On June 3, 2010, a federal court approved a settlement that requires the Fish and Wildlife Service to take final action on proposed listings for six penguin species and one distinct population segment in the next few months.  In response to a 2006 petition to list 12 species of penguins, in 2007 the Service found that there was enough evidence to conduct a status review for 10 of the 12.  In 2008, the Service issued three proposed rules to list seven of the 10 as threatened or endangered due to climate change and commercial fishing, among other factors.  (See 73 Fed. Reg. 77,264, 73 Fed. Reg. 77,303, and 73 Fed. Reg. 77,332 (PDF).)

The Center for Biological Diversity (CBD) and Turtle Island Restoration Network (TIRN) sued to compel the Service to take final action on the proposed rules after it failed to take action within a year of the proposed rulemakings as required under the Endangered Species Act.  According to CBD, "[w]arming oceans, melting sea ice, and fishery harvests have wreaked havoc on penguins’ food supply: Krill, an essential nutrient for penguins, whales, and seals, has declined by up to 80 percent since the 1970s over large areas of the Southern Ocean." 

If the Service adopts the three proposed rules, the African, yellow-eyed, white-flippered, Fiordland crested, Humboldt, erect-crested, and a distinct population segment of the southern rockhopper penguins will receive protection under the Act.  Section 7(a) of the Act and  implementing regulations require federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened.

CBD and TIRN have threatened to bring suit to compel the Service to list the emperor and northern rockhopper penguins, which had been included in the 2006 listing petition.