Endangered Species Law & Policy

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the ...

On September 4, 2018, the Center for Biological Diversity filed a lawsuit under the federal Freedom of Information Act against the U.S. Fish and Wildlife Service (Service).  The lawsuit alleges that the Service has used irresponsible scientific methods while conducting its review of the endangered status for the American burying beetle (Nicrophorus americanus) pursuant to the Endangered Species Act (ESA).  The lawsuit was triggered, in part, by a letter to the Service authored by one of the scientists who initially participated in the Service’s risk assessment for the beetle ...

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 ...

On August 10, 2018, the representative from Indiana's 4th Congressional District introduced a bill entitled: "To amend the Endangered Species Act of 1973 to remove freshwater mussels from the list of endangered and threatened species."  While the text of the bill isn't yet available, based on the title of the bill one can reasonably surmise that the author of the bill believes that freshwater mussels are not deserving of Endangered Species Act protection.  Further, this interpretation is supported by recent articles detailing the representative's long-running ...

This week, the media has reported two changes in key roles at the Department of the Interior (DOI) and U.S. Fish and Wildlife Service (USFWS).  Greg Sheehan has reportedly left his role as Principal Deputy Director of USFWS.  Sheehan had held the role since appointed by DOI Secretary Zinke in June 2017.  As the Trump administration has not yet filled the role of Director of the USFWS, Sheehan had been the top official within USFWS.  Sheehan is expected to leave his role next week.

The media also reported this week that Andrea Travnicek has been named as Acting Assistant Secretary for Fish ...

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 ...

The Klamath River Renewal Corporation (the "corporation") recently submitted a plan for the removal of four dams on the lower Klamath River to the Federal Energy Regulation Commission (FERC). In it, the corporation indicates its intent to sidestep compliance with the California Endangered Species Act and California’s Lake and Streambed Alteration Program by asking FERC to opine that those state law requirements are preempted by federal law. Among other things, these laws protect the critically endangered Lost River sucker (Deltistes luxatus) and shortnose sucker ...

The U.S. District Court for the District of New Mexico granted New Mexico’s motion for summary judgment in a case brought by the Humane Society seeking to invalidate State trapping regulations related to cougars (Puma concolor).  Plaintiffs argued that the regulations, which amended existing regulations that authorize trapping of cougars, violate the Endangered Species Act’s prohibition on take of protected species.  Plaintiffs reasoned that the amended regulations would inevitably cause the take of listed Mexican wolves (Canis lupus baileyi) since cougars and wolves ...

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and the Second Amendment, the addition of Justice Kavanaugh to the Supreme Court could also have significant effects on a range of environmental laws and regulations, including the Endangered Species Act (ESA).

One of Judge Kavanaugh’s most well-known environmental opinions is from Otay Mesa Property, L.P. v. Interior, 646 F.3d 914 (D.C. Cir. 2011). In Otay Mesa, the U.S. Fish and Wildlife Service (Service) had observed four endangered San Diego fairy shrimp (Branchinecta sandiegonensis) in one location on a dirt road on the plaintiffs’ 143-acre property. Based on that single observation, the Service designated the plaintiffs’ property as occupied habitat for purposes of its critical habitat designation under the ESA. The D.C. Circuit held that substantial evidence did not support the Service’s designation of critical habitat for the San Diego fairy shrimp. Judge Kavanaugh explained that while the Service may protect areas outside of the geographic range occupied by an ESA-protected species as essential to the species’ conservation, it had instead asserted that this was occupied habitat for the fairy shrimp. Judge Kavanaugh found that a single observation of a species did not provide sufficient evidence that the area was occupied habitat. And while the Service was under no requirement to continue looking for the endangered shrimp, Judge Kavanaugh noted that the lack of such an obligation is not the same as an authorization to act without data to support its conclusions. 646 F.3d at 918. This opinion suggests that Judge Kavanaugh is likely to narrowly interpret the provisions of the ESA.

Similarly, Justice Kavanaugh’s position on Chevron deference may have wide ranging consequences for environmental statutes, including the ESA.

The most comprehensive Endangered Species Act (ESA) bill of this Congressional session made its debut on July 2, 2018 when Senator John Barrasso (R-Wyo.), Chairman of the Senate Environment and Public Works (EPW) Committee, released a discussion draft of a bill proposing sweeping revisions to the ESA.  The discussion draft is a culmination of activity that began February 15, 2017, when the EPW committee held an oversight hearing on modernization of the ESA. Following that hearing, Senator Barrasso worked closely with the Western Governors’ Association (WGA) in drafting the ...