Endangered Species Law & Policy

On December 31, 2020, the National Marine Fisheries Service (“NMFS”) proposed to amend regulations implementing the Atlantic Large Whale Take Reduction Plan (“ALWTRP” or “Plan”) with the stated goal of reducing the incidental mortality and serious injury to the endangered North Atlantic right whale, as well as fin whales and humpback whales, in the Northeast commercial lobster and crab trap/pot fisheries. The agency stated that the amendment is needed in order to comply with the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA” ...

On December 17, 2020 the U.S. Fish and Wildlife Service (“USFWS”) published its 12-month finding that listing of the monarch butterfly (Danaus plexippus plexippus) is warranted but precluded by higher priority actions. With this finding, the monarch becomes a candidate species with a listing priority designation of “8.”  An “8” indicates the magnitude of threats to the monarch is moderate to low and those threats are imminent. In the announcement, the USFWS notes that 161 other species are currently prioritized above the monarch for listing consideration. Each year ...

On December 15, 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the agencies) released a pre-publication version of a final rule providing a definition of “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  The agencies released a proposed rule defining habitat in August 2020 in response to a unanimous decision by the U.S. Supreme Court in 2019 overturning a lower court decision that upheld a controversial determination of critical habitat by the U.S. Fish and ...

The Sacramento Superior Court upheld a challenge to a decision by the California Fish and Game Commission to designate four subspecies of bumble bees as candidates for protection under the California Endangered Species Act (CESA). The decision in Almond Alliance et al. v. California Fish and Game Commission reinforces a long line of authority dating back several decades suggesting that insects are not subject to protection under CESA. It also reflects respect for the role of the coordinate branches of government in formulating, executing and interpreting the laws that the ...

On November 16, 2020, the U.S. Fish and Wildlife Service (“USFWS”) published its annual review of species that are candidates for listing as either threatened or endangered species, its findings on resubmitted petitions for listing actions, and its annual description of progress on pending listing actions.  Among those pending listing actions are two petitions that are highly relevant for water agencies and water users in California – a petition to reclassify the delta smelt (Hypomesus transpacificus) and the pending listing of the longfin smelt (Spirinchus ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the past year, starting with last summer’s Endangered Species Act (ESA) amendments. Some of these challenges stem from changes in regulatory schemes or adverse court holdings, while others stem from uncertainty of pending ESA listing decisions and other actions. 

In our recent webinar concerning Adapting Linear Infrastructure Projects to Changing Regulatory Frameworks, we discussed the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. One of the topics we covered was the 2019 regulatory amendments to the Endangered Species Act (ESA). In the following video clip from the webinar, we review some of the revised definitions and updated language in the new version of the regulations.

If you would like to view the full webinar ...

On August 19, 2020, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would remove the Stephens’ kangaroo rat (Dipodomys stephensi) from the federal list of Endangered Species. The proposed rule would, instead, list the kangaroo rat as threatened under the Endangered Species Act (ESA), and would provide a rule under ESA section 4(d) to provide for conservation of the kangaroo rat.

The Stephens’ kangaroo rat was originally listed as an endangered species in 1988. It is a small, nocturnal mammal, with external cheek pouches, large hind legs, a long tail ...

The California Fish and Game Commission deferred the decision on whether to make the western Joshua tree a candidate for listing to a special meeting in September 2020. In a hearing on August 20, 2020, the Commission heard a wide variety of perspectives on whether listing the species may be warranted. The California Department of Fish and Wildlife’s 90-day evaluation recommended a “may be warranted” finding but at the hearing Director Bonham indicated he was open to deferring the decision in order to work with the stakeholders ... 

Please join us for a complimentary webinar on July 30, 2020 from 11:00 a.m. – 12:30 p.m. PT, where we will discuss the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. We will examine...

On May 15, 2020, the U.S. Fish and Wildlife Service ("Service") published a final rule in the Federal Register announcing the agency’s determination to list the Southern Sierra Nevada (SSN) Distinct Population Segment (DPS) of fisher (Pekania pennanti) as endangered under the Endangered Species Act (ESA).

The fisher is a small, carnivorous mammal in the mustelid (commonly referred to as weasel) family. The SSN DPS of fisher, which occurs in California, was recently determined by the Service to be a separate subpopulation of the West Coast DPS.

The Service first proposed to list ...

On May 5, 2020, the United States Fish and Wildlife Service (FWS) decided to list the island marble butterfly (Euchloe ausonides insulanus) as an endangered species under the Endangered Species Act (ESA).  The FWS decision also designated approximately 812 acres of critical habitat for the species on the south end of San Juan Island, San Juan County, Washington.

Until 1998 when the species was rediscovered on San Juan Island, the island marble butterfly was thought to be extinct because no known occurrences of the species were documented after 1908. In 2006, the FWS issued a 12-month ...

According to a handful of environmental groups, the answer is a definitive yes. And after the U.S. Fish & Wildlife Service (“FWS”) issued a 90-day finding concluding in the alternative, earlier this week three environmental groups decided to take FWS to court. The lawsuit was filed by the Buffalo Field Campaign, Friends of Animals, and Western Watersheds Project. According to the press release issued by one of the environmental groups, FWS “applied the wrong evidentiary standard, and disregarded evidence of factors that imperil the unique and distinct subpopulations of ...

On February 5, 2020, the National Marine Fisheries Service (NMFS) issued its 12-month finding on the petition to list summer-run steelhead in Northern California (Oncorhynchus mykiss irideus) as endangered under the Endangered Species Act (ESA), concluding that listing is not warranted because the summer-run steelhead does not qualify as a distinct population segment of the Northern California steelhead. Despite the negative finding, the summer-run steelhead is still protected under the ESA. How is that possible, you ask?

Simple, I say. The summer-run and winter-run ...

Yesterday, in Center for Biological Diversity v. Everson​, the United States District Court for the District of Columbia overturned the U.S. Fish and Wildlife Service’s (USFWS) decision to list the northern long-eared bat (Myotis septentriodnalis) as threatened rather than endangered, and remanded the decision back to the agency.  The threatened listing will remain intact while USFWS undertakes a new listing decision.

In addition to remanding the threatened listing decision back to the USFWS, the court also vacated a portion of the USFWS’s and National Marine ...

On November 1, 2019, Chad Ponce of Jacksonville, Florida pleaded guilty to killing a smalltooth sawfish (Pristis pectinata), an endangered species protected under the federal  Endangered Species Act (ESA) and Florida Endangered and Threatened Species Act . Sawfishes are a family of rays characterized by a long, narrow, flattened rostrum, or nose extension, lined with sharp teeth, arranged in a way that resembles a saw. Sawfish use that rostrum to sense and attack prey; without it, they can’t survive. They are among the largest fish, with some species reaching lengths of up to 17-18 ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

On August 6, 2019, the U.S. Fish and Wildlife Service (FWS) published a 90-day finding that listing the Yellowstone Park bison (Bison bison bison) under the Endangered Species Act is not warranted. FWS also found that listing the Mojave poppy bee (Perdita meconis) and revising the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) may be warranted ...

On August 15, 2019, the U.S. Fish and Wildlife Service (FWS) published a series of notices in the Federal Register announcing the agency’s 12-month and 90-day findings on petitions to list a number of species under the Endangered Species Act (ESA).  Most prominently, the FWS declined to list two species commonly known as the Joshua tree (Yucca brevifolia and Yucca jaegeriana) ...

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register ...

In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (Service) has put into action its internal plan to add quantitative criteria to recovery plans.  The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted.  In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has recovered, including the number of established populations that would make the ...

The Center for Biological Diversity and Mountain Lion Foundation submitted a petition to the California Fish and Game Commission (the Commission) to list mountain lions (Puma concolor) in southern and central California as threatened or endangered pursuant to the California Endangered Species Act.  The petition identifies habitat loss and fragmentation, due to roads and development, as significant threats to the survival of the local populations.

The petition acknowledges that there is no reliable estimate of mountain lion abundance in California, but includes estimates for ...

On June 12, 2019, the California Fish and Game Commission (Commission) voted 3-1 that listing four subspecies of bumble bee may be warranted under the California Endangered Species Act (CESA).​  The decision was made after the Xerces Society, Center for Food Safety, and Defenders of Wildlife filed a petition to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckley cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered species under CESA.

Presently, no insects are ...

On May 3, 2019, the U.S. Fish and Wildlife Service (Service) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (ESA) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year ...

Over the last few weeks, besides proposing to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Species (which we covered here), the U.S. Fish and Wildlife Service (Service) has made a few other moves related to the Endangered Species Act (ESA).

On Monday, April 8, 2019, the Service published a final rule, removing one species from the List of Endangered and Threatened Species, adding 16 separate species to the list, and updating the existing entries for 17 more species.  Specifically, the Service added the following species to the ESA List: Gulf grouper ...

On January 28, 2019, the Superior Court for San Diego County upheld the California Fish and Game Commission’s (Commission) 2015 decision to list the gray wolf (canis lupus) under the California Endangered Species Act (CESA). (Cal. Cattlemen’s Assn. v. Cal. Fish & Game Com. (Super. Ct. San Diego County, 2019, No. 37-2017-00003866-CU-MC-CTL).)

CESA defines an endangered species as a native species or subspecies of bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or ...

On November 21, 2018, the U.S. Fish and Wildlife Service (Service) published a final rule listing the candy darter (Estheostoma osburni) as endangered and proposing critical habitat for the species.  The candy darter is a small, freshwater fish species native to Virginia and West Virginia.  The Service’s announcement finalizes its proposed rule to list the candy darter, which was published on October 4, 2017, with one significant difference – the Service originally proposed to list the candy darter as threatened, but the final rule lists the candy darter as endangered.

The candy ...

On October 16, 2018, the Xerces Society for Invertebrate Conservation, Defenders of Wildlife, and the Center for Food Safety submitted a petition to the California Fish and Game Commission (Commission) to list the Crotch bumble bee (Bombus crotchii), Franklin's bumble bee (Bombus franklini), Suckely cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered under the California Endangered Species Act.  The Commission is required under the California Fish and Game Code to refer the petition to the California Department of Fish ...

The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA):

• In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis). The court held that the Service violated the ESA when it delisted the Greater Yellowstone grizzly distinct population segment (DPS) without any analysis of ...

On August 23, 2018, the California Fish and Game Commission ("Commission") listed the Humboldt marten (Marten caurina humboldtensis) as an endangered species under the California Endangered Species Act (CESA).  The Commission also ratified its decision to list the Lassics lupine flower (Lupinus constancei) as an endangered plant under CESA.

Members of the weasel family, Humboldt martens were previously designated as a California Species of Special Concern and are currently under review for listing under the federal Endangered Species Act.  Over the last quarter century ...

In recent weeks, the Trump Administration and Congress have proposed changes to the Endangered Species Act (ESA) and its implementing regulations. Lawmakers from the Congressional Western Caucus introduced nine bills that would, according to the 15 legislators that introduced the bills, amend and modernize the ESA.  The lawmakers assert that the bills would also incentivize voluntary conservation efforts, let states enter into cooperative agreements for recovery, and prioritize data from local communities in making scientific decisions about conservation.

The bills ...

On Monday, June 18, 2018, the U.S. Fish and Wildlife Service (FWS) announced that it has initiated five year status reviews for fifty species in California, Nevada, and the Klamath Basin of Oregon, pursuant to the Endangered Species Act (ESA).  Included among the species whose ESA listing status is being reviewed are 19 animal species, four of which are currently listed as threatened, while the remaining 14 are currently listed as endangered.  Additionally, the FWS is reviewing thirty-one plant species.

As part of its review, FWS will be accepting new information pertinent to the ...

On April 19, 2018, the California Fish and Game Commission voted 4-0 to list the tricolored blackbird (Agelaius tricolor) as a threatened species. A statewide survey conducted in 2017 estimated the California population of the species to be over 175,000 birds. The species is broadly distributed in California, occurring in roughly 40 counties, though the bulk of the population resides in the Central Valley.

The Center for Biological Diversity petitioned for the emergency listing of the species in 2015, based on a dramatic decline in population estimates from 2008 to 2011 and again ...

On April 3, 2018, the U.S. Fish and Wildlife Service (Service) published a final to rule listing the yellow lance mussel (Elliptio lanceolata) as threatened under the Endangered Species Act (ESA).  The final rule states that only seven populations of this freshwater mussel remain, all of which are located in Maryland, Virginia, and North Carolina.  The listing was prompted by a mega-petition filed by the Center for Biological Diversity and several other environmental organizations in 2010 that included the mussel.  In September 2015, after litigation had been filed regarding the ...

On March 16, 2018, the U.S. Fish & Wildlife Service (FWS) announced the withdrawal of its 2016 proposed rule to list San Fernando Valley spineflower (Chorizanthe parryi var. fernandina), a southern California plant species, as a threatened species under the Endangered Species Act (ESA).  The spineflower’s conservation has been one component of the long-standing conflict over the development of Newhall Ranch in northern Los Angeles County, since its discovery on the property in 2000.

According to FWS, the spineflower no longer meets the statutory definition of a threatened or ...

On February 27, 2018, the National Marine Fisheries Service (Service) published a 90-day finding on the Karuk Tribe and Salmon River Restoration Council’s (Petitioners) petition to list the Upper Klamath-Trinity Rivers Basin (UKTR) Chinook salmon (Oncorhynchus tshawtscha) evolutionarily significant unit (ESU) as endangered or threatened.  Based on the information included in Petitioners’ filing, the Service found that listing the UKTR ESU as endangered or threatened under the Endangered Species Act (ESA) may be warranted.

The Service’s determination follows a ...

On February 27, 2018, the U.S. Fish and Wildlife Service (FWS) finalized a regulation removing Eureka Valley evening-primrose (Oenothera californica ssp. eurekensis) from the Federal List of Endangered and Threatened Plants.  The delisting, originally proposed in 2014, is based on the elimination of threats to the subspecies, accomplished largely as a result of the 1994 designation and ongoing management of its dune habitat as federal wilderness within Death Valley National Park.  The National Park Service manages the federal wilderness area under the Park Service’s Organic ...

On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA).

At its February 2018 meeting, the California Fish and Game Commission (Commission) received the one-year status review report on a petition to list tricolored blackbird (Agelaius tricolor) as a threatened or endangered species from the Department of Fish and Wildlife (Department).  In the status report the Department recommends listing the species as threatened under the California Endangered Species Act.  Because the species is so widely distributed and abundant, listing could have major impacts on building, farming, and public infrastructure activities and projects across ...

On February 6, 2018, the National Marine Fisheries Service (NMFS) announced an extension of the public comment period for the 5-year review of the endangered Western Distinct Population Segment (DPS) of the Steller sea Lion (Eumetopias jubatus).  The Western DPS includes Steller sea lions that reside in the central and western Gulf of Alaska, Aleutian Islands, as well as those that inhabit coastal waters in Asia.  According to the Federal Register notice, the extension of the comment period to April 6, 2018 was issued in response to a request for additional time.  In addition ...

On January 30, 2018, the National Marine Fisheries Service (NMFS) issued a final rule listing the oceanic whitetip shark (Carcharinus lonigmanus) as a threatened species under the Endangered Species Act (ESA).  This final listing rule is the culmination of NMFS’ analysis following the 2015 petition filed by Defenders of Wildlife seeking to either list the species range-wide or, alternatively, to list two distinct populations (DPSs) of the oceanic whitetip shark.  In the final rule, NMFS notes that the shark is a globally-distributed species that has not undergone any range ...

As 2018 approaches, the U.S. Fish and Wildlife Service (Service) made a few announcements that will likely impact the list of threatened and endangered species.  In these last 11 days of 2017, the Service announced 90-day findings on petitions to list or reclassify five species, and 12-month findings on petitions to list or de-list two species under the ESA.

• On December 20, 2017, the Service announced 90-day findings on petitions for five separate species. The Service found that the petitioned actions for each of the five species may be warranted, based on the information presented in ...

In the Fall 2017 publication of the Unified Agenda of the Office of Information and Regulatory Affairs, the Department of the Interior announced its intent to revise the U.S. Fish and Wildlife Service’s regulations governing interagency cooperation and exceptions to the conservation of endangered and threatened species of fish, wildlife, and plants. In a separate announcement in the same publication, the Department of the Interior stated that it intends to revise regulations governing the listing of endangered and threatened species and the designation of critical ...

On October 17, 2017, the California Fish and Game Commission (Commission) published notice of its preliminary positive finding on a petition to list the Cascades frog (Rana cascadae) as threatened or endangered under the California Endangered Species Act (CESA).  The Cascades frog inhabits a variety of habitats—including large lakes, ponds, wet meadows and streams—at mid-to-high elevations from the Klamath-Trinity region, along the Cascades Range axis in the vicinity of Mt. Shasta, southward to the headwater tributaries of the Feather River.  The California populations ...

On Thursday, October 5, 2017, the U.S. Fish & Wildlife Service (Service) announced 12-month not warranted findings on petitions to list 25 species as endangered or threatened under the Endangered Species Act (ESA).  It is likely that the Service’s not warranted findings represent the Trump administration’s departure from the previous administration’s  90-day determinations wherein the Service found that the petitions contain substantial information that listing may be warranted.  For over half of the 25 species, the not warranted findings satisfy the terms of various ...

On September 20, 2017, the U.S. Fish and Wildlife Service (USFWS) listed three separate species under the Endangered Species Act ("ESA").  USFWS listed the Sonoyta mud turtle (Kinosternon sonoriense) as endangered, and the 'I'iwi (Drepanis coccinea) and pearl darter (Percina aurora) as threatened species under the ESA.  Despite listing all three species, the USFWS deferred designating critical habitat for the three species.  The three listing decisions, all of which were compelled by settlements that the USFWS entered into during the Obama administration, are summarized below.

On August 9, 2017, the National Marine Fisheries Service (NMFS) issued a 12-month finding on a petition to list the Pacific bluefin tuna (Thunnus orientalis) as an endangered or threatened species under the Endangered Species Act (ESA), concluding that listing at this time is not warranted.  NMFS determined that the species is not endangered throughout all or a significant portion of its range, and that it is not likely to become endangered in the foreseeable future.

NMFS’s 12-month finding follows the Center for Biological Diversity’s June 20, 2016 petition to list the ...

On June 23, 2017, the U.S. Fish and Wildlife Service (Service) promulgated a long-awaited final rule to delist the Hualapai Mexican vole (Microtus mexicanus hualpaiensis) (HMV) due to the Service’s determination that the original 1987 listing of the HMV under the Endangered Species Act (ESA) was in error.  Based upon more recent scientific and commercial information, the Service concluded that the HMV is not a distinguishable subspecies of Mexican vole and thus is not a valid taxonomic entity listable under the ESA.  This error in taxonomic classification was first raised by a ...

Earlier this week, the U.S. Fish & Wildlife Service (Service) issued a notice in the Federal Register that it was reopening the comment period on five proposed rules for four plant species.  Specifically, the proposed rules include the following: (1) listing Guadalupe fescue (Festuca ligulata) as an endangered species; (2) designating Guadalupe fescue critical habitat; (3) reclassifying Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii) from endangered to threatened; (4) reclassifying Kuenzler hedgehog cactus (Echinocereus fendleri var.

On January 11, 2017, the U.S. Fish and Wildlife Service (Service) published a final rule listing the rusty patched bumble bee (Bombus affinis) as endangered under the Endangered Species Act (ESA).  The rusty patched bumble bee’s historic range encompassed areas of 28 states and the District of Columbia (Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota ...

On January 5, 2017, the National Marine Fisheries Service (NMFS) published notice of the availability of the final Recovery Plan for the Cook Inlet Beluga Whale (Delphinapterus leucas).  The Endangered Species Act (ESA) requires the preparation and implementation of recovery plans for all listed species, unless the Secretary of Commerce determines that doing so does not promote the recovery of the species.  NMFS listed the Cook Inlet distinct population segment (DPS) of beluga whale (CI beluga) as endangered under the ESA in 2008 and designated critical habitat in 2011.