On Thursday, October 5, 2017, the U.S. Fish & Wildlife Service (“Service”) announced 12-month “not warranted” findings on petitions to list 25 species as endangered or threatened under the Endangered Species Act (“ESA”).  It is likely that the Service’s “not warranted” findings represent the Trump administration’s departure from the previous administration’s  90-day determinations wherein the Service found that the petitions contain substantial information that listing “may be warranted.”  For over half of the 25 species, the “not warranted” findings satisfy the terms of various settlement agreements with environmental organizations requiring the Service to propose listing or to publish 12-month findings by September 30, 2017.  Both settlement agreements requiring these 12-month findings were previously covered here and here.

Specifically, the Service found that listing the following 25 species under the ESA is “not warranted” at this time:

  • Pacific walrus (Odobenus rosmarus ssp. divergens)
  • Northern Rocky Mountains population of the fisher (Pekania pennant)
  • Bicknell’s thrush (Catharus bicknelli)
  • Oregon Cascades-California and Black Hills populations of black-backed woodpecker (Picoides arcticus)
  • Kirtland’s snake (Clonophis kirtlandii)
  • Barbour’s map turtle (Graptemys barbouri)
  • Florida Keys mole skink (Plestiodon egregius egregious)
  • Eastern population of the boreal toad (Anaxyrus boreas boreas)
  • Big Blue Springs cave crayfish (Procambarus horsti)
  • San Felipe gambusia (Gambusia clarkhubbsi)
  • 14 Nevada springsnail species (Pyrgulopsis deacon; Pyrgulopsis fausta; Pyrgulopsis avernalis; Pyrgulopsis carinifera; Trytonia clathrata; Pyrgulopsis coloradensis; Pyrgulopsis hubbsi; Pyrgulopsis merriami; Pyrgulopsis sathos; Pyrgulopsis lata; Pyrgulopsis marcida; Pyrgulopsis breviloba; Pyrgulopsis sublata; Pyrgulopsis peculiaris)
  • Great Sand Dunes tiger beetle (Cicindela theatina)

Two of the petitioned actions (woodpecker and gambusia) were found “not warranted” because the subject animal or plant was determined not to be a listable entity, (i.e., a species, subspecies, or distinct population segment) under the ESA.

The ESA requires the Service to make a determination whether a petition contains substantial scientific or commercial information that the petitioned action “may be warranted” within 90 days of receiving a petition to list a species as endangered or threatened.  Within 12 months after receipt of a petition for which a positive “may be warranted” 90-day determination has been made, the ESA requires the Service to publish a finding whether the petitioned action is “warranted,” “not warranted,” or “warranted but precluded” by other pending listing proposals.

For the 23 species eligible for listing under the ESA, the Service analyzed not just whether the species and its habitat is subject to a particular stressor, but how the species responds to the stressor to determine whether the stressor exerts downward pressure on the population warranting listing.  For example, stressors such as vegetation and soil disturbance from ungulate activity and recreation negatively affect the spring habitat of one Nevada springsnail species, the Spring Mountains pyrg.  However, because springsnail continue to occupy this impacted habitat at similar abundance levels across the species’ range comparable to past survey results, the Service determined that these stressors are not causing significant adverse effects to the species and therefore listing is “not warranted” at this time.

Where the Service was uncertain as to a stressor’s extent or degree of impact on a species, the Service concluded that it did not have reliable information to show that the stressor “could be sufficient to put the species in danger of extinction now or in the foreseeable future.”  For the walrus, the Service found that the lack of reliable information regarding the magnitude of the effect of and the species’ response to a reduction in sea ice availability precluded the Service from making a determination regarding whether a reduction in sea ice “could be sufficient to put the [walrus] in danger of extinction now or in the foreseeable future.”  The Service concluded that sufficient resources remain to meet the walrus’ physical and ecological needs now and into the future, justifying a “not warranted” finding.