.  The MBTA was enacted in 1918 to implement an international convention for the protection of migratory birds in response to declines in populations of a number of species of birds resulting from widespread hunting and poaching.  The take definitional rule states in full:

“The prohibitions of the ...

In December 2020, the United States District Court for the District of Montana issued an order on cross-motions for summary judgment concluding that it lacked jurisdiction—under both the Administrative Procedure Act (APA) and Endangered Species Act (ESA)—to hear a lawsuit involving an environmental group’s denied request to update an existing recovery plan for the grizzly bear (Ursus arctos horribilis). Ctr. for Biological Diversity v. Bernhardt, CV 19-109-M-DLC, at 26 (D. Mont. Dec. 23, 2020) (Order). After listing the grizzly bear nearly half a century ago, the U.S ...

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement ...

On January 13, 2021, the U.S. Fish and Wildlife Service (Service) published a final rule to remove the inland population of the Interior least tern (Sterna (now Sternula) antillarum) from the list of endangered and threatened wildlife under the Endangered Species Act (ESA).  Originally listed as an endangered species under the ESA in 1985, the Interior least tern is a small, fish-eating bird occurring along the Arkansas, Ohio, Mississippi, Missouri, Red, and Rio Grande rivers.  

Prior to listing, the Interior least tern’s population had fallen below 2,000 as a result of habitat ...