Endangered Species Law & Policy

The U.S. Fish and Wildlife Service (Service) prevailed on March 19th in a suit brought by the Sierra Club challenging a decision by the Service to delay revision of the critical habitat designation for the leatherback sea turtle (Dermochelys coriacea).  The United States District Court for the District of Columbia ruled that the Service's decision was not judicially reviewable under either the Administrative Procedures Act (APA) or the Endangered Species Act (ESA). Sierra Club v. U.S. Fish and Wildlife Service, 2013 U.S. Dist. LEXIS 37349 (D. D.C. March 19, 2013 ...

On March 14, 2013, the State of California announced (pdf) that it has released the first 4 of 12 chapters of the Bay Delta Conservation Plan (BDCP).  California plans to release the next three chapters on March 27, and the remaining five chapters on April 22.  The BDCP website notes that the materials being released are preliminary and subject to change, and do not take the place of the public review draft, which will be released at a later date.  Preliminary draft versions of the BDCP have been released on several occasions; for example, a complete draft was released in February ...

On March 13, 2013, the U.S. Fish and Wildlife Service (Service) extended (pdf) the public comment period for two proposed rules relating to the Gunnison sage-grouse (Centrocercus minimus).  As we previously reported, the Service published a proposed rule to list the species as endangered under the Endangered Species Act (ESA) in January.  In conjunction with that proposed rule, the Service also proposed to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah.  The 60-day public comment period for these two proposed rules was ...

After an unusual eight day bench trial, the United States District Court for the Southern District of Texas held (pdf) State officials in Texas violated the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana).  In holding for plaintiff The Aransas Project, the court found that defendants’ actions, inactions, and refusal to act proximately caused unlawful take of at least 23 whooping cranes during the winter of 2008-09.  The court enjoined the State from granting new water permits affecting the Guadalupe or San Antonio Rivers and required the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the ESA.

In Conservation Congress v. U.S. Forest Service, No. CIV. 2:12-02416 (E.D. Cal. Feb. 26, 2013), the United States District Court for the Eastern District of California denied (pdf) a motion brought by the U.S. Forest Service and U.S. Fish and Wildlife Service to limit review of claims brought under the citizen suit provision of the Endangered Species Act (ESA) to the administrative record.  The court denied defendants' motion because it "would be premature to determine at this early stage of the proceedings" whether plaintiffs' claims should be strictly limited to ...

The California Fish & Game Commission (Commission) voted this week to designate the Clear Lake hitch (Lavinia exilicauda)—a fish found only in Clear Lake and its tributaries—as a candidate species under the California Endangered Species Act (CESA). This week’s vote triggered a one-year formal review period during which the status of the fish will be assessed.

The Clear Lake hitch population has declined dramatically due to a loss of spawning habitat in the tributaries feeding into Clear Lake. Other causes of the decline of the fish include migration barriers that block ...

On March 5, 2013, the United States Court of Appeals for the Ninth Circuit ordered Natural Resources Defense Council v. Salazar, 1:05-cv-01207, to be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. Environmental groups brought the action against the U.S. Bureau of Reclamation (Reclamation), asserting Reclamation violated section 7 of the Endangered Species Act (ESA) by renewing 41 water supply contracts without consulting with various Central Valley Project (CVP) water users.

In July 2012, a three-judge panel in the Ninth ...

On February 27, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed (pdf) the dismissal of a Fifth Amendment takings claim based on the finding that the claim was "not ripe."  The claim is unusual because it arose in the context of the federal Endangered Species Act (ESA).

Casitas Municipal Water District (Casitas) has a contract with the federal Bureau of Reclamation and a license with the State of California authorizing it to divert water for the Ventura River Project (Project).  The contract with the Bureau of Reclamation states that Casitas ...

On March 1, 2013, the great white shark (Carcharodon carcharias) received protection (pdf) under the California Endangered Species Act (CESA).  The protections prohibit anyone from hunting, pursuing, or otherwise harming the species.  Commercial fisheries that could incidentally take a shark in fishing nets, as well as scientists wishing to tag a shark for research, will have to obtain permits from the California Department of Fish and Wildlife.  As reported here, the protections are the result of the California Fish and Game Commission's decision to make the species a ...

The U.S. Fish and Wildlife Service (Service) recently proposed (pdf) to remove the island night lizard (Xantusia riversiana) from its current listing as threatened under the Endangered Species Act (ESA).  The proposed removal is based on successful recovery efforts led by the U.S. Navy and National Park Service, which have resulted in the achievement of nearly all of the objectives established in the recovery plan for the species.

Island night lizards are found only on the Channel Islands - San Clemente Island, San Nicolas Island, and Santa Barbara Island - off the ...