Posts tagged ESA.
Unified Agenda Forecasts Proposed and Final Listings and Critical Habitat Designations for Species Found in Eastern States

As previously reported, on December 6, the Biden Administration published the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), outlining the various regulatory and deregulatory actions the Biden Administration plans to take in the near future. Among the Unified Agenda entries are numerous U.S. Fish and Wildlife Service (Service) actions to propose or finalize endangered and threatened species listings and critical habitat designations under the Endangered Species Act (ESA). Below is a sampling of potential species listings and critical ...

Unified Agenda Forecasts Anticipated Timing of ESA Regulations

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months. This most recent iteration of the Unified Agenda is notable in that it represents the slate of actions the Biden Administration hopes to complete in advance of a potential change in administrations … 

Western States Will See Species Listings, Critical Habitat Designations According to Unified Agenda

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which lists the regulatory and deregulatory actions that federal administrative agencies—including the U.S. Fish and Wildlife Service (Service)—plan to take in the coming year. According to the Unified Agenda, the western United States can expect a number of proposed and final rules to list species as threatened or endangered under the Endangered Species Act (ESA) and to designate critical habitat ...

Federal Court Dismisses Fishing Industry Challenge to Massachusetts Offshore Wind Project

On Thursday, October 12, 2023, Judge Indira Talwani of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of the United States Department of the Interior and Vineyard Wind, and denied summary judgment to the plaintiffs in two cases challenging federal authorizations for the Vineyard Wind project: Seafreeze Shoreside, Inc. v. U.S. Department of Interior (Seafreeze) and Responsible Offshore Development Alliance v. U.S. Department of Interior (RODA). In both cases, the plaintiffs sought to overturn the federal approvals for the ...

On August 11, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to delist the Apache trout (Oncorhynchus apache) under the Endangered Species Act (ESA) due to the species’ recovery.  The Apache trout, the state fish of Arizona, is a species of freshwater fish that is found primarily in the mountain region of southeast Arizona.  This species was initially listed as an endangered species under the ESA in 1967.  Then, in 1975, the Service downlisted the species to threatened status.  The ESA defines a threatened species as one that is “likely to become ...

Critical Habitat Proposed for Sacramento Mountains Checkerspot Butterfly

On August 10, 2023, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly (Euphydryas Anicia cloudcrofti) under the Endangered Species Act. The proposed critical habitat designation encompasses 1,636.9 acres of land in the Sacramento Mountains in Otero County, New Mexico, and follows the Service’s January 2023 final rule listing the species as endangered.

As explained in the proposed rule, the Service considered physical and biological features “essential to the ...

Service Proposes to List Two Mussel Species and Designate Critical Habitat in Texas

On July 25, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list two mussel species, the Salina mucket (Potamilus metnecktayi) and Mexican fawnsfoot (Truncilla cognata), as endangered under the Endangered Species Act (ESA). The Service also proposed to designate critical habitat for these species under the ESA. The proposed critical habitat for the Salina mucket would amount to approximately 200 river miles in the Texan counties of Brewester, Terrell, and Val Verde, and the proposed critical habitat for the Mexican fawnsfoot would amount to ...

U.S. Fish and Wildlife Service Lists Cactus Ferruginous Pygmy-Owl as Threatened with a 4(d) Rule

On July 20, 2023, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) (“Owl”) as a threatened subspecies with a 4(d) rule under the Endangered Species Act (ESA). The 4(d) rule prohibits the same activities prohibited for endangered species, but allows exemptions for certain education and outreach activities permitted under a Migratory Bird Treaty Act permit, surveying and monitoring in Arizona under a state scientific activity permit, and habitat restoration and enhancement ...

U.S. Fish and Wildlife Service Issues Revised Mitigation Policies

On May 15, 2023, the U.S. Fish and Wildlife Service (Service) issued two mitigation policies: one titled “Mitigation Policy” and another titled “Endangered Species Act Compensatory Mitigation Policy.” The Mitigation Policy provides a framework to inform Service mitigation procedure and policy, while the Endangered Species Act (ESA) Compensatory Mitigation Policy provides guidance on implementation of the ESA through compensatory mitigation mechanisms. The Service states that both policies are intended as guidelines for Service personnel to follow when ...

Massachusetts Court Rejects Endangered Species Act Challenge to Offshore Wind Project

On May 17, 2023, the federal District Court for the District of Massachusetts granted summary judgment in favor of the United States Bureau of Ocean Energy Management (BOEM) and Vineyard Wind and denied summary judgment to the plaintiffs in the case of Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, 21-cv-11390 (Talwani, J.). This is the first federal court decision upholding, on the merits, the federal government’s approval of a commercial-scale offshore wind project. There are three other cases pending that also seek to block the construction ...

Ninth Circuit Rules Service Improperly Designated Occupied, Unoccupied Critical Habitat for Jaguar

On May 17, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. 20-15654), a case in which a mining company challenged the U.S. Fish and Wildlife Service’s (Service) designation of certain areas in southern Arizona as critical habitat for the jaguar (Panthera onca) under the Endangered Species Act (ESA). The Ninth Circuit upheld the district court’s ruling that the Service improperly designated the challenged area as occupied critical habitat. With respect to the ...

U.S. Fish and Wildlife Service Publishes Updated National Listing Workplan

This month, the United States Fish and Wildlife Service (Service) published the latest update to its National Listing Workplan (Workplan). This update to the Workplan is the Service’s latest since March 2022 and projects the anticipated timeline for the agency’s listing-related decisions over the next five years (2023-2027). In general, the Workplan estimates the Service’s publication dates for various findings and publications, including but not limited to 12-month findings, species status reviews, proposed listing determinations and critical habitat ...

U.S. Fish and Wildlife Service Proposes Revised Critical Habitat Designation for Rufa Red Knot

On April 13, 2023, the United States Fish and Wildlife Service (“Service”) published a proposed rule to revise the critical habitat designation for the rufa red knot (Calidris canutus rufa). The red knot is a shorebird that migrates annually between the Canadian Arctic and wintering regions to the south, including the Southeast United States, the Northeast Gulf of Mexico, northern Brazil, and Tierra del Fuego at the southern tip of South America. During both northbound (spring) and southbound (fall) migrations, red knots use key staging and stopover areas to rest and feed.  

The ...

Service Declines to List Coyote on Basis of Resemblance to Endangered Mexican Wolf

On April 3, the U.S. Fish and Wildlife Service (Service) rejected a petition filed by a group of environmental organizations under section 4(e) of the Endangered Species Act (ESA) to list the coyote (Canis latrans) as an endangered species due to its similarity of appearance to the endangered Mexican wolf (C. lupus baileyi). Section 4(e) of the ESA gives the Service the ability to list a species on the basis that its “similarity of appearance” to an endangered or threatened species imperils the protected species’ survival and recovery.

In the petition, the environmental ...

Federal Court Allows Center for Biological Diversity to Continue Large ESA Lawsuit Against U.S. Fish and Wildlife Service

Last week, the U.S. District Court for the District of Columbia issued a ruling allowing the Center for Biological Diversity (CBD) to continue pursuing its large Endangered Species Act (ESA) lawsuit against the U.S. Fish and Wildlife Service (Service) and the Department of the Interior.

The underlying lawsuit, filed in 2019, alleges that the Service violated the ESA by failing to timely publish 12-month findings on nearly 200 listing petitions, final listing determinations for six species, and designations of critical habitat for four species.  In response, the Service filed a ...

California Court Refuses to Dismiss ESA Challenge to Corps’ Operation of Coyote Valley Dam on Russian River

Recently, the United States District Court for the Northern District of California refused to dismiss a lawsuit filed by a concerned citizen against the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service (NMFS) alleging Endangered Species Act (ESA) violations in connection with the Corps’ operation of the Coyote Valley Dam on the Russian River in Northern California. The court opined that federal defendants cannot avoid having to defend their prior actions simply by initiating the consultation process under section 7(a)(2) of the ESA, and the equities ...

U.S. Fish and Wildlife Service Again Finds Listing of Joshua Trees Not Warranted

On March 9, the U.S. Fish and Wildlife Service (Service) issued its 12-month finding that listing Joshua trees (Yucca brevifolia and Y. jaegeriana) as endangered or threatened species under the Endangered Species Act (ESA) is not warranted. The 12-month finding was made to comply with a September 20, 2021 court-ordered remand of the Service’s previous “not warranted” finding in August 2019.

In September 2015, WildEarth Guardians submitted a petition to list the Joshua trees as threatened and, if applicable, designate critical habitat for the species. The Service issued ...

Service Proposes to Overhaul ESA Permitting Regulations

On February 9, 2023, the U.S. Fish and Wildlife Service (Service) published proposed revisions to its regulations governing incidental take and enhancement of survival permitting under Endangered Species Act (ESA) section 10.

If finalized, the regulations would do away with the distinction between candidate conservation agreements with assurances and safe harbor agreements, clarify that incidental take permits no longer need to have a federally listed species as the “lead” species, codify aspects of the agency’s five-point policy that provide detail on the necessary ...

Ninth Circuit Remands 2019 Registration of Sulfoxaflor Back to EPA

On December 21, 2022, the U.S. Court of Appeals for the Ninth Circuit ruled that the Environmental Protection Agency’s (EPA) 2019 registration of the pesticide “sulfoxaflor” violated the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by unconditionally expanding allowed uses of the pesticide to blooming crops and removing certain restrictions. The court held that the agency violated the ESA by not making an “effects” determination to trigger “consultation” with a wildlife agency and violated FIFRA by failing ...

Court Sends Endangered Species Act Regulations Back to the Agencies

On November 16, 2022, the U.S. District Court for the Northern District of California (District Court) remanded three sets of Endangered Species Act (ESA) regulations promulgated in 2019 under the Trump administration back to the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) for reconsideration. The three regulations addressed: how species are listed and delisted and critical habitat designated under ESA section 4; interagency consultation under ESA section 7; and a final rule repealing USFWS’s blanket ESA ...

On August 23, 2022, the U.S. Fish and Wildlife Service (Service) issued a notice in response to petitions seeking to list, delist, or revise the critical habitat of four species under the Endangered Species Act (ESA). The Service found the petitions to list the Fish Lake Valley tui chub (Siphateles bicolor ssp. 4) and to delist the southern sea otter (Enhydra lutris nereis) “present substantial scientific or commercial information indicating that the petitioned actions may be warranted,” and are therefore initiating status reviews to determine whether to list and delist the species, respectively. …

USFWS Issues 12-month Findings on Chipmunk, Moss, Butterflies, and Springsnails

This week, the U.S. Fish and Wildlife Service (USFWS) issued three separate notices in the Federal Register concerning the agency’s 12-month findings on a number of petitions to list various wildlife and plants under the Endangered Species Act (ESA).

First, the USFWS announced a positive 12-month finding on a petition to list the Peñasco least chipmunk (Neotamias minimus atristriatus), a small mammal from New Mexico.  The USFWS proposes to list the Peñasco least chipmunk as an endangered species under the ESA and to designate approximately 6,574 acres of land as critical ...

Congress Urges Action on Monarch

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 ...

ABA Publishes Third Edition of Endangered Species Act Treatise

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 ...

SCOTUS Won’t Wade Into the Chicken Coop

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 ...

ESA Implementation Thrown Into Flux

On June 4, 2021, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act (ESA) finalized under the prior administration. The U.S. Fish and Wildlife Service (Service) has not yet published these proposed rules in the Federal Register, nor has the Service provided the exact dates when it intends to publish the proposed rules.

In its announcement, the Service indicates its intent to rescind regulations governing how the Service conducts critical habitat exclusion analyses under ESA section 4(b)(2) and how ...

Biden Administration Asks Supreme Court to Reject Challenge to ESA Rule

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 ...

D.C. Circuit Shuts Down Challenge to Species Status Assessments

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 Chicken Saga Continues

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 ...

Service Finds Salamanders Do Not Warrant Endangered Species Act Protection

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 ...

Six Island Species to be Removed from ESA Protections

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 ...

Critical Habitat Designation Reduced for Northern Mexican Gartersnake

This week, the United States Fish and Wildlife Service ("Service") published a final rule designating critical habitat for the northern Mexican gartersnake (Thamnophis eques megalops) under the Endangered Species Act (“ESA”).  The final critical habitat designation includes a total of approximately 20,326 acres of land located in Arizona and New Mexico. 

The northern Mexican gartersnake, an olive-colored snake identifiable by a pattern of vertical yellow stripes and paired black dots lining its body, typically occurs in shallow wetlands and aquatic habitats, such ...

Is The God Squad Heading Toward Extinction?

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 ...

NMFS Proposes Rule to Reduce North Atlantic Right Whale Entanglements in Fishing Gear

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” ...

Tiger King Lawsuits Take 2

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 ...

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 ...

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 ...

WEBINAR: Adapting Your Linear Infrastructure Projects to Changing Regulatory Frameworks

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...

Tiger King Shines Light on an Endangered Species Act Quirk

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 ...

This week, the U.S. Fish and Wildlife Service (USFWS) announced its opening of 5-year status reviews for 25 southeastern species and 10 southwestern species. Among the species included in the status review are the dusky gopher frog (Lithobates sevosus), Jollyville Plateau salamander (Eurycea tonkawae), and many other species of fish, wildlife, and plants. Five-year status reviews are required under section 4(c)(2)(A) of the Endangered Species Act and serve to inform USFWS whether a given species warrants a change in listing status (e.g., de-listing or a change from threatened ...

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 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 ...

Settlement Agreement Requires Grizzly Bear Status Review

The U.S. District Court for the District of Montana has approved a partial settlement between the Center for Biological Diversity (CBD) and the U.S. Fish and Wildlife Service (Service) requiring that the Service complete and post a status review of the lower-48 grizzly bear (Ursus arctos horribilis) populations no later than March 31, 2021.  Earlier this year, CBD filed a lawsuit challenging the Service’s alleged failure to update a 1993 federal recovery plan for the species.  The partial settlement disposes of CBD’s first claim for relief, which alleged that the Service had ...

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 ...

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 May 3, 2019, the U.S. Fish and Wildlife Service (Service) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (ESA) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year ...

Over the last few weeks, besides proposing to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Species (which we covered here), the U.S. Fish and Wildlife Service (Service) has made a few other moves related to the Endangered Species Act (ESA).

On Monday, April 8, 2019, the Service published a final rule, removing one species from the List of Endangered and Threatened Species, adding 16 separate species to the list, and updating the existing entries for 17 more species.  Specifically, the Service added the following species to the ESA List: Gulf grouper ...

Posted in Publications

In an article published online this week in BioScience, the American Institute of Biological Sciences' scholarly journal, Drs. Dennis Murphy and Paul Weiland contribute to the literature on independent scientific review, focusing on the review of federal agency determinations under the Endangered Species Act. They describe the types of decisions that can benefit from independent scientific review.

They also describe past shortcomings in undertaking such reviews, relying on specific examples from past reviews. Identification of such shortcomings feeds into the principal ...

On January 31, 2019, the U.S. Fish and Wildlife Service (USFWS) announced plans to amend up to 182 Endangered Species Act (ESA) recovery plans, which potentially cover over 305 animal and plant species, over the next year. These amendments will revise each recovery plan to include quantitative recovery criteria as part of the Department of the Interior’s Agency Priority Performance Goals. USFWS kicked off this 12-month push by releasing a notice of availability of 26 draft recovery plan amendments ...

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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