Endangered Species Law & Policy

Today, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA).  See Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’ 76 Fed. Reg. 76,987 (Dec. 9, 2011). 

Under the ...

The United States District Court for the Southern District of Texas issued a decision (pdf) denying cross motions for summary judgment in a case brought by a non-profit group against State officials in Texas alleging violation of the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana). Plaintiffs allege that Defendants, who are officials with the Texas Commission on Environmental Quality and the South Texas Watermaster, failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the ...

The House of Representatives Natural Resources Committee is scheduled to hold a hearing on December 6, 2011 regarding the Endangered Species Act (ESA). The hearing is expected to focus on how litigation involving the ESA is costing jobs, impacting the economy, and preventing species recovery.

According to Rep. Doc Hastings (R-Wash.), the committee’s chairman, the hearing will be the first of many that the Natural Resources Committee will hold to examine both the strengths and weaknesses of the ESA. Hastings has said that the law is failing to achieve its fundamental goal of ...

The United States District Court for the Northern District of California issued an order (pdf) denying a motion for preliminary relief filed by plaintiffs suing the City and County of San Francisco over the management of Sharp Park Golf Course, which San Francisco owns but which is located in the City of Pacifica in San Mateo County, California. At issue in the case is whether San Francisco’s management of the golf course violates the take prohibition of the Endangered Species Act (ESA). Plaintiffs sought an injunction that would substantially restrict activities necessary to ...

In a decision (pdf) issued on November 22, the United States Court of Appeals for the Ninth Circuit affirmed a lower court decision striking the decision of the Fish and Wildlife Service (Service) to delist a distinct population segment of grizzly bears (ursus arctos horribilis) near Yellowstone National Park and retaining protected status for the species.  The court held that the Service failed to articulate a rational connection between data in the record and the Service's determination that whitebark pine declines were not a threat to the Yellowstone grizzly.  However, the Ninth ...

On November 16, 2011, the United States Court of Appeals for the Ninth Circuit issued a ruling (PDF) affirming a lower court’s decision (PDF) that two U.S. Fish and Wildlife Service’s (FWS) biological opinions (BiOp) for a proposed 1500-acre mining project in the Cabinet Mountain Wilderness on the Kootenai National Forest met the legal standards set forth in the Endangered Species Act and Administrative Procedure Act. The Court upheld the BiOp’s conclusions that construction and operation of the mine would not adversely modify bull trout critical habitat or ...

As we previously reported, on October 17, 2011, the U.S. District Court for the District of Columbia held that the Fish & Wildlife Service (Service) violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) (Special Rule) without conducting an environmental assessment.  As we discussed here, the Special Rule sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has ...

The U.S. Fish and Wildlife Service has announced that its Endangered Species Bulletin will be available exclusively in an online-only format going forward.  The Bulletin will be updated bi-monthly and will include a single in-depth feature articles, additional supporting articles, and other content.  The website for the Bulletin provides access to an archive that includes past editions back to 2000.

The National Marine Fisheries Service (NMFS) recently reopened  the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi).  As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in ...

The United States District Court for the District of Maryland recently decided (pdf) cross motions for summary judgment in a challenge to a biological opinion (BiOp) and reasonable and prudent alternative (RPA) in favor of the National Marine Fisheries Service (NMFS).  In the BiOp and RPA, which NMFS developed at the request of the Environmental Protection Agency (EPA) and after consultation with that agency, NMFS evaluated the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids.  Plaintiffs argued that the BiOp and RPA were unlawful – in violation of the Administrative Procedure Act (APA) and Endangered Species Act (ESA) – in a number of respects.  But the court rejected each claim and consistently deferred to NMFS as the expert agency charged with implementation of the ESA.

Plaintiffs claimed that NMFS improperly employed and relied on two models.  NMFS utilized results from application of the models to predict pesticide levels in streams that support the listed salmonids.  With respect to the use of one of the models by NMFS, the court opined that there seems to be a reasonable difference of opinion regarding whether the model accurately predicts pesticide concentrations.  But the court stated that it is not within the purview of this Court to weigh the evidence supporting [ ] extremely divergent scientific opinions and decide which of them is correct.  It appears though that, when the court held for NMFS on this issue, it may have been influenced by its view that the ultimate outcome would not differ across a range of predicted pesticide levels.