Endangered Species Law & Policy

The U.S. Fish and Wildlife Service (Service) has issued a final rule (pdf) listing the Kentucky Glade Cress (Leavenworthia exigua var. laciniata) as threatened species under the Endangered Species Act (ESA). The Kentucky Glade Cress, a small, lilac-colored wildflower, is located in parts of Jefferson and Bullitt counties in Kentucky.  The primary threat to the species is the loss and degradation of its habitat, caused by development, roads, utilities, and conversion of its habitat to lawns. The final rule will become effective on June 5, 2014.

The Service also issued a proposed ...

On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service proposed two important new rules (50 CFR Part 402 and 50 CFR Part 424) implementing the critical habitat provisions of the Endangered Species Act (ESA).  The proposed rules expand the regulatory definition of critical habitat and adverse modification – key ESA terms governing federal agency actions on tens of millions of acres of public and private land throughout the nation.  The federal wildlife agencies also proposed a new policy governing the exclusion of areas from critical habitat ...

Yesterday, the House of Representatives approved the Open Book on Equal Access to Justice Act (H.R. 2919), which would amend existing law to require the Executive Branch to provide an annual report to Congress on the amount of fees and other expenses awarded to prevailing parties, other than the United States, in certain administrative proceedings and civil suits, including certain lawsuits under the Endangered Species Act and other environmental statutes.  The Act would require the report to account for all payments of fees and other expenses awarded made pursuant to a ...

In Souza v. California Department of Transportation, No. 13-cv-04407 (N.D. Cal. May 2, 2014), plaintiffs sought to enjoin a project proposed by the California Department of Transportation (Caltrans) to modify U.S. Route 199 and State Route 197 in Del Norte County, California, near the Smith River. Plaintiffs challenged the adequacy of Caltrans’ consultation with the National Marine Fisheries Service (Service) regarding the impacts of the project on the Southern Oregon Northern California Coast Evolutionary Significant Unit of the threatened coho salmon (SONCC coho). As ...

On May 2, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding concluding that, based on the best available scientific and commercial information, the endangered Lane Mountain milk-vetch (Astragalus jaegerianus), a plant found in a small portion of the central Mojave Desert in San Bernardino County, should not be reclassified as threatened under the Endangered Species Act.  The Service found that the "primary threats to Lane Mountain milk-vetch are habitat loss and disturbance from military training, OHV use, recreational mining ...

The U.S. Fish and Wildlife Service (Service) published a final rule (pdf) in the Federal Register listing the Sierra Nevada yellow-legged frog (Rana Sierrae) and the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus Canorus) as threatened.  The agency proposed listing the species on April 25, 2013, following a decade of litigation intiiated by the Center for Biological Diversity, as describe in the proposed rule.

Recent research based on mitochondrial DNA, morphological ...

The House Natural Resources Committee has scheduled a full Committee markup of four bills intended to bring additional transparency to the Endangered Species Act (ESA). The markup, which involves committee debates, amendments, and rewrites of the proposed legislation, is scheduled for this Wednesday, April 30, 2014. The Committee will be reviewing four ESA reform bills introduced last month. As we reported here, the bills would amend the ESA as follows:

H.R. 4315 (21st Century Endangered Species Transparency Act) – Introduced by Rep. Doc Hastings (R-Wash); the bill would ...

As reported by Kristi Pihl of the Tri-City Herald, the Columbia-Snake Irrigators Association has requested that the Governors of Washington, Oregon, and Idaho proceed through the "God Squad" process under the federal Endangered Species Act (ESA) to seek to exempt those who operate on the rivers from having to provide any further mitigation for the local salmon and steelhead populations. 

In the 1979 amendments to the ESA, Congress created the Endangered Species Act Committee (aka, the "God Squad"). The God Squad has the authority to exempt an agency action from the ...

In a unanimous decision, eleven active judges on the United States Court of Appeals for the Ninth Circuit held that the duty to consult under section 7(a)(2) of the Endangered Species Act (ESA) when a federal agency action may affect a listed species or designated critical habitat of such species applies to the decision of the Bureau of Reclamation (Bureau) to renew long-term contracts to provide water to non-Federal parties. The decision, which reversed prior decisions by a three-judge Ninth Circuit panel and federal district court, effectively requires the Bureau to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of contract renewals on the threatened delta smelt and to renegotiate the contracts following such consultation.

The decision has potentially far-reaching implications in California because it suggests that even those who hold long-term contracts with the United States for the provision of water or senior water rights under state law must comply with the Endangered Species Act.

 The Los Angeles Times reports that the California Fish and Game Commission (Commission) unanimously voted to postpone a decision on whether to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA). As we previously reported, the California Department of Fish and Wildlife recommended in February 2014 that the Commission not list the gray wolf under CESA, determining that the scientific evidence does not warrant listing the species at this time. The issue arose in 2011 when a single wolf, OR-7, was spotted in California for the first time.

The five-member ...

Earlier this week, the House Natural Resources Committee held a hearing to discuss Endangered Species Act (ESA) reform. The hearing focused on four bills that seek to require data and spending transparency under the ESA.

As previously reported, an ESA Congressional working group released a final report stating that the ESA is not working. The proposed bills are a result of that final report. Despite a general agreement that the 40-year old ESA should be updated, the hearing displayed the divide between Republicans and Democrats over how to do so.

One of the bills discussed at the ...

Last Thursday, a U.S. District Court for the Northern District of California held (pdf) that the incidental take requirements in section 7 of the Endangered Species Act (ESA) do not apply to listed plant species.

In Center for Biological Diversity v. Bureau of Land Management, No. C 03-02509 SI (N.D. Cal. Apr.3, 2014), environmental group plaintiffs challenged a biological opinion issued by the U.S. Fish and Wildlife Service (Service) to the Bureau of Land Management (BLM). BLM had engaged in section 7 consultation with the Service regarding BLM’s management of the Imperial ...

This week, the United States District Court for the District of Columbia upheld (pdf) two settlement agreements – one between the U.S. Fish and Wildlife Service (Service) and WildEarth Guardians, and the other between the Service and the Center for Biological Diversity – that collectively require the Service to determine whether to list 251 species under the Endangered Species Act (ESA) in accordance with certain deadlines. See National Association of Home Builders v. U.S. Fish and Wildlife Service, No. 12-2013 (Mar. 31, 2014).  Plaintiffs, who included organizations ...

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or ...

 Yesterday, the U.S. Fish and Wildlife Service (Service) announced (pdf) the final listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The Service identified drought and habitat fragmentation as threats to the species, and concluded the lesser prairie-chicken is likely to become endangered in the foreseeable future.

In connection with the final listing decision, the Service also announced a final special rule under section 4(d) of the ESA that will retain some degree of state responsibility for managing the ...

On March 27, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding and proposed rule to reclassify the arroyo toad (Anaxyrus californicus), a species that is believed to exist exclusively in California, from endangered to threatened under the Endangered Species Act.  The 12-month finding and proposed rule were initiated by a petition submitted in 2011 by The Pacific Legal Foundation requesting that the Service delist the Inyo California towhee and reclassify from endangered to threatened the arroyo toad, Indian Knob mountainbalm, Lane Mountain ...

On an issue of first impression, a California court has created a judicial exception to the take prohibition in the state’s fully protected species statutes.  On March 20, 2014, the California Court of Appeal held that the live trapping and translocation of a fully protected species does not constitute prohibited take of the species.  Center for Biological Diversity v. California Dept. of Fish and Wildlife, 2014 Cal.App. LEXIS 256 (March 20, 2014) (pdf).  The decision addresses a common conundrum in California:  whether actions to protect a species authorized by the state and federal ...

Last Thursday, several prominent conservation biologists in Australia called on the Australian government to allow certain endangered animals to become extinct in order to focus conservation efforts on reviving more vital species. The biologists argue that current Australian policies, such as mandatory recovery plans for all endangered species, may have consequences if they are not amended to allow for the "ecological triage of less-vital species. David Bowman, a professor at the University of Tasmania, supported the proposal to focus on the most vital species, noting that ...

Republican Congressman Chris Stewart (UT) recently introduced a bill (pdf) that would amend the Endangered Species Act (ESA) to require federal wildlife agencies to include the number of species found on state, tribal, and private lands in its official count when determining whether a species should be protected under the ESA.  Currently, the ESA does not include a specific requirement regarding how to account for a species’ population.  Rather, federal agencies are required to use the best scientific and commercial data available when determining whether a species is ...

Today, the United States Court of Appeals for the Ninth Circuit issued a decision (pdf) relating to the 2008 biological opinion (BiOp) issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. The long-awaited decision (oral argument was held on September 10, 2012) reversed in part and affirmed in part the district court’s judgment invalidating the BiOp and remanding it to the Service. The opinion is authored by Judge Bybee, with partial concurrence and partial dissent by both Judge ...

In an article forthcoming in the Journal of Environmental Studies and Sciences, Dr. Dennis Murphy and I examine a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to amend the existing regulations that implement the interagency consultation process set out in Section 7 of the Endangered Species Act by codifying their pre-existing practice of using surrogates to express the amount or extent of incidental take of listed species.  We describe the proposed rule, place the use of surrogates for conservation planning in historical context, and ...

The U.S. Fish and Wildlife Service (Service) has announced the availability of a revised recovery plan for the pallid sturgeon (Scaphirhynchus albus), a species that is found in the Missouri and Mississippi River basins, has been described as having a "unique dinosaur-like appearance," and has been listed as endangered since 1990.  As summarized by the Service, the revised recovery plan updates the "current understanding of the species life history requirements, identifies probable threats that were not originally recognized, includes revised recovery ...

On February 26, the Alaska Department of Fish and Game petitioned (pdf) the National Marine Fisheries Service (NMFS) to remove the Central North Pacific subpopulation of humpback whales from the federal list of endangered or threatened species. In a press release, the director of Alaska’s Division of Wildlife Conservation declared the species a prime example of a recovered species that should be delisted from the Endangered Species Act (ESA) because the threat of extinction for this subpopulation is gone.

The entire North Pacific humpback whale species (Megaptera ...

 The U.S. Fish and Wildlife Service (Service) recently issued (pdf) a proposed rule to remove Eureka Valley evening-primrose (Oenothera avita ssp. eurekensis) and Eureka dune grass (Swallenia alexandrae) from the federal list of endangered species. The Service’s proposed rule follows its 12-month finding on the Pacific Legal Foundation’s petition to delist the species.

Eureka Valley evening-primrose and Eureka dune grass are endemic to three dune systems in the Eureka Valley, located in Inyo County, California. Eureka Valley is managed by the National Park Service (Park ...

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the Georgetown salamander (Eurycea naufragia) and the Salado salamander (Eureycea chisholmensis) as threatened under the Endangered Species Act (ESA). The Service also issued a proposed special rule for the Georgetown salamander under section 4(d) of the ESA, which authorizes the take of protected species in certain instances.

The primary threat to the species is habitat degradation due to declining water quality and disturbance of surface spring sites. According to the Service, urban development ...

In an article (pdf) forthcoming in the Journal of Environmental Studies and Sciences, Dennis Murphy and I explore the potential for adaptive management through structured decision-making to improve efforts to conserve imperiled species.  We note the many impediments to effective management, which include frequent default to best professional judgment.  We then explore the potential for adaptive management to overcome these impediments if it is implemented as a step-wise, structured approach incorporating scientific information into decision-making.  We go on to identify  ...

Today, the National Marine Fisheries Service (NMFS) announced (pdf) a 90-day finding on a petition to list the Hector’s dolphin (Cephalorhynchus hectori), the Baltic Sea subpopulation of harbor porpoise (Phocoena phocoena), the eastern Taiwan Strait subpopulation of the Indo-Pacific humpback dolphin (Sousa chinensis), and the Fiordland subpopulation of the bottlenose dolphin (Tursiops truncatus) under the Endangered Species Act. The announcement came as a result of NMFS' determination that the petition presented substantial scientific and commercial information ...

The U.S. Fish and Wildlife Service has announced a final rule listing the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eureycea chisholmensis) as threatened species under the Endangered Species Act.  The final rule is scheduled to be published in the Federal Register on Monday.  According to an article by Claire Osborn of the Austin American-Statesman, "Williamson County officials have said the area would lose millions of dollars in development if the salamanders are listed."

In August 2008, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to delist the Hawaiian hawk (Buteo solitarius), also referred to as the io, from the federal list of endangered or threatened species.  The proposed rule states that the proposed action is "based on a thorough review of the best available scientific data, which indicates that range-wide population estimates have been stable for at least 20 years, and the species has recovered and is not likely to become an endangered species in the foreseeable future throughout all or a significant portion of ...

A report issued by a group of independent scientists claims that the U.S. Fish and Wildlife Service (Service) relied on inadequate scientific evidence to support its proposal to delist the gray wolf (Canis lupus) under the Endangered Species Act (ESA). As we previously reported, the Service issued a proposed rule to delist the species last June. The Service then commissioned U.C. Santa Barbara’s National Center for Ecological Analysis and Synthesis (NCEAS) to conduct an independent review of the science behind the proposed rule. NCEAS issued its report last month.

According ...

Members of the Endangered Species Act (ESA) Congressional Working Group recently released a final report (pdf) asserting that the ESA is not working and providing four recommendations for improvement.

The report is the result of an eight-month effort led by Republican Representatives Doc Hastings (WA) and Cynthia Lummis (WY) to examine the ESA. The group received input from hundreds of individuals on how the ESA is currently being implemented, and whether it could be updated to be more effective. The report concludes that [a]fter more than 40 years, sensible, targeted reforms ...

The U.S. Fish and Wildlife Service (Service) announced (pdf) that it will prepare an Environmental Impact Statement (EIS) on a proposed application for an Incidental Take Permit (ITP), including a Habitat Conservation Plan (HCP), under the Endangered Species Act (ESA). The application concerns the lesser prairie-chicken (Tympanuchus pallidicintus), which the Service has proposed to be listed as threatened under the ESA.

A group of stakeholders representing energy, agricultural, and conservation industries and organizations (Stakeholders) submitted the application. If ...

Yesterday, the California Department of Fish and Wildlife (DFW) recommended that the California Fish and Game Commission not list the gray wolf as endangered under the California Endangered Species Act. Following a yearlong review, DFW determined that the scientific evidence does not warrant listing the species at this time. Instead, DFW recommended designating the gray wolf as a species of special concern – which affords the gray wolf some protection, including prohibiting the killing of the species – with a recommendation to consider placing the gray wolf on the ...

As recently reported in The Oregonian, the U.S. Fish and Wildlife Service (Service) has declared the Oregon chub (Oregonichthys crameri) recovered, and will remove the species from the list of federally threatened and endangered species.  According to the report, this is the first fish ever taken off the endangered species list.  In a previous report, the Service stated that the fish's improved status was attributable to the efforts of the Oregon Chub Working Group, and "successful introduction of Oregon chub into new locations within their historical range and the discovery ...

On January 29, the U.S. Fish and Wildlife Service (Service) announced (pdf) the reopening of the public comment period for a special rule originally proposed on May 6, 2013 that would allow for limited take of the lesser prairie-chicken (Tympanuchus pallidicinctus). As we previously reported, the proposed special rule was revised on December 11, 2013 to include a five-state conservation plan for the species. The proposed special rule allows for take of the lesser prairie-chicken as long as such take is incidental to activities conducted by an individual enrolled in the ...

The National Marine Fisheries Service (Service) recently announced (pdf) a proposed amendment to the regulatory language of the Endangered Species Act (ESA) listing for the Southern Resident killer whale Distinct Population Segment (DPS).  The amendment would remove the language excluding captive members of the population from ESA protection. The Service’s action comes in response to a petition submitted by the People for the Ethical Treatment of Animals to include Lolita as a protected member of the DPS. Lolita, the sole captive member of the Southern Resident killer whale ...

The U.S. Fish and Wildlife Service (Service) is seeking proposals (pdf) from states or territories for federal grants from the Cooperative Endangered Species Conservation Fund (Fund) for voluntary conservation projects that benefit candidate, proposed, or listed species.

The Fund is authorized under Section 6 of the Endangered Species Act (ESA) and provides four different grant programs: 1) Conservation Grants, which help implement conservation projects; 2) Recovery Land Acquisition Grants, which fund the acquisition of habitat in support of approved or draft species ...

On January 17, 2014, President Obama signed into law the $1.1 trillion dollar Omnibus Spending Bill, thereby funding the federal government through October 1.  Included in the Bill was a provision directing the Secretary of the Interior to reinstate an exemption that exempted the scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope (Addax nasomaculatus) from the Endangered Species Act.  The rider was introduced by Representative John Carter (R-Tex).  As we recently reported, proponents of the rider believe that exempting the species will ...

In Native Fish Society v. National Marine Fisheries Service, No. 3:12-cv-00431, environmental groups challenged the operation of the Sandy Hatchery along the Columbia River in Portland, Oregon. Among other things, plaintiffs argued that operation of the hatchery violates the Endangered Species Act (ESA) by causing take of listed fish species, including the Lower Columbia River Chinook, Lower Columbia River coho, Columbia River chum, and Lower Columbia River steelhead. Plaintiffs alleged the hatchery causes take due to competition from hatchery fish, introduction of ...

The U.S. Senate is set to consider exempting three antelope species from protection under the Endangered Species Act (ESA). The scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope (Addax nasomaculatus) - affectionately known as the Three Amigos - were exempted from 2005 until 2012, when the U.S. Fish and Wildlife Service relisted the species as endangered.

On January 15, the U.S. House of Representatives passed a $1.1 trillion spending bill (pdf) that would fund the federal government through the remainder of fiscal year 2014. Included in ...

The U.S. Fish and Wildlife Service (Service) recently released (pdf) its draft economic analysis (DEA) for its proposal to designate critical habitat for the Sierra Nevada yellow-legged frog (Rana sierrae), the northern distinct population segment of the mountain yellow-legged frog (Rana muscosa), and the Yosemite toad (Anaxyrus canorus). The proposed critical habitat designation encompasses approximately 1,831,820 acres of habitat in California.

The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical ...

As we previously reported, the U.S. Fish and Wildlife Service (Service) has proposed to list the Gunnison sage-grouse (Centrocercus minimus) and the Greater sage-grouse (Centrocercus urophasianus) as endangered and threatened species under the Endangered Species Act, and to designate millions of acres of land as critical habitat for the species.  (See our prior posts on January 23, 2013 and October 29, 2013.)  Because of the controversy surrounding the proposed listings and designations, the Service has extended the comment period on the proposals to ensure that the public has ...

The U.S. Fish and Wildlife Service (Service) recently affirmed (pdf) its decision to list the White Bluffs bladderpod (Physaria douglasii subsp. tuplashensis) as threatened under the Endangered Species Act (ESA).  The Service also revised its designation of critical habitat for the plant species to exclude certain private and state lands in Franklin County, Washington.

The Service previously published a final rule to list the species (pdf) and designate critical habitat (pdf) on April 23, 2013.  However, the Service delayed the effective date of these rules in order to accept ...

December 28, 2013 marked the 40th birthday of the Endangered Species Act (ESA), which was signed into law by President Richard Nixon on December 28, 1973. According to Sally Jewell, the Secretary of the Interior: This landmark law has helped to stop the slide toward extinction of hundreds of species. Along the way, we have strengthened partnerships among states, tribes, local communities, private landowners and other stakeholders to find conservation solutions that work for both listed species and economic development. Supporters of the Act credit it for bringing several ...

 The U.S. Fish and Wildlife Service (Service) recently announced (pdf) the completion of its status review (pdf) of Coleman’s coralroot (Hexalectris colemanii), a species of orchid found in southeastern Arizona and southwestern New Mexico. The Service determined that listing the orchid as threatened or endangered under the Endangered Species Act (ESA) is not warranted at this time.

The Center for Biological Diversity (CBD) petitioned the Service to protect Coleman’s coralroot under the ESA in September 2010. Originally thought to be part of the Chisos coralroot, the ...

Last week, the Interagency Grizzly Bear Committee, a panel consisting of federal, state, local, and tribal representatives, recommended that the U.S. Fish and Wildlife Service (Service) remove the grizzly bear (Ursus arctos horribilis) from the list of threatened and endangered species under the Endangered Species Act (ESA). If the Service agrees, it will initiate the rule-making process to delist the species. The Service is expected to make a decision next month.

The Yellowstone grizzly bear population is found in Montana, Idaho and Wyoming. When initially listed under the ...

Today, the U.S. Fish and Wildlife Service ("Service") announced (pdf) the extension of the public comment period on the proposals to list and designate critical habitat for the the Bi-State Distinct Population Segment (DPS) of greater sage-grouse (Centrocercus urophasianus) along the California-Nevada border under the Endangered Species Act, and also announced the designation of approximately 230 acres in San Francisco County as critical habitat for the endangered Franciscan manzanita (Arctostaphylos franciscana).  The Service also released the final ...

Last week, the House Natural Resources Committee held its fifth oversight hearing on the Endangered Species Act (ESA). Entitled ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies, the hearing included over a dozen Republican witnesses, with only three Democrats.

At the hearing, critics of the ESA urged reform to ensure that the statute’s focus is on recovering species and science, rather than litigation. Referencing the landmark 2011 settlement between Center for Biological Diversity (CBD) and the ...

On December 11, 2013, the U.S. Fish and Wildlife Service (Service) issued a revised special rule (pdf) that would provide for a limited exception to the protections currently proposed for the lesser prairie-chicken (Tympanuchus pallidicinctus) under the Endangered Species Act (ESA). The revised special rule incorporates a new five-state rangewide conservation plan for the species, and allows take of lesser prairie-chickens so long as such take is incidental to activities conducted by an individual enrolled in the rangewide conservation plan. Previous versions of the special ...

In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293 (pdf), plaintiffs sued the Environmental Protection Agency (EPA), alleging that EPA’s oversight of pesticide ingredients, including trifluralin, triggered a duty to consult with the National Marine Fisheries Service about trifluralin’s possible effects on species listed under the Endangered Species Act (ESA). EPA and defendant intervenors representing the farming industry filed Rule 12(e) motions, requesting more definite statements, and alleging the complaint was so vague ...