Endangered Species Law & Policy

Last week, the U.S. Fish and Wildlife Service (Service) published two proposed rules to delist a total of 24 species under the Endangered Species Act (ESA).  First, the Service published a proposed rule delist 23 species as a result of the species’ extinction.  The 23 now-extinct species include thirteen species of birds, eight freshwater mussels, one Texas fish, and one Hawaiian plant.  The Federal Register notice indicates that, based on the best available scientific and commercial data, these species are no longer extant, and therefore no longer meet the definitions of ...

On September 20, 2021, the U.S. District Court for the Central District of California set aside the U.S. Fish and Wildlife Service’s (Service) negative 12-month finding (Finding) on a petition by WildEarth Guardians (Guardians) to list the Joshua tree (Yucca brevifolia) as threatened under the Endangered Species Act (ESA).

The petition had alleged that the Joshua tree is threatened by the effects of climate change and its associated effects, including drought and increasing wildfires. On September 14, 2016, the Service issued a positive finding on Guardians’ petition ...

Today, the U.S. Fish and Wildlife Service (Service) announced its 90-day findings on petitions to list two proposed distinct population segments (DPS) of the gray wolf (Canis lupus) as threatened or endangered under the Endangered Species Act (ESA): a Northern Rocky Mountains DPS and a Western United States DPS. The Service determined that listing may be warranted, and announced its intention to initiate a status review for these populations of the species.

In 1978, except for the Minnesota population, the gray wolf was listed as an endangered species throughout the ...

On September 8, 2021, the U.S. Fish and Wildlife Service ("USFWS") published a final rule in the Federal Register listing the slenderclaw crayfish as endangered under the Endangered Species Act ("ESA") and identifying approximately 78 miles of river in DeKalb and Marshall Counties, Alabama as critical habitat for the species.

The slenderclaw crayfish is a small freshwater crustacean that is endemic to streams on Sand Mountain within the Tennessee River Basin in Alabama. Most of the slenderclaw crayfish’s natural habitat was flooded when the Tennessee River was dammed in 1939 to ...

The U.S. Fish and Wildlife Service (Service) recently listed the Franklin’s bumble bee as an endangered species under the Endangered Species Act.  Historical records indicate that the species is endemic to southwest Oregon and northern California.  The last known record of the species dates back to 2006.  The Service’s decision is the culmination of a listing process that began 11 years ago with the submission of a petition to list by the Xerces Society in 2010.

In its press release announcing the decision, the Service both noted that Franklin’s bumble bee has the smallest known ...

On August 18, 2021, the U.S. Fish and Wildlife Service (“Service”) published in the Federal Register a final rule designating more than 1,315 acres across 14 units as critical habitat (“Final Rule”) for two neotenic salamander species known only from Williamson and Bell Counties, Texas: the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eurycea chisholmensis).  The species are “neotenic” because they do not transform into a terrestrial form and instead spend their entire life cycle in water.  The Final Rule was published in accordance with a ...

Today, the U.S. Fish and Wildlife Service (“Service”) published in the Federal Register a proposal to list six Central Texas mussel species under the Endangered Species Act (“ESA”), to issue an ESA section 4(d) rule for one of the species, and to designate critical habitat (“Proposed Rule”).  Specifically, the Service has proposed to list the Guadalupe fatmucket (Lampsilis bergmanni), Texas fatmucket (Lampsilis bracteata), Guadalupe orb (Cyclonaias necki), Texas pimpleback (Cyclonaias (=Quadrula) petrina), and false spike (Fusconaia (=Quincuncina) mitchelli) as endangered ... 

On Monday, the U.S. Fish and Wildlife Service (FWS) published a final rule delisting the now-recovered Cumberland sandwort (Arenaria cumberlandensis) under the Endangered Species Act (ESA).  Originally listed as endangered in 1988, the Cumberland sandwort is a perennial plant species occurring in cave-like “rockhouses” or bluff sites throughout northern Tennessee and southern Kentucky.  In 1996, the FWS released a recovery plan for the species.  By December of 2013, the FWS recommended downlisting the Cumberland sandwort to threatened status, and in April of 2020, the ...

Last Friday, the U.S. Fish and Wildlife Service (“USFWS”) finalized the removal of the now-recovered Trifolium stoloniferum (running buffalo clover) from the list of endangered and threatened wildlife and plants protected under the Endangered Species Act (“ESA”).  Running buffalo clover is a perennial species with small white flowers and leaves divided into three leaflets.  The plant produces creeping stems that “run” along the surface of the ground to re-root and form new clusters of clover.

The USFWS initially listed the running buffalo clover as an endangered ...

In an article published this week in California Fish and Wildlife, co-authors Stephanie Clark, Ashley Remillard and I provide an overview of the process of determining whether to list species as threatened or endangered, and thereby protect them, under the California Endangered Species Act (CESA). Listing is the gateway to protection under CESA. The process is analogous to listing under the federal Endangered Species Act in certain respects but it also differs in a number of respects, perhaps the most important being that the decision whether to list a species is made by the Fish and ...

On June 29, 2021, fourteen members of Congress delivered a letter to Secretary of the Interior Deb Haaland urging the U.S. Fish and Wildlife Service (Service) to use its authority to list the monarch butterfly (Danaus plexippus) on an emergency basis under section 4 of the Endangered Species Act (ESA). The letter, which garnered only Democratic support, notes that the population of western monarchs has sunk to under 2,000 individuals and states that immediate action is necessary to prevent extinction of the species.

Section 4 of the ESA authorizes the Service to immediately place a ...

The American Bar Association has published a newly revised edition of its tome Endangered Species Act: Law, Policy, and Perspective.  Editors Don Baur and Jake Li pulled together leaders in the field from government, the private sector, and non-profits who penned 18 chapters covering all aspects of the Endangered Species Act (ESA) and its implementation.  The volume also covers related topics including state-level and international efforts to protect wildlife.

Steve Quarles, Paul Weiland, and Brian Ferrasci-O’Malley contributed a chapter in the volume on the prohibitions ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden ...

On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA).  The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability ...

On May 14, 2021, the Department of Justice filed a brief with the Supreme Court arguing that the Court should not hear the case of Kansas Natural Resource Coalition v. Department of Interior (“KNRC”). KNRC is a challenge to a rule interpreting the Endangered Species Act (“ESA”) that was jointly issued by the United States Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) in 2003: The “Policy for Evaluation of Conservation Efforts When Making Listing Decisions,”(68 Fed. Reg. 15,100 ...

In a per curiam decision, the United States Court of Appeals for the D.C. Circuit dismissed the Center for Biological Diversity’s (CBD) challenge to the Fish and Wildlife Service’s (Service) process for assessing the status of species to inform regulatory decisions with respect to those species.  That process, referred to as species status assessment (SSA), is akin to a biological risk assessment for the target species.  It has been developed by the Service over the past several years and provides a more structured approach to assessing listing, delisting, uplisting, and ...

The U.S. Fish and Wildlife Service (USFWS) has announced the next chapter in the lesser prairie chicken’s (Tympanuchus pallidicinctus) (LEPC) tumultuous listing history. On May 26, 2021 the USFWS announced that it will propose a rule to establish a Northern distinct population segment (DPS) and a Southern DPS of the LEPC.  USFWS has proposed to list the Southern DPS – consisting of portions of New Mexico and Texas – as endangered. If finalized, the ESA take prohibition would apply across the Southern DPS without exception. The USFWS proposes to list the Northern DPS ...

The U.S. Fish and Wildlife Service (Service) recently announced its finding that three salamander species do not warrant listing as endangered or threatened species under the Endangered Species Act (ESA). The Service’s announcement follows a court-approved settlement agreement in which the Service agreed to make a 12-month finding for the Shasta salamander (Hydromantes shastae), Samwel salamander (H. samweli), and Wintu salamander (H. wintu). The finding comes despite concerns from some environmental groups that a proposed project to raise the height of the Shasta Dam and ...

In the first week of May, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) proposed rules to remove six species from the lists of endangered and threatened wildlife and plants under the Endangered Species Act (“ESA”).

On May 4, 2021, NMFS issued a proposed rule to remove Siderastrea glynni, a coral originally found at Urabá Island, Panama Gulf, from the ESA lists.  The coral was first discovered in 1992 and was initially thought to be the only extant Siderastrea species in the eastern Pacific Ocean.  NMFS received a petition to ...

This week, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing the role of conceptual ecological models in implementing the federal Endangered Species Act. Conceptual ecological models are a specialized subset of conceptual models generally intended to describe the environmental factors that affect an ecological community, a species, or a population. Conceptual ecological models are useful in a variety of contexts ranging from development of research proposals and monitoring schemes, to regulatory ...

In the 1978 amendments to the Endangered Species Act (ESA), Congress created the Endangered Species Act Committee, also know as the “God Squad.” The God Squad is composed of mostly Cabinet-level officials and has the authority to exempt a federal agency action from the ESA’s prohibition on taking actions that could lead to the extinction of an endangered or threatened species. While the God Squad has been around for more than four decades, its awesome powers have rarely been invoked. Perhaps due to scientific advances, it is possible that the God Squad may itself be heading for ...

In 2017, the Natural Resources Defense Council filed a lawsuit against the U.S. Environmental Protection Agency (EPA) over its approval of pesticides containing three active ingredients – acetamiprid, dinotefuran, and imidacloprid – due to their allegedly negative impacts on species listed as threatened or endangered under the Endangered Species Act (ESA).  On February 8, 2018, the parties agreed to dismiss claims related to 36 of the pesticides. 

On January 28, 2021, the Court approved a partial settlement pertaining to 46 of the remaining pesticides.  Specifically, for ...

In December 2020, the United States District Court for the District of Montana issued an order on cross-motions for summary judgment concluding that it lacked jurisdiction—under both the Administrative Procedure Act (APA) and Endangered Species Act (ESA)—to hear a lawsuit involving an environmental group’s denied request to update an existing recovery plan for the grizzly bear (Ursus arctos horribilis). Ctr. for Biological Diversity v. Bernhardt, CV 19-109-M-DLC, at 26 (D. Mont. Dec. 23, 2020) (Order). After listing the grizzly bear nearly half a century ago, the U.S ...

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement ...

On January 13, 2021, the U.S. Fish and Wildlife Service (Service) published a final rule to remove the inland population of the Interior least tern (Sterna (now Sternula) antillarum) from the list of endangered and threatened wildlife under the Endangered Species Act (ESA).  Originally listed as an endangered species under the ESA in 1985, the Interior least tern is a small, fish-eating bird occurring along the Arkansas, Ohio, Mississippi, Missouri, Red, and Rio Grande rivers.  

Prior to listing, the Interior least tern’s population had fallen below 2,000 as a result of habitat ...

On December 31, 2020, the National Marine Fisheries Service (“NMFS”) proposed to amend regulations implementing the Atlantic Large Whale Take Reduction Plan (“ALWTRP” or “Plan”) with the stated goal of reducing the incidental mortality and serious injury to the endangered North Atlantic right whale, as well as fin whales and humpback whales, in the Northeast commercial lobster and crab trap/pot fisheries. The agency stated that the amendment is needed in order to comply with the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA” ...

On December 15, 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the agencies) released a pre-publication version of a final rule providing a definition of “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  The agencies released a proposed rule defining habitat in August 2020 in response to a unanimous decision by the U.S. Supreme Court in 2019 overturning a lower court decision that upheld a controversial determination of critical habitat by the U.S. Fish and ...

On November 19, 2020, in a call back to its criminal lawsuit against Joseph “Tiger King” Maldonado-Passage, the U.S. Department of Justice filed a civil lawsuit against the husband and wife team who took over the wildlife park that was front and center throughout the Netflix hit series Tiger King – Jeffrey and Lauren Lowe. Unlike the prior lawsuit against Mr. Maldonado-Passage (previously covered here), the lawsuit against the Lowes does not seek jail time, nor does it seek damages. Instead, the lawsuit asks the U.S. District Court for the Eastern District of Oklahoma to (1 ...

On November 3, 2020, the United States Fish & Wildlife Service (“Service”) published a final rule removing the gray wolf (canis lupus) from the federal list of Endangered and Threatened Species in the lower 48 United States and Mexico. The rule will take effect on January 4, 2021. At the same time, the Service denied a petition, filed by environmental groups, to maintain protections for the gray wolf in the lower 48 United States. However, the Service did maintain the separate listing of the Mexican wolf subspecies as endangered, a listing that was put in place on January 16, 2015; the ...

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 ...

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 ...

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 ...

We recently recorded a podcast as part of the Environmental Law Institute’s (ELI) People Places Planet Podcast series “Engage the Experts.” In our recent discussion entitled “The Shifting Landscape of Renewable Energy Development,” we discuss recent changes in environmental regulations and related court decisions that are impacting project development, as well as what this shifting terrain means for the development, expansion and maintenance of renewable energy technologies. Tune in to learn about what recent regulatory and judicial developments mean for ...

The California Fish and Game Commission deferred the decision on whether to make the western Joshua tree a candidate for listing to a special meeting in September 2020. In a hearing on August 20, 2020, the Commission heard a wide variety of perspectives on whether listing the species may be warranted. The California Department of Fish and Wildlife’s 90-day evaluation recommended a “may be warranted” finding but at the hearing Director Bonham indicated he was open to deferring the decision in order to work with the stakeholders ... 

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 ...

Please join us for a complimentary webinar on July 30, 2020 from 11:00 a.m. – 12:30 p.m. PT, where we will discuss the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. We will examine...

On June 17, 2020, a federal court in Colorado vacated an incidental take permit (ITP) issued to the Nebraska Public Power District (NPPD) authorizing take of the endangered American burying beetle (ABB) that could occur in connection with NPPD’s construction and operation of the 225-mile R-Project transmission line (R Project). The court vacated the ITP on the grounds that its issuance by the U.S. Fish and Wildlife Service (USFWS) violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and section 106 of the National Historic Preservation Act ...

On June 4, 2020, President Trump signed an executive order to provide federal agencies the foundation to speed up environmental permitting in the wake of COVID-19. While the move was lauded by many, others view the executive order as an impermissible use of executive power to circumvent environmental protections. The Center for Biological Diversity has already announced its plans to pursue litigation challenging the EO, alleging violations of the Endangered Species Act. 

Executive Order 13927, “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency ...

Today, the United States District Court for the District of Montana issued an order amending its previous order, which had invalidated nationwide permit 12 (NWP 12) on the basis that the U.S. Army Corps of Engineers (Corps) failed to engage in a programmatic Endangered Species Act (ESA) section 7 consultation when the Corps reissued NWP 12 in 2017.  The case arose out of the controversy over the Keystone XL Pipeline. The effect of the court’s prior ruling vacated NWP 12 in its entirety and enjoined its use to authorize impacts to waters of the United States under the Clean Water Act.  NWP 12 ...

While section 9 of the Endangered Species Act (ESA) generally prohibits the “taking” of an endangered species, under section 10 of the ESA the U.S. Fish and Wildlife Service (Service) may issue a permit exempting an activity from the take prohibition if the take is for scientific purposes or to enhance the propagation or survival of an endangered species. Under the authority provided by section 10, the Service established the Captive Bred Wildlife permitting program (Program). The Program permits a registrant to export, import, deliver, receive, carry, sell, transport, and ship an endangered species if such activity is to enhance the propagation or survival of the species.

In the early part of this century the Phoenix Herpetological Society, Inc. (Society) applied to and was registered under the Program for certain species. Over the years the Society applied for various amendments to its registration. Some of these amendments were granted, and some were not.

In February 2018, the Society applied to amend its registration to include the Komodo dragon (Varanus komodoensis) ...

The sweeping and rapid ascent to popularity of Netflix Inc.'s "Tiger King" documentary series has fueled new interest in two congressional bills that stalled in committee last year, and has drawn public attention to a quirk of the Endangered Species Act, or ESA.

I recently authored the article, "'Tiger King' Shines Light on an Endangered Species Act Quirk" for Law360. This piece examines ...

On April 15, 2020, the U.S. District Court for the District of Montana issued an order that could impact energy and development projects across the United States. The court granted partial summary judgment in favor of plaintiff the Northern Plains Resource Council (“NPRC”) in a case concerning challenges to the Keystone XL Pipeline.  While the case mostly focused on the permitting for this particular pipeline, the nature of the claims raised resulted in broader implications for nationwide permit (“NWP”) 12, an important nationwide permit issued by the U.S. Army Corps of ...

On April 8, 2020 the U.S. Fish and Wildlife Service (Service) announced its next step in conservation of the Monarch butterfly (Danaus plexippus plexippus): finalization of the Nationwide Candidate Conservation Agreement for Monarch Butterfly on Energy and Transportation Lands (Monarch CCAA/CCA). The Monarch CCAA/CCA functions as both a candidate conservation agreement with assurances (CCAA) covering non-federal lands and a candidate conservation agreement (CCA) covering federal lands.

Authorized by Endangered Species Act (ESA) regulations, CCAAs are agreements ...

Many projects require federal incidental take authority due to impacts on species listed under the federal Endangered Species Act (“ESA”). Depending upon the species, this federal take authority is obtained either from the U.S. Fish and Wildlife Service (“USFWS”) or National Marine Fisheries Service (“NMFS”). These agencies provide take authority either through a Section 7 (federal consultation) incidental take statement or Section 10 (Habitat Conservation Plan) incidental take permit. These authorizations almost always require the permittee to undertake ...

Recently, Lyn Clancy, Managing Associate General Counsel and Senior Policy Advisor for the Lower Colorado River Authority, and I presented on the topic of Endangered Species and Water Supply at the State Bar of Texas’ Changing Face of Water Law Conference in San Antonio. Issues of water supply and delivery continue to be a hot topic nationwide, including in Texas, and supply and delivery projects often intersect with the need to address species of plants and wildlife listed under the federal Endangered Species Act (ESA).

The presentation included several primary takeaways ...

On February 5, 2020, the National Marine Fisheries Service (NMFS) issued its 12-month finding on the petition to list summer-run steelhead in Northern California (Oncorhynchus mykiss irideus) as endangered under the Endangered Species Act (ESA), concluding that listing is not warranted because the summer-run steelhead does not qualify as a distinct population segment of the Northern California steelhead. Despite the negative finding, the summer-run steelhead is still protected under the ESA. How is that possible, you ask?

Simple, I say. The summer-run and winter-run ...

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 ...