Endangered Species Law & Policy

Yesterday, a Republican Senator from Texas, John Cornyn, introduced a bill (pdf) that would prohibit the U.S. Fish and Wildlife Service from settling environmental lawsuits without first publishing the complaint "in a readily accessible manner, including electronically," and allowing "affected parties" an opportunity to intervene.  The bill further provides that the filing of any motion to dismiss or for entry of a consent decree based on a settlement agreement shall be prohibited until after affected parties have had a "reasonable opportunity" to intervene.  Should a ...

In a unanimous panel decision, the United States Court of Appeals for the Fourth Circuit held (pdf) that a biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of three pesticides on certain salmonids was not the product of reasoned decision-making.  The Fourth Circuit refused to silently rubber stamp an agency decision where NMFS failed to provide a satisfactory explanation for key aspects of that decision.  Further, the court refused to allow NMFS to offer post hoc rationalizations for its decision in the form of an expert affidavit and ...

On February 20, 2013, the U.S. Fish and Wildlife Service (Service) issued a final special rule (pdf) to manage the polar bear (Ursus maritimus), which is listed as threatened under the Endangered Species Act (ESA). The rule effectively maintains the management and conservation framework that has been in effect for the polar bear since it was first listed under the ESA in 2008.

The rule states that activities outside the polar bear’s habitat are not subject to ESA incidental take prohibitions. According to the Service, the rule avoids redundant regulation under the ESA by adopting ...

The U.S. Fish and Wildlife Service (FWS) designated (pdf) approximately 9,600 acres as critical habitat for the endangered Coachella Valley milk vetch (Astragalus lentifinosus var. coachellae). The critical habitat designation covers four areas within the greater Coachella Valley area near Palm Springs, California.

As a result of the designation, federal agencies must consult with FWS under the Endangered Species Act regarding the impacts of federal actions on the plant species within the designated area. The ruling does not directly affect private land ownership.

On February 6, 2013, the California Fish and Game Commission (Commission) voted to make the great white shark (Carcharodon carcharias) a candidate for protection under the California Endangered Species Act (CESA).  The Commission determined that listing the species as threatened or endangered under CESA may be warranted, and initiated a one-year comprehensive review to evaluate the status of the species.  Based on this review, the Commission will make a final decision next year regarding whether to list the species.  The species will receive protection under CESA while the ...

In Sierra Club v. Kenna, 2013 U.S. Dist. LEXIS 4743, *1 (January 11, 2013), the United States District Court for the Eastern District of California upheld (pdf) the Bureau of Land Management’s (BLM) grant of right-of-way over federal land, providing a wind energy project - located entirely on private land - access to a state road and other essential infrastructure. The plaintiffs challenged BLM’s action on the grounds that BLM failed to consider impacts to bird species listed under the federal Endangered Species Act (ESA) caused by the operation of the wind turbines.

A wind energy ...

As recently reported by a number of news agencies, President Obama will nominate Sally Jewell, the Chief Executive Officer of REI, to be the next Secretary of the Interior.  If the nomination is approved by the Senate, she will be replacing a vacancy created by Ken Salazar, who announced in January that he will be stepping down at the end of March.  It is anticipated that President Obama will make the announcement this afternoon.

In Northwest Coalition for Alternatives to Pesticides v. U.S. Environmental Protection Agency, 2013 U.S. Dist. LEXIS 11955, *1 (Jan. 28, 2013), the United States District Court for the Western District of Washington held (pdf) that claims arising under the citizen suit provision of the Endangered Species Act (ESA) are not subject to the strictures of the record review doctrine. The court held that, since the ESA citizen suit provision creates an express, adequate remedy at law, and the Administrative Procedure Act (APA) only applies when there is no other adequate remedy in court ...

On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals.  The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines.

The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises.  The proposed rule would authorize over 31 million takes during a five-year period.

All of the 62 species at issue are protected under the Marine ...

On February 1, 2013, the U.S. Fish and Wildlife Service announced its proposal to list the wolverine (Gulo gulo luscus) as a threatened species under the Endangered Species Act.  The proposed listing is the result of a court-ordered deadline established by a controversial settlement between the Service and two environmental organizations.  (See our posts from January 4 and January 14 for a discussion of this controversy.)

The wolverine resembles a small bear.  Adults weigh between 17 and 40 pounds.  The range of the species includes portions of California, Colorado, Idaho, Montana ...

On January 25, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Zuni bluehead sucker (Catostomus discobolus yarrowi) as endangered under the Endangered Species Act (ESA).  The sucker had been on the candidate list since 2001, when the Service determined that the species warranted protection under the ESA, but listing was precluded by higher priority listing activities.

The Zuni bluehead sucker has a torpedo-shaped body and bluish head.  The average length of a mature fish is approximately 200 centimeters (8 ...

On January 10, 2013, the United States District Court for the District of Alaska issued an order (pdf) vacating the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear after concluding that the Service failed to comply with substantive and procedural requirements in the Endangered Species Act.  Specifically, the district court found that the administrative record produced by the Service failed to contain evidence of the essential "physical or biological features" necessary to justify the designation of two large areas as critical ...

On January 23, 2013, over 25 California delegates to the House of Representatives introduced a bill, H.R. 399 (pdf), addressing the federal rules requiring trees growing on levees to be removed. Specifically, the bill would require the U.S. Army Corps of Engineers (Corps) to review its policy about vegetation-removal on levees, in order to consider allowing variances on a regional or watershed basis.

The Corps established a national vegetation removal policy in the wake of the failure of levees during Hurricane Katrina. According to Rep. Doris Matsui (D-CA), the [C]orps ...

On January 11, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA).  As we previously reported, the sage-grouse had been on the candidate species list since January of 2000, but the Service was not authorized to prepare a proposed rule to list the species or designate critical habitat until 2011, when additional resources became available.

The Gunnison sage-grouse is the smaller cousin of the greater sage-grouse.  The species ...

In Jayne v. Sherman, --- F.3d ---, 2013 U.S. App. Lexis 417, *1 (9th Cir. Jan. 7, 2013), the United States Court of Appeals for the Ninth Circuit upheld (pdf) a biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the Idaho Roadless Rule. Plaintiffs argued that FWS violated the Endangered Species Act (ESA) by improperly relying on commitments from the U.S. Forest Service regarding the impact of the rule on listed grizzly bear and caribou. In rejecting plaintiffs’ arguments, the court found that FWS reasonably relied on the Forest Service’s commitments to ...

This morning, Secretary of the Interior Ken Salazar announced that he is planning to step down at the end of March.  A number of prominent elected officials from the western United States have been mentioned in the press as potential candidates for the position.

On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court.  (A short discussion of the history leading up to these settlements can be found here and here.) 

The Safari Club asserted that it had a procedural ...

The California Department of Fish and Wildlife (Department) has determined (pdf) that there is sufficient scientific information to petition to list the Northeastern Pacific (NEP) population of white sharks (Carcharodon carcharias) as threatened or endangered under the California Endangered Species Act.  Currently, the take and possession of white sharks is protected from sport and commercial fishing activities, with limited exceptions, under existing laws.  However, the scientific information in the petition demonstrates that the species may benefit from ...

On December 28, 2012, the National Marine Fisheries Service (NMFS) issued a final rule (pdf) listing three subspecies of the ringed seal as threatened and one subspecies as endangered under the Endangered Species Act (ESA). The same day, NMFS listed (pdf) two distinct population segments of the bearded seal as threatened under the ESA. Based on the best scientific and commercial data available, NMFS concluded that a significant decrease in snow ice is probable later this century, and that these changes will likely cause these seal populations to decline. A species is considered ...

On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species ...

In Central Coast Forest Assoc. v. California Fish and Game Commission (pdf), the California Court of Appeal, Third Appellate District held that a petition to delist the endangered coho salmon (Oncorhynchus kisutch) under the California Endangered Species Act (CESA), fails at the outset because a petition to delist a species may not be employed to challenge a final determination of the Commission.  The 2-1 decision is one of a small number of reported cases to interpret the listing provisions of the California Endangered Species Act (CESA).  The decision has important state-wide ...

On January 2, 2013, the U.S. Fish and Wildlife Service (Service) issued a final rule increasing the critical habitat designated for the southwestern willow flycatcher (pdf) (Empidonax traillii extimus).  The flycatcher is a small migratory bird (approximately 6 inches long) that nests in dense riparian habitats along streams, lakesides, and other wetlands.  The Service listed the flycatcher as endangered in 1995, and in 1997 issued an initial critical habitat designation.  Shortly thereafter, however, the New Mexico Cattle Growers' Association filed a lawsuit ...

On December 26, 2012, in Strahan v. Roughead (pdf), the United States District Court for the District of Massachusetts denied a motion brought by federal defendants to dismiss as moot plaintiffs’ claims that the Navy is operating vessels in a manner that takes listed whales in violation of section 9 of the Endangered Species Act (ESA) and failing to consult with the National Marine Fisheries Service (NMFS) regarding the impacts of such operations in violation of section 7 of the ESA. The pro se plaintiff is alleging that the Navy, through the operation of its vessels and its military ...

On Tuesday, December 18, 2012, the U.S. Fish and Wildlife Service (Service) proposed upgrading the status of the wood stork (Mycteria americana) from endangered to threatened under the Endangered Species Act (ESA).  The proposed change is in response to improvements in the population and habitat of the species based on the best available scientific information.

Dan Ashe, Director for the Service, remarked that the proposed reclassification "demonstrates that the [ESA] works" and that "the species is making real progress toward recovery."  The wood stork was ...

This week endangeredspecieslawandpolicy.com crossed the 100,000 hits threshold.  We thank you, our readers, for your interest in the blog.  We will continue to work to provide timely and informative updates regarding legal and policy developments related to the management and conservation of threatened and endangered species.

On December 11, 2012, the U.S. Fish and Wildlife Service (Service) proposed listing (pdf) four subspecies of the Mazama pocket gopher (Thomomys mazama) as threatened under the Endangered Species Act. The Service also proposed designating 9,234 acres of critical habitat in Thurston and Pierce counties in the state of Washington. The four subspecies proposed for listing are the Olympia, Roy Prairie, Tenino and Yelm pocket gophers. The Service declared a fifth subspecies, the Tacoma pocket gopher, as extinct. The pocket gophers were proposed for listing last October, but the action ...

On December 4, 2012, the U.S. District Court for the District of Idaho denied a request to amend its previous order reversing the U.S. Fish and Wildlife Service's (Service) 2009 Final Rule listing the slickspot peppergrass (Lepidium papilliferum) as threatened under the Endangered Species Act (ESA).  Plaintiffs sought to reverse the court's August 2012 decision (pdf) to vacate the Service's determination in order to allow the listing to remain in place pending additional review.

The ESA defines "threatened" as "likely to become an endangered species within the foreseeable ...

In an order issued on December 6, 2012, the United States District Court for the Northern District of California dismissed a lawsuit brought by Wild Equity and other plaintiffs alleging violations of the Endangered Species Act’s take prohibition by the City and County of San Francisco.  The decision, in Wild Equity Institute v. City and County of San Francisco, N.D. Cal. Case No. C 11-958, closes a chapter in the longstanding effort of local environmental groups to shut down the historic Sharp Park golf course, which is located along the Pacific Ocean in the City of Pacifica and owned ...

On November 26, 2012, the National Marine Fisheries Service (NMFS or the Service) accepted a petition to delist a distinct population segment (DPS) of the Southern Resident killer whales, which is currently listed as endangered under the Endangered Species Act (ESA). 

The DPS, estimated to include 88 individuals, was initially listed as endangered under the ESA in 2005.  These killer whales are "resident" type, fish-eating whales that spend a specific period of time each year in the San Juan Islands and Puget Sound. 

On August 2, 2012, the Service received a petition from the ...

On November 30, 2012, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to list the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA).  While voluntary conservation planning efforts are ongoing, the Service decided (pdf) to move forward with the proposed rule based on scientific evidence that the lesser prairie-chicken and its habitat are in decline.  The Service encouraged the public and scientific community to comment on the proposed rule during the 90-day comment period.  The Service ...

On November 30, 2012, the United States District Court for the Northern District of California held (pdf) that because the National Marine Fisheries Service had considered the economic impacts of designating certain areas as critical habitat for the threatened green sturgeon (Acipenser medirostris), the Service complied with its obligations under section 4(b) of the Endangered Species Act. 

Section 4(b) of the Endangered Species Act states:

The Secretary shall designate critical habitat, and make revisions thereto, . . . on the basis of the best ...

The United States District Court for the District of Oregon dismissed claims brought by environmental organizations under section 9 of the Endangered Species Act (ESA) to prevent unlawful take of marbled murrelets (brachyramphus marmoratus). Cascadia Wildlands v. Kitzhaber, 2012 U.S. Dist. LEXIS 166966, at *2 (D. Or. Nov. 27, 2012) (pdf). Plaintiffs alleged that defendants, including individual members of the Oregon Board of Forestry and the State Land Board, violated the ESA by (1) authorizing timber sales on specific tracts of forestland, (2) approving forest ...

On November 5, 2012, the Environmental Defense Fund (EDF) sent a letter to the U.S. Fish and Wildlife Service (Service) encouraging the Service to consider an innovative approach to support conservation of the lesser prairie chicken (Tympanuchus pallidicinctus): through the use of habitat credit exchanges between companies and landowners.  The letter comes at a time when the Service is considering whether to propose to list the lesser prairie chicken under the Endangered Species Act (ESA).  Currently the Service has determined that listing of the species "is warranted ...

The U.S. Fish and Wildlife Service (Service) recently announced  (pdf) that it finalized its designation of critical habitat for the northern spotted owl (Strix occidentalis caurina) in the Pacific Northwest.  The final rule designated 9.29 million acres of federal land and 291,750 acres of state land as critical habitat for the species.  The final rule reduced the amount of habitat by approximately 4.3 million acres from a February 2012 proposal.  The Service asserts that this designation comported with a Presidential Memorandum directing the Department of the Interior to give ...

On Tuesday October 24, 2012, several conservation groups wrote a letter to President Obama expressing concerns about an agreement that the Obama Administration entered into with the American Forest Resource Council, Carpenter Industrial Council, and Douglas County, Oregon (Plaintiffs), to remove critical habitat for the marbled murrelet (Brachyramphus marmoratus), a seabird listed as threatened under the Endangered Species Act (ESA).  The agreement still needs approval by the United States District Court for the District of Columbia.

Plaintiffs sued the U.S. Fish and ...

In a decision with important implications for the intersection of water rights and the Endangered Species Act (ESA), the federal district court in Santa Ana, California upheld the designation of critical habitat for the Santa Ana Sucker (catostomus santaanae) in Southern California. (A .pdf copy of the court's decision is available here.) The ruling is the latest in a decade-long fight over critical habitat for the fish that some have dubbed Southern California’s delta smelt. Louis Sahagun, Court Upholds Habitat Protection for Santa Ana Sucker, Los Angeles Times (Oct. 24 ...

The National Marine Fisheries Service (NMFS) has released a public draft recovery plan for the distinct population segment (DPS) of steelhead (Oncorhynchus mykiss) that occupies California's South-Central Coast.  NMFS announced the availability of the draft recovery plan and issued a request for comments in the Federal Register (pdf).  Steelhead are anadromous fish that spawn in coastal watersheds, rear in freshwater or estuarine habitats, and migrate to the ocean for the balance of their lives.  The South-Central Coast DPS extends from south of San Luis Obispo in the south to ...

On October 22, 2012, the Ninth Circuit Court of Appeals held that the U.S. Fish and Wildlife Service (Service) abused its discretion when it issued a biological opinion (BiOp) and incidental take statement for the Ruby Pipeline Project, and ordered the Service to prepare a revised BiOp.  Center for Biological Diversity v. U.S. Bureau of Land Management, No. 10-72356 (9th Cir. Oct. 22, 2012) (pdf). 

Specifically, the court held that the Service's "no jeopardy" and "no adverse modification" to critical habitat determinations relied on protective measures that are not ...

On October 18, 2012, the Center for Biological Diversity filed a petition (pdf) requesting that the California Fish and Game Commission list the Townsend's big-eared bat (Corynorhinus townsendii) as endangered or threatened throughout its range in California.  The petition states that the bat is in widespread decline throughout the western United States, and that the bat is "severely threatened by a combination of disturbance of cave and mine sites, loss of mine and cave habitat to mining, logging and urban development, white-nose syndrome and other factors."  The next step in ...

Recently, House Representatives John Garamendi (D-Fairfield, CA), Jerry McNerney (D-Stockton, CA), Doris Matsui (D-Sacramento, CA), George Miller (D-Martinez, CA), and Mike Thompson (D-St. Helena, CA) introduced H.R. 6484 (pdf), a bill entitled the SAFE Levee Act. The bill would authorize the Secretary of the Interior to provide assistance to local interests for levee stability improvements within the Sacramento-San Joaquin Delta and require the Secretary of the Interior to carry out a cost-benefit analysis of water conveyance options being considered in the Bay Delta ...

Part I: Assembly Bill 2402 (Huffman)

On September 25, 2012, Governor Jerry Brown signed Assembly Bill 2402 and Senate Bill 1148, which make a number of changes to the Fish and Game Code, into law.  AB 2402 was sponsored by Assemblyman Jared Huffman and SB 1148 by Senator Pavely and these bills will implement a number of recommendations that emerged from a Strategic Vision process for the Department of Fish and Game and the Fish and Game Commission that took place during 2011 and 2012.  SB 1148 will be discussed in Part II of this update.

The key provisions of AB 2402 are described below.

• Section 8 ...

Previously, we reported on the latest chapter in the decade-long dispute between environmental groups, federal agencies, and pesticide manufacturers over the impact of pesticides on the Pacific Northwest’s listed salmon populations.  The next chapter is scheduled for October 24, 2012, when the U.S. Court of Appeals for the Fourth Circuit will hear oral argument in DowAgrosciences LLC v. National Marine Fisheries Service. In that case, a consortium of pesticide manufacturers are arguing that a Biological Opinion (BiOp) issued by the National Marine Fisheries Service ...

Last week, environmental advocacy groups celebrated a victory in a decade-long fight over the proper balance between agricultural and environmental interests in the Pacific Northwest. On October 1, in Northwest Coalition for Alternatives to Pesticides v. EPA, the federal district court for the Western District of Washington denied the defendant’s effort to dismiss the lawsuit thereby permitting plaintiffs' citizen suit against the Environmental Protection Agency (EPA) under the Endangered Species Act (ESA) to move forward. (A .pdf copy of the court's decision is ...

Today, the U.S. Fish and Wildlife Service announced a proposed rule (pdf) to remove the valley elderberry Longhorn beetle (Desmocerus californicus dimorphus) from the list of threatened species.

The delisting will be significant for landowners, flood control agencies, and irrigation districts throughout the Central Valley of California because they will no longer be required to seek prior authorization for the incidental take of the beetle.  The beetle, as its name suggests, depends upon its host plant species, the valley elderberry, which grows along streams, rivers ...

Governor Brown signed a bill into law that generally makes it unlawful to permit or allow a dog to pursue a bear or bobcat at any time. The bill, introduced as SB 1221 by State Senator Ted Lieu, is intended to curb the use of dogs to hunt bears or bobcats.  Debate over the bill divided both houses of the California legislature.  David Siders reported that "[t]he legislation pitted wildlife advocates against hunters at the California Capitol – the former raising concerns about the humane treatment of animals, the latter about urban elitism" (Sacramento Bee, Sept. 27, 2012).

The bill to ban ...

In 2011, the U.S. Fish and Wildlife Service (Service) reached a settlement agreement with environmental groups in which it agreed to make final listing decisions on over 200 species over the next six years. Last month, we noted that the national effects of this settlement agreement had yet to be fully discerned.  (See Signs of Trouble Ahead?)  Today, its effects became a little clearer as the Service issued a proposed rule to list the Mount Charleston blue butterfly (Icaricia shasta charlestonensis) as an endangered specie.  In addition, the Service intends to list as threatened ...

On September 17, 2012, the U.S. Fish and Wildlife Service announced (pdf) that it had issued a final rule listing 23 species native to the Hawaiian island of Oahu as threatened or endangered under the Endangered Species Act.  The species include 20 plants and three damselflies. The rule follows a legal settlement with the Center for Biological Diversity that required the agency to make determinations with respect to 757 species, including 17 of the 23 Oahu species granted protection.  At the same time it issued the listing determinations, the Service designated 42,804 acres (or ...

On September 4, 2012, the San Francisco Chronicle reported that the U.S. Fish and Wildlife Service will issue a final rule today listing the Franciscan manzanita (Arctostaphylos franciscana) as an endangered species under the Federal Endangered Species Act.  (See article by Peter Fimrite).  The Chronicle also reported that the Service proposes to designate more than 300 acres of critical habitat in San Francisco for the plant.  The proposed critical habitat includes areas in Presidio, Corona Heights, Twin Peaks, Mount Davidson, Diamond Heights, Bernal Heights, and Bayview ...

 In a 2-1 decision (pdf), the United States Court of Appeals for the District of Columbia Circuit recently upheld the decision of the Fish and Wildlife Service to delist the West Virginia northern flying squirrel (Glaucomys sabrinus fuscus). The lower court held that the Service violated the Endangered Species Act (ESA) by removing the species from the list of endangered and threatened species despite the fact that several Recovery Plan Criteria had not been satisfied. In its decision, the D.C. Circuit held that [a] plan is a statement of intention, not a contract, and that [i]f the plan ...