Endangered Species Law & Policy

Endangered Species Act (ESA) administration has seen significant shifts during the past decade, including changes to ESA implementing regulations, policies and guidance and a number of significant decisions by federal courts, including the U.S. Supreme Court. This post provides a brief overview of important recent developments and what we can expect in the near future.

Recent Developments in ESA Administration

Vacatur of Certain Consultation Regulations under ESA Section 7:

On March 30, 2026, the U.S. District Court for the Northern District of California vacated certain ...

On April 3, 2026, the final rescission of the U.S. Fish & Wildlife Service and National Marine Fisheries Service (together, Services) definitions of the term “harm” from their respective Endangered Species Act (ESA) implementing regulations arrived at the Office of Information and Regulatory Affairs (OIRA) for E.O. 12866 review. E.O. 12866 requires federal agencies submit “significant” proposals to OIRA prior to issuance in order to ensure, among other things, that such proposals analyze costs and benefits, and avoid conflicting policies.  There is no deadline by ...

On April 17, 2025, the U.S. Fish & Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published a notice in the Federal Register proposing to rescind the Services’ respective definitions of “harm” under the Endangered Species Act (ESA) (Proposed Rule). The notice indicates the Services will accept comments on the Proposed Rule until May 18.

Section 9 of the ESA prohibits “take” of endangered species and the Services have extended the “take” prohibition, by regulation, to many species listed as threatened under the ...

On July 10, 2023, Governor Newsom signed Senate Bill 147 (SB147) into law, amending California’s “fully protected species” statutes. These laws were enacted in 1970 and currently protect 37 species native to California, ranging from the North Pacific right whale (Eubalaena japonica) to the salt marsh harvest mouse (Reithrodontomys raviventris). The amendments enacted by the legislature and signed into law by the Governor create a temporary, 10-year permitting regime that allows proponents of a limited, defined set of projects to pursue authorization from the ...

In a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim.  Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012).  Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead ...