Ninth Circuit Orders NMFS To Reassess Dam Decisions

In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the dams; (2) the Corps’ issuance of licenses to operate existing water diversions and hydroelectric facilities, which it claimed violated the Endangered Species Act by authorizing activities that would take listed fish without an incidental take statement; and (3) NMFS and the Corps’ failure to reinitiate consultation because of allegedly changed circumstances. As we previously reported, the District Court rejected all of FOR’s claims.

The Ninth Circuit found that NMFS’s treatment of the dams as part of the “environmental baseline” was arbitrary and capricious. Prior to 2014, NMFS had treated the dams as part of the “agency action.” Thus, NMFS was required to provide a “reasoned explanation” for considering the dams to be part of the “environmental baseline” in the 2014 BiOp and LOC. The Ninth Circuit found that NMFS failed to adequately explain why it changed its approach, and remanded the BiOp and LOC to NMFS to “reassess.”

The Ninth Circuit also remanded to the district court the question of whether the Corps was taking threatened fish by licensing and granting easements to third parties to operate water diversions and hydroelectric facilities, because the district court had not fully analyzed this claim.  However, the Ninth Circuit affirmed the district court’s holding that NMFS and the Corps were not required to reinitiate consultation based on new information, because FOR failed to identify how new information revealed effects that had not been previously considered in the 2014 BiOp and LOC, and because FOR failed to comply with the requirement to provide NMFS with 60 days’ notice of this claim.


FWS Ordered to Explain Rio Grande Cutthroat Trout Decision

National Park Service photograph of a Rio Grande Cutthroat Trout

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 priority listing actions.  In evaluating the viability of trout populations, the Service found that only eight populations were “secure,” based on (1) stream length, (2) absence of non-native fish, and (3) population size of at least 2,500 Rio Grande cutthroat trout.

Continue Reading

Does the Federal Endangered Species Act Protect Zoo Animals?

Yes, if the animal is designated as threatened or endangered under the federal Endangered Species Act (ESA). In a recent federal court decision out of Massachusetts, a United States District Court was called on to decide whether a local zoo’s treatment of two endangered Asian elephants amounted to “harm” or “harassment” in violation of the “take” prohibition under section 9 of the ESA.

The two elephants, Emily and Ruth, were longtime residents of the Buttonwood Park Zoo in the City of New Bedford, Massachusetts. In fact, according to the decision, Emily and Ruth are “among the oldest living Asian elephants in a zoo setting in America.” The lawsuit was initiated by an individual plaintiff under the citizen suit provision of the ESA. The plaintiff alleged that the zoo’s treatment of Emily and Ruth is “behind the curve in every respect,” and thus amounted to unlawful “harm” or “harassment” under the ESA. Based on the evidence that was presented, however, the district court found “the contrary to be true.”

The district court began its decision by laying out the legal framework. Specifically, quoting heavily from the U.S. Fish & Wildlife Service’s definitions of “harm” and “harass,” the court explained that for the plaintiff to prevail she had to prove either that (i) an action taken by the zoo actually killed or injured the elephants, or (ii) that the zoo’s intentional or negligent conduct created a likelihood of injury by annoying the elephants to such an extent as to significantly disrupt normal behavioral patterns, and the conduct is not a generally accepted and Animal Welfare Act-compliant animal husbandry practice.

After reviewing the facts, and acknowledging that the plaintiff made some potentially concerning allegations, the district court found that the plaintiff failed to satisfy her evidentiary burden. For example, the district court found that Ruth and Emily are receiving adequate veterinary care, have adequate food and shelter, and that while Emily and Ruth are the only elephants at the zoo, and “may well feel lonely at times, the evidence does not establish that the City’s actions have significantly disrupted their normal behavioral patterns in an injurious manner.” Accordingly, the court entered judgment against the plaintiff.

Notably, the district court cautioned that its decision was not addressing the larger societal issue of whether keeping elephants in captivity was appropriate, given that “the Fish and Wildlife Service has authoritatively interpreted [the ESA] and in conjunction with the Animal Welfare Act, contemplates that endangered species may be kept in captivity.”

Services Delay New Consultation Regulations

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 regulations would be delayed until October 28, 2019, in order to allow the Services additional time to train their staff and coordinate with affected federal agencies on the new requirements.  Nossaman’s previous reporting on the revised ESA regulations can be found here.


Fish and Wildlife Service Delists Foskett speckled dace

On September 13, 2019, the U.S. Fish and Wildlife Service (Service) posted a final rule removing the Foskett speckled dace (Rhinichthys osculus ssp.) from the federal List of Endangered and Threatened Wildlife.  The dace, which was listed under the Endangered Species Act (ESA) as a threatened species in 1985, is being removed from the List of Threatened and Endangered Species on the basis of recovery.  In its final notice, the Service indicates that the threats to the dace have been “eliminated or reduced to the point where [the dace] no longer meets the definition of an endangered or threatened species” under the ESA.  The Service’s final rule will become effective on October 15, 2019.

The dace is a small fish that is native to Oregon, primarily inhabiting the Warner Basin and Alkali Subbasin, and was subject to a 1998 recovery plan that encompassed both the dace and two other native fish species that live within those two water bodies.  In its original listing decision, the Service noted that the primary threats to the dace were  livestock use of its habitat, mechanical modification of its habitat, and pumping of groundwater and lowering of the water table. The 1985 listing decision also noted that the dace lacked sufficient state protections.  Although it was listed at the state level as a fully protected species, Oregon law did not provide for critical habitat and there was no recovery plan or management plan for the dace.   Finally, the original 1985 listing determination indicated that the potential introduction of exotic species, the species’ small and relatively isolated population size, and the lack of connectivity to other water bodies were other factors that threatened the species.  While some of these threats remain, the Service’s final rule concludes that the Bureau of Land Management and the Oregon Department of Fish and Wildlife’s actions in the years since 1985 have significantly decreased the threats to the dace to the point where it is no longer in danger of becoming endangered or extinct in the foreseeable future.  The final rule also concludes that climate change is not a significant threat to the species, because the dace prefers deeper portions of the Foskett springs, which are less likely to be impacted by increased surface temperatures.

The Service’s decision to delist the dace followed a routine five-year review of the species’ status, as required by the ESA.  The five-year review revealed that the species’ population has increased in the years since its listing, and that the livestock and water use threats that once existed have significantly decreased over that time.  After the delisting rule goes into effect on October 15, the Service will continue monitoring the status of the species with the assistance of Oregon state-based partners for a period of five years.

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.

According to FWS, the Yellowstone bison, a subset of Plains bison in and around Yellowstone National Park, are the oldest and largest wild population of Plains bison remaining. They comprise the last bison herd in the United States descending from a continuously wild herd.

Continue Reading

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

Yucca brevifolia

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).  These decisions came on the heels of the agency’s publication of proposals to, among other things, change the way these types of species listing decisions are made.  (Our earlier reporting on that topic is here.)

The FWS’ decision not to list the Joshua tree occurred under the current ESA regulations, not the newly proposed ones.  An environmental non-profit organization, Wild Earth Guardians, petitioned the FWS in September 2015 to list the Joshua tree as threatened and, if applicable, designate critical habitat for the species.  FWS conducted an initial 90-day review of the petition, determining that the petition presented substantial scientific or commercial information indicating that listing might be warranted.  FWS then undertook a more detailed 12-month review of the status of the Joshua tree.

In its 12-month finding following its species status review, the FWS noted that the primary stressors to the two species of Joshua tree include wildfire, invasive plants, the effects of climate change, and habitat loss.  The FWS concluded that while these stressors are affecting individual Joshua trees, there was no evidence the trees are experiencing the stressors at a population-level or species-level scale.  The FWS concluded that the Joshua tree is not in danger of extinction or likely to become so within the foreseeable future, citing, among other things, (1) the long-lived nature of the species, (2) the large ranges and distributions of the species, and (3) the fact that Joshua trees mostly occur on Federal lands.

Concurrently with its 12-month finding on the Joshua tree, FWS also made negative 12-month findings on petitions to list three species of mussels (Cyclonaias aurea, Cyclonaias houstonensis, and Alasmidonta varicosa), the tricolored blackbird (Agelaius tricolor), the yellow-banded bumble bee (Bombus terricola), the Arapahoe snowfly (Arsapnia arapahoe), and the seaside alder (Alnus maritima).  In a separate notice, the FWS also made positive 90-day findings on petitions to list the lake sturgeon (Acipenser fulvescens) as endangered or threatened and to reclassify the Gila topminnow (Poeciliopsis occidentalis occidentalis) from endangered to threatened, along with a negative 90-day finding on a petition to list the Siskiyou Mountains salamander (Plethodon stormi).  FWS will now conduct additional review on the lake sturgeon and the Gila topminnow, and has asked the public to provide any new scientific or commercial data or other information concerning the statuses of, or threats to, those species.

ESA Regulatory Reform Package Crosses the Finish Line

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register.

On July 25, 2018, USFWS published a proposal to remove that agency’s blanket prohibition on “take” of species listed as threatened (hereafter, the Blanket 4(d) Rule) and to require species-specific rules addressing take.  The same day, USFWS and NMFS published proposals to revise regulations governing species listings, delistings, and designation of critical habitat (listing rules), and regulations governing interagency consultations under ESA section 7 (consultation regulations).

The Services received tens of thousands of comments on the proposed regulatory revisions, and the proposed revisions have been under review with the Office of Information and Regulatory Affairs (OIRA) pursuant to Executive Order (EO) 12866  since December 2018. On August 2, 2019, OIRA completed its EO 12866 review of USFWS’ revision to the Blanket 4(d) Rule, and the final rule was released to be published in the Federal Register.  On August 9, OIRA completed its EO 12866 review of the Services’ revisions to their listing rules and consultation regulations.

The ESA regulatory reform package arguably represents the most significant change in ESA implementation in recent memory. The final rules have been submitted to the Federal Register, but no publication date has been given.  Additional updates on this topic will appear here, when available.

USFWS Moves Towards Including Qualitative Criteria in All Species Recovery Plans


The Palos Verde blue butterfly is one of the species affected by the proposed Recovery Plan revisions. (Jane Hendron/USFWS) 

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. 


Recovery Plans are intended to guide and coordinate conservation efforts for listed species by recommending research and management actions.  ESA section 4(f) requires each recovery plan to incorporate “objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list.”  16 U.S.C. § 4(f)(1)(B)(ii).  The Department of the Interior has established an Agency Priority Performance Goal of 100 percent of all USFWS recovery plans having quantitative criteria for identifying when a species has recovered by September 30, 2019.  As of June 2019, 70 percent of a total of 567 recovery plans contain qualitative criteria indicating when downlisting or delisting is warranted.  USFWS indicated that it is unlikely to meet its goal by the fast-approaching deadline “due to the size and complexity of the task, statutory requirements to provide opportunity for the public to review and comment, and extended clearance process associated with Federal Register notices.”  However, USFWS continues to issue quantitative criteria updates at a brisk pace, and Nossaman will continue to track these efforts.  Our prior reporting on these efforts can be found here and here.