Endangered Species Law & Policy

The National Marine Fisheries Service (NMFS) recently issued a proposed rule (pdf) designating critical habitat for the Northwest Atlantic Ocean loggerhead sea turtle Distinct Population Segment (DPS) (Caretta caretta) within the Atlantic Ocean and the Gulf of Mexico. The 36 marine areas proposed for designation as critical habitat contain one or a combination of nearshore reproductive habitat, winter habitat, breeding areas, and migratory corridors.

The loggerhead sea turtle was listed worldwide as a threatened species under the Endangered Species Act (ESA) on July 28 ...

Yesterday, the House Committee on Natural Resources held a second hearing regarding implementation and impacts of the Endangered Species Act.  Today's hearing was titled: Transparency and Sound Science Gone Extinct?: The impacts of the Obama Administration's Closed-Door Settlement on Endangered Species and People.  In a summary description issued before the hearing, the Committee stated that it anticipated the hearing would "highlight how the lack of data transparency is leading to increased numbers of species being listed and critical habitat being ...

On July 23, 2013, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a lower court decision upholding restrictions on commercial fishing in Alaska to protect the western Distinct Population Segment (DPS) of the Steller sea lion (Eumetopias jubatus), which is listed under the Endangered Species Act (ESA). The measures, imposed in 2010 by the National Marine Fisheries Service (NMFS), restrict the mackerel and cod fisheries in the western Aleutian Islands. NMFS determined such restrictions were necessary to ensure an adequate supply of prey for the western DPS of the ...

On July 23, 2013, the U.S. Fish and Wildlife Service (Service) released a final plan to shoot approximately 3,600 barred owls (Strix varia) in the Pacific Northwest in order protect the northern spotted owl (Strix occidentalis caurina), which is listed as threatened under the Endangered Species Act.

The plan provides that the Service will use shotguns to remove barred owls from four test areas in Washington, Oregon, and California. According to the Service, the barred owl is a threat to the northern spotted owl because it outcompetes the smaller and less aggressive spotted owl for ...

On June 11, 2013, the U.S. Army Corps of Engineers issued a guidance memo (pdf) regarding its obligations under section 7 of the Endangered Species Act.  The memo focuses on the Corps’ consultation obligations under section 7(a)(2).  Notably, the Corps makes no reference to the Corps’ obligation under section 7(a)(1) to utilize [its] authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.

Section 7(a)(2) requires a federal action agency such as the ...

On July 17, 2013, the United States District Court for the District of Oregon, after finding that the plaintiffs could not establish a likelihood of success on the merits, denied (pdf) a motion to enjoin a 28,545 acre vegetation management project that involved the commercial and non-commercial harvest of over 20,000 acres of forest (the "Project").

In 2011, the U.S. Forest Service ("Forest Service") issued a biological assessment concluding that the Project may affect, but was not likely to adversely affect, the threatened bull trout (Salvelinus confluentus) or its ...

The U.S. Fish and Wildlife Service (Service) announced this week that it will extend for six months a final decision on whether to list the Gunnison sage-grouse (Centrocercus minimus) under the Endangered Species Act (ESA), and whether to designate 1.7 million acres in Colorado and Utah as critical habitat for the species.

In January of this year, the Service proposed listing the Gunnison sage-grouse as an endangered species and designating critical habitat for it.  As we previously reported, the Service subsequently extended the comment period from March 12 to April 2, 2013.  The ...

On June 24, 2013, the U.S. District Court for the District of Montana held (pdf) that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to consult on the impacts of a vegetation management project on Canada lynx (Lynx canadensis) in the Helena National Forest.

Plaintiffs argued that the Service violated section 7 of the ESA by failing to consult with the U.S. Fish and Wildlife Service regarding the impacts of the proposed project on grizzly bears (Ursus arctos horribilis) and Canada lynx. The Service argued that ...

Late last month, the United States District Court for the District of Idaho denied preliminary injunctive relief in an Endangered Species Act case against the Fish and Wildlife Service (FWS) and Forest Service, even though it found that "the required rational connection was not made in the [section] 7(d) determination," because declarations submitted to the court after-the-fact provided a rational connection.  See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 4:13-cv-176 (June 26, 2013) (pdf). 

In 2010, FWS issued a biological opinion and incidental ...

On July 1, 2013, the United States District Court for the Northern District of California issued an order (pdf) granting, in part, Plaintiffs’ motion for attorneys fees in Wild Equity Institute v. City and County of San Francisco, N.D. Cal. Case No. C 11-958. In the order, the court awarded plaintiffs just 25 percent of the fees requested. The court had previously dismissed the case as moot, which we reported here.

Plaintiffs initiated the lawsuit in an effort to require the City to obtain an incidental take permit under section 10 of the Endangered Species Act (ESA) for the operation of ...

The U.S. Fish and Wildlife Service (Service) designated 2,485 acres in Kern County and Kings County in California as critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus).  The Buena Vista Lake shrew is a small, insect-eating mammal native to the southern San Joaquin Valley.

In 2005, the Service issued a final rule designating just 84 acres as critical habitat.  That rule was challenged, and the Service settled the lawsuit and initiated a new rulemaking.  Pursuant to that rulemaking process, in 2012 the Service issued a proposed rule designating 5,182 acres as ...

Today, the National Marine Fisheries Service (NMFS) completed its status review of the northeastern Pacific population of white shark (Carcharodon carcharias) and concluded (pdf) that listing the species under the Endangered Species Act is not warranted. According to Heidi Dewar, a fisheries research biologist at NMFS, the agency felt that there were more than 200 mature females alone, an indication of a total population of at least 3,000." NMFS determined that the population is neither in danger of extinction throughout all or a significant portion of its range nor likely to ...

 The U.S. Fish and Wildlife Service (Service) recently published a proposed rule (pdf) to list the Kentucky glade cress (Leavenworthia exigua var. laciniata) as threatened under the Endangered Species Act (ESA). The Service also proposed (pdf) designating critical habitat for the species.

The Service previously identified the Kentucky glade cress as a candidate species on November 9, 2009. However, it was designated as a Listing Priority Number (LPN) 3. LPNs are assigned based on the immediacy of the threat to the species, as well as taxonomic status. As an LPN 3, Kentucky glade ...

On June 13, 2013, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to delist the gray wolf (Canis lupus) under the Endangered Species Act (ESA) throughout the United States and Mexico. The proposed rule also proposes to maintain protection for the Mexican gray wolf (Canis lupus baileyi) in the Southwest by listing it as endangered under the ESA. Presently, the gray wolf is listed in 42 states, including California. 

Previously, the Service determined (pdf) that the southwestern population of the gray wolf – known as the Mexican gray wolf – may warrant a ...

On June 5, 2013, the U.S. Fish and Wildlife Service (Service) denied (pdf) two petitions to remove captive populations of the scimitar-horned oryx (Oryx dammah), dama gazelle (Gazella dama), and addax (Addax nasomaculatus) from the List of Endangered and Threatened Wildlife under the Endangered Species Act (ESA). In denying the petitions, the Service found it did not have the discretion to differentiate the listing status of animals in captivity from those in the wild.

The petitions, brought by Safari Club International and the Exotic Wildlife Association, sought to delist only ...

In a published opinion (pdf) affirming the denial of preliminary injunctive relief, the U.S. Court of Appeals for the Ninth Circuit held that "there is no statutory mandate to consider cumulative effects during informal consultation."  Conservation Congress v. U.S. Forest Serv., No. 12-16452 (June 13, 2012).

In order to address issues in the Shasta-Trinity National Forest, the U.S. Forest Service proposed the Mudflow Vegetation Management Project (Project).  The Project included a variety of activities, including thinning, sanitation, and regeneration.  Because the ...

The Trinity River Hatchery, which is operated by the California Department of Fish and Wildlife and funded by the U.S. Bureau of Reclamation, has a production capacity of approximately 40 million salmonid eggs.  Operations at the Hatchery are intended to mitigate for lost salmonid habitat due to the construction and operation of various water projects.  However, a recent lawsuit filed by the Environmental Protection Information Center alleges that instead of mitigating for impacts to endangered and threatened salmon and steelhead, the Hatchery is "taking" the protected species ...

Today, the House Natural Resources Committee is holding a full committee oversight hearing on species conservation efforts undertaken at on-the-ground-levels in an effort to compare those efforts with the effectiveness of Endangered Species Act (ESA) lawsuits. The hearing, entitled Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices, is the first in a series of hearings planned by the House to review the effectiveness of conservation efforts under the ESA.

Natural Resources Committee ...

On May 10th, the U.S. Fish and Wildlife Service (Service) announced that it had approved the Tehachapi Uplands Multiple Species Habitat Conservation Plan (Plan), which will provide protections for 25 species of plants and animals, while permitting limited development and other land use activities on designated areas within Tejon Ranch. Founded in 1843, Tejon Ranch is the largest contiguous expanse of private land in California. 

Many years in the making, the Plan will protect wildlife habitat and enhance species conservation on over 140,000 acres. The Plan provides ...

On May 28, 2013, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing 35 plants and three tree snails found on the Hawaiian islands of Molokai, Lanai, Maui, and Kahoolawe as endangered under the Endangered Species Act (ESA). The plant species include a variety of flowers, shrubs, and trees from coastal, lowland, subalpine, and cliff environments. The animal species include two Lanai tree snails (Partulina semicarinata and Partulina variabilis) and the Newcomb’s tree snail (Newcombia cumingi). The Service proposed listing the species in July 2012.

On March 29, 2013, after more than 11 years of litigation, the United States District Court for the District of Columbia held that a defendant, as the prevailing party, was entitled to attorneys' fees under the Endangered Species Act's fee shifting provision.  See Animal Welfare Institute v. Feld Entertainment, Inc., No. 03-2006 (D.D.C. Mar. 29, 2013) (pdf).

The fee provision states, in relevant part, "in issuing any final order in any suit brought" under the citizen suit provision of the Endangered Species Act, a court, in its discretion, "may award costs of ...

On May 15, 2013, the U.S. Fish and Wildlife Service (Service) removed (pdf) the Magazine Mountain shagreen (Inflectarius magazinensis) from the Federal List of Endangered and Threatened Wildlife. The Service determined that the threats to the species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of threatened or endangered under the Endangered Species Act (ESA).

The Magazine Mountain shagreen is a medium-sized, dusky brown or sand-colored snail found on Mount Magazine in western Arkansas. The snail was first listed ...

House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY).  The ESA Working Group will include a total of 13 republican members from a broad geographic range.  It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people ...

The State of Idaho enacted a law (pdf) this spring asserting that the State has primacy over the management of fish and wildlife. The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho. The law plainly is intended to ...

The Environmental Protection Agency (EPA) is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As part of this process, the EPA must ensure that the use of the pesticide will not cause any unreasonable adverse effects on the environment, including species protected under the Endangered Species Act (ESA) and designated critical habitat for such species. Often, in order to comply with the ESA, the EPA must consult with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to ...

On May 6, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) a limited exception to the Endangered Species Act (ESA) protections currently being considered for the lesser prairie-chicken (Tympanuchus pallidicinctus). The special rule is proposed pursuant to section 4(d) of the ESA, and would allow take of lesser prairie-chickens as long as such take is incidental to activities performed under a conservation plan that the Service has determined will provide a net benefit to the species.

The lesser prairie chicken is a small, grayish-brown grouse that inhabits ...

In Klamath Siskyou Wildlands Center v. MacWhorter, 1:12-cv-1900 (pdf), the United States District Court for the District of Oregon granted a motion to dismiss plaintiffs’ suit alleging that the U.S. Forest Service (USFS) violated the Endangered Species Act (ESA) by allowing suction dredge placer mining in the Rogue River-Siskyou National Forest without consulting with federal wildlife agencies about potential effects on coho salmon (Oncorhynchus kisutch) and coho salmon critical habitat.  In dismissing the case, the court held that it lacked subject matter jurisdiction ...

On April 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Sierra Nevada yellow-legged frog (Rana sierrae) as endangered, the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus canorus) as threatened under the Endangered Species Act (ESA).

According to the Service, populations of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are declining due to habitat degradation and fragmentation ...

The southwestern United States faces a host of challenges as a result of climate change including strained water resources, greater prevalence of tree-killing pests, and potentially significant alterations of agricultural infrastructure. A hotter future is projected for the Southwest—a region stretching from the California coast to the plains of eastern Colorado and New Mexico—and future heat and changes in precipitation will present challenges for managing natural resources, water, infrastructure, and threats to human health. Climate change is already ...

In Center for Biological Diversity v. Environmental Protection Agency, the United States District Court for the Northern District of California dismissed with leave to amend (pdf) a suit alleging that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service on the effects of 382 registered pesticides on endangered and threatened species.

The court dismissed the case, holding that plaintiffs failed to allege specific facts ...

On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade.  See Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 2013) (pdf).  In doing so, the Ninth Circuit held that the district court abused its discretion when it entered the consent decree because it bypassed statutorily mandated public-participation procedures.

The Northwest Forest Plan applies to approximately 24.5 million acres of federal land ...

The National Marine Fisheries Service (NMFS) recently proposed merging its Southwest and Northwest administrative regions, which would result in a savings of $3 million annually in management costs. NMFS is a component of the Department of Commerce, and is responsible for administering the Endangered Species Act as it applies to marine species and their habitats.  Currently, the NMFS Southwest region manages California, and the Northwest region covers Washington, Oregon, and Idaho. The Obama administration proposed the merger to improve coordination in areas where there ...

In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat designation for the Washington, Oregon and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus).

The U.S. Fish and Wildlife Service (Service) listed the tri-state population of the marbled murrelet under the Endangered Species Act (ESA) in 1992, finding the population constituted a distinct population segment (DPS) under the ...

The Palila (Loxioides bailleui) is a small bird native to Hawaii that was listed as endangered in 1967.  In 1998, the U.S. District Court for the District of Hawaii, pursuant to a stipulation submitted by the parties, issued an order requiring the State of Hawaii to conduct semi-annual  "aerial sightings" for ungulates (e.g., pigs, deer, sheep, goats, cattle) in the Palila's critical habitat area.  Further, if any ungulates are sighted, the order requires the State to "commence aerial shooting" of the ungulates. 

In 2012, the County of Hawaii, who was not a party to the ...

The United States Fish and Wildlife Service (Service) has announced (pdf) that it will conduct a full status review to determine whether protection under the Endangered Species Act (ESA) is warranted for two populations of the black-backed woodpecker (Picoides articus).

The Service's announcement is in response to a petition filed by environmental groups requesting two populations of the species, the Cascades-Sierra Nevada population in California, Oregon, and Washington, and the Black Hills population in South Dakota and Wyoming, be listed as endangered or ...

On April 9, 2013, the United States District Court for the Eastern District of California ruled (pdf) on a motion (pdf) by the United States and the State of California to extend the period of time to issue new biological opinions regarding the effects of continued operation of the Central Valley Project and State Water Project on a number of fish species listed as threatened or endangered under the federal Endangered Species Act.  The U.S. and California sought a three year extension of the time to issue biological opinions that were previously held to be unlawful.  The court granted a ...

On March 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to designate critical habitat for the Northwest Atlantic Ocean Distinct Population Segment of the loggerhead sea turtle (Caretta caretta) under the Endangered Species Act (ESA).  The proposed critical habitat includes almost 740 miles of coastline in North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi.  Photo by Strobilomyces at Océanopolis, Brest, France on 17th April 2006.

The loggerhead sea turtle includes nine distinct population segments (DPS ...

On March 21, 2013, Representatives Bill Flores (R-TX), John Carter (R-TX), K. Michael Conaway (R-TX), Mac Thornberry (R-TX), and Steve Pearce (R-NM) introduced a bill (pdf) to curtail allegedly excessive Endangered Species Act (ESA) lawsuits brought by environmental groups. The bill would prohibit courts from approving ESA settlements, unless states and counties that would be affected by the settlements have also given their approval. Also aimed at limiting the amount the U.S. Fish and Wildlife Service (Service) can spend on ESA lawsuits, the bill would prevent litigants from ...

The United States Court of Appeals for the Fifth Circuit stayed (pdf) an injunction issued by the United States District Court for the Southern District of Texas requiring 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 Endangered Species Act (ESA).  We reported on the lower court decision that State officials in Texas violated the ESA's prohibition on take of the federally listed whooping crane (Grus americana), here.  At the same time that the court stayed the injunction pending the outcome ...

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 ...

In a major victory for advocates of regulatory action to address climate change, the Court of Appeals for the District of Columbia Circuit rejected challenges to the listing of the polar bear as a threatened species.  In Re:  Polar Bear Endangered Species Listing and Section 4(d) Rule Litigation (D.C. Cir. No. 11-5219, March 1, 2013).  The court held that the decision to list the polar bear based on predicted reductions in the sea ice habitat of the polar bear as a result of climate change is reasonable and adequately supported by the record.
The polar bear listing is the first and most high ...