Posts tagged Endangered Species.

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the past year, starting with last summer’s Endangered Species Act (ESA) amendments. Some of these challenges stem from changes in regulatory schemes or adverse court holdings, while others stem from uncertainty of pending ESA listing decisions and other actions. 

In our recent webinar concerning Adapting Linear Infrastructure Projects to Changing Regulatory Frameworks, we discussed the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. One of the topics we covered was the 2019 regulatory amendments to the Endangered Species Act (ESA). In the following video clip from the webinar, we review some of the revised definitions and updated language in the new version of the regulations.

If you would like to view the full webinar ...

The United States Fish and Wildlife Service ("Service") recently released a pre-publication version of its final rule to reclassify the American burying beetle (Nicrophorus americanus) from endangered to threatened under the Endangered Species Act (“ESA”).  The final rule will also include 4(d) rule provisions that specify when the ESA section 9 take prohibitions will apply to the beetle.

The American burying beetle, which gets its name from its tendency to burrow under vegetation or into soil during the daytime and throughout the winter hibernation season, is the largest ...

Posted in Litigation
Environmental Groups Allege Illegal Take of Sea Turtles by Florida Resorts

A pair of non-profit organizations recently served a 60-day notice of intent (Notice) to file a citizen suit against Hilton Hotels, Bahia Mar Resorts, and the Suntex Marinas (collectively, the Resorts) under section 9 of the Endangered Species Act (ESA) for the alleged take of the loggerhead sea turtle (Caretta caretta) and green sea turtle (Chelonia mydas) in Florida. ESA section 9 prohibits the unpermitted “take” of any endangered species, and the ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” or an attempt to do ...

USFWS Proposes Rule Codifying “Critical Habitat” Exclusion Analysis

On September 8, 2020, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule codifying procedures for excluding areas of “critical habitat” under section 4 of the Endangered Species Act (ESA). ESA section 4(b)(2) provides discretionary authority to the USFWS and National Marine Fisheries Service (NMFS), as administrators of the ESA, to exclude certain areas from critical habitat designations for species within their purview. These agencies can exclude areas from a critical habitat designation where the agencies conclude the benefits of excluding the areas ...

Kangaroo Rat: From Endangered to Threatened

On August 19, 2020, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would remove the Stephens’ kangaroo rat (Dipodomys stephensi) from the federal list of Endangered Species. The proposed rule would, instead, list the kangaroo rat as threatened under the Endangered Species Act (ESA), and would provide a rule under ESA section 4(d) to provide for conservation of the kangaroo rat.

The Stephens’ kangaroo rat was originally listed as an endangered species in 1988. It is a small, nocturnal mammal, with external cheek pouches, large hind legs, a long tail ...

Federal Wildlife Agencies Propose Rule to Define Habitat

The Departments of Commerce and the Interior (Departments) have completed a proposed rule to define the term “habitat” as that term is used in the context of designating “critical habitat” under the Endangered Species Act (ESA). The proposed rule will soon be published in the Federal Register. Upon publication, the public will be given 30 days to submit comments. If finalized, the definition will be included in the joint regulations developed by the two Departments to implement section 4(a)(3)(A)(i) of the ESA. The ESA, itself, defines the term “critical habitat” but ...

Paul Weiland Discusses Impact to California’s Agricultural Community if Bees Protected by ESA

Paul Weiland was interviewed on Air Talk radio (an NPR affiliate based in Southern California) regarding the California Fish and Game Commission’s recent decision to list four native bees as candidates to become endangered species.

Paul discussed the negative repercussions such an action could have for the agricultural community in California—such as disrupting planting and harvest cycles, and whether classifying bees as fish (for the purpose of an ESA listing) is permissible under current California law ...

Posted in Listing, Litigation
Court Remands Northern Long-eared Bat Listing Back to USFWS

Yesterday, in Center for Biological Diversity v. Everson​, the United States District Court for the District of Columbia overturned the U.S. Fish and Wildlife Service’s (USFWS) decision to list the northern long-eared bat (Myotis septentriodnalis) as threatened rather than endangered, and remanded the decision back to the agency.  The threatened listing will remain intact while USFWS undertakes a new listing decision.

In addition to remanding the threatened listing decision back to the USFWS, the court also vacated a portion of the USFWS’s and National Marine ...

On January 15, 2020, the United States Court of Appeals for the Fifth Circuit reversed a lower court decision that upheld the determination of the U.S. Fish and Wildlife Service (Service) denying a petition to delist the Golden-Cheeked Warbler (Setophaga chrysoparia) (Warbler). The Service listed the Warbler as an endangered species under the Endangered Species Act (ESA) in 1990, initially on an emergency basis.

The petition to delist the Warbler was submitted to the Service in 2015 by a group of petitioners that included the General Land Office of the State of Texas. The petition ...

On January 6, 2020, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the Kanab ambersnail (Oxyloma haydeni kanabensis) is no longer warranted for listing as an endangered species under the federal Endangered Species Act (ESA). The proposed rule states that the Kanab ambersnail does not represent a valid taxonomic entity, and therefore does not meet the definition of “species” under the ESA. The ESA defines “species” as including ''any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

The Kanab ambersnail, which gets its name from its mottled, amber-colored shell, is a terrestrial snail ...

Posted in Listing
Florida Man Faces Federal Prison, Fines for Killing Endangered Smalltooth Sawfish

On November 1, 2019, Chad Ponce of Jacksonville, Florida pleaded guilty to killing a smalltooth sawfish (Pristis pectinata), an endangered species protected under the federal  Endangered Species Act (ESA) and Florida Endangered and Threatened Species Act . Sawfishes are a family of rays characterized by a long, narrow, flattened rostrum, or nose extension, lined with sharp teeth, arranged in a way that resembles a saw. Sawfish use that rostrum to sense and attack prey; without it, they can’t survive. They are among the largest fish, with some species reaching lengths of up to 17-18 ...

FWS Proposes Removing Interior Least Tern from ESA Protection

On October 24, 2019, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the interior least tern (Sterna antillarum) is no longer warranted for listing as an endangered species under the Endangered Species Act (ESA).

The interior least tern, the smallest of the tern species in North America, was first observed in 1804 by explorers Meriwether Lewis and William Clark. The fish-mongering bird currently nests adjacent to major U.S. rivers within the Lower Mississippi Valley and the Great Plains region across ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

FWS Ordered to Explain Rio Grande Cutthroat Trout Decision

On September 26, 2019, the U.S. District Court for the District of Colorado vacated and remanded in part the U.S. Fish and Wildlife Service’s (Service) 2014 determination that listing the Rio Grande cutthroat trout (Oncorhynchus clarki virginalis) under the Endangered Species Act (ESA) was not warranted.

The Rio Grande cutthroat trout is native to high-altitude streams in southern Colorado and New Mexico. In 2008, the Service determined that the Rio Grande cutthroat trout warranted listing as an endangered or threatened species, although listing was precluded by other higher ...

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) announced the finalization of regulations governing implementation of various aspects of the Endangered Species Act (ESA). Among those regulations were rules setting forth how the Services and other federal agencies were to consult on potential impacts of federal activities on ESA-listed species and designated critical habitat.  The new rules were to go into effect on September 26, 2019.  Today, the Services announced that the effective date for the interagency consultation ...

FWS Rejects Petitions to List Yellowstone Bison, But Other Listing and Critical Habitat Designations May be Warranted

On August 6, 2019, the U.S. Fish and Wildlife Service (FWS) published a 90-day finding that listing the Yellowstone Park bison (Bison bison bison) under the Endangered Species Act is not warranted. FWS also found that listing the Mojave poppy bee (Perdita meconis) and revising the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) may be warranted ...

FWS Decides Not to List Joshua Tree and Other Species Under the ESA

On August 15, 2019, the U.S. Fish and Wildlife Service (FWS) published a series of notices in the Federal Register announcing the agency’s 12-month and 90-day findings on petitions to list a number of species under the Endangered Species Act (ESA).  Most prominently, the FWS declined to list two species commonly known as the Joshua tree (Yucca brevifolia and Yucca jaegeriana) ...

The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA).  On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States ...

Settlement Eliminates 1,500 Acres of Designated Dusky Gopher Frog Critical Habitat

The U.S. Fish & Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach ...

Environmental Groups Seek Protection for Mountain Lions in Southern California

The Center for Biological Diversity and Mountain Lion Foundation submitted a petition to the California Fish and Game Commission (the Commission) to list mountain lions (Puma concolor) in southern and central California as threatened or endangered pursuant to the California Endangered Species Act.  The petition identifies habitat loss and fragmentation, due to roads and development, as significant threats to the survival of the local populations.

The petition acknowledges that there is no reliable estimate of mountain lion abundance in California, but includes estimates for ...

On June 12, 2019, the California Fish and Game Commission (Commission) voted 3-1 that listing four subspecies of bumble bee may be warranted under the California Endangered Species Act (CESA).​  The decision was made after the Xerces Society, Center for Food Safety, and Defenders of Wildlife filed a petition to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckley cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered species under CESA.

Presently, no insects are ...

On May 22, 2019, the U.S. Fish and Wildlife Service (FWS) announced a proposal to list two intriguing North Carolina aquatic species under the Endangered Species Act (ESA). The FWS was spurred to act in part by a 2010 petition and subsequent litigation from environmental organizations to list over 400 aquatic species found in the southeastern United States. The two species the agency deems as needing protection in this proposed rule are the Carolina madtom (Noturus furiosus), a poisonous catfish, and the Neuse River waterdog (Necturus lewisi), a freshwater salamander.

The Carolina ...

On January 28, 2019, the Superior Court for San Diego County upheld the California Fish and Game Commission’s (Commission) 2015 decision to list the gray wolf (canis lupus) under the California Endangered Species Act (CESA). (Cal. Cattlemen’s Assn. v. Cal. Fish & Game Com. (Super. Ct. San Diego County, 2019, No. 37-2017-00003866-CU-MC-CTL).)

CESA defines an endangered species as a native species or subspecies of bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or ...

On December 28, 2018, the Department of the Interior (DOI) published proposed changes to its rules governing how it processes requests for records under the Freedom of Information Act (FOIA) and provided a 30-day timeframe in which the public could submit comments to the DOI concerning those changes. The public review and comment period is currently scheduled to close on January 28, 2019. However, the partial government shutdown has caused several groups to question whether or not the public comment period should, in fact, close as scheduled. More than 1,200 comments have been ...

On November 21, 2018, the U.S. Fish and Wildlife Service (Service) published a final rule listing the candy darter (Estheostoma osburni) as endangered and proposing critical habitat for the species.  The candy darter is a small, freshwater fish species native to Virginia and West Virginia.  The Service’s announcement finalizes its proposed rule to list the candy darter, which was published on October 4, 2017, with one significant difference – the Service originally proposed to list the candy darter as threatened, but the final rule lists the candy darter as endangered.

The candy ...

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (Combs), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (Service).  As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is ...

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the ...

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and the Second Amendment, the addition of Justice Kavanaugh to the Supreme Court could also have significant effects on a range of environmental laws and regulations, including the Endangered Species Act (ESA).

One of Judge Kavanaugh’s most well-known environmental opinions is from Otay Mesa Property, L.P. v. Interior, 646 F.3d 914 (D.C. Cir. 2011). In Otay Mesa, the U.S. Fish and Wildlife Service (Service) had observed four endangered San Diego fairy shrimp (Branchinecta sandiegonensis) in one location on a dirt road on the plaintiffs’ 143-acre property. Based on that single observation, the Service designated the plaintiffs’ property as occupied habitat for purposes of its critical habitat designation under the ESA. The D.C. Circuit held that substantial evidence did not support the Service’s designation of critical habitat for the San Diego fairy shrimp. Judge Kavanaugh explained that while the Service may protect areas outside of the geographic range occupied by an ESA-protected species as essential to the species’ conservation, it had instead asserted that this was occupied habitat for the fairy shrimp. Judge Kavanaugh found that a single observation of a species did not provide sufficient evidence that the area was occupied habitat. And while the Service was under no requirement to continue looking for the endangered shrimp, Judge Kavanaugh noted that the lack of such an obligation is not the same as an authorization to act without data to support its conclusions. 646 F.3d at 918. This opinion suggests that Judge Kavanaugh is likely to narrowly interpret the provisions of the ESA.

Similarly, Justice Kavanaugh’s position on Chevron deference may have wide ranging consequences for environmental statutes, including the ESA.

On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispidaPhoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA).

On June 17, 2015, the U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to reinitiate consultation with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of a revised critical habitat designation on the Canada lynx (Lynx canadensis).  Cottonwood Environmental Law Center v. U.S. Forest Service, No. 13-35624 (9th Cir. Jun. 17, 2015) (pdf).  The Canada lynx was listed as threatened in 2000, and a limited amount of critical habitat was designated for the species in 2006 ...

On May 1, 2015, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the wildlife agencies) issued a final rule amending the regulations governing consultation under section 7 of the Endangered Species Act (ESA) in order to codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion.  The final rule also provides that consultations on programmatic actions that would not result in incidental take without specific future actions will not be ...

The Transportation Research Bureau ("TRB"), a division of the National Research Council within the National Academies, has released a report entitled Innovative Airport Responses to Threatened and Endangered Species (pdf).  The report is intended to assist airport sponsors and operators in addressing federally listed species issues on or near their facilities.  The introduction to the report includes the following summary of its contents:

"ACRP Report 122 first introduces relevant regulations and then provides a discussion of potential areas of conflict between ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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