Endangered and Threatened Species Listing and Recovery
Endangered and Threatened Species Listing
Some of the Wildlife and Marine Resource Section’s most prominent litigation involves decisions whether to list species under the Endangered Species Act (“ESA”). Under the ESA, two federal agencies – the U.S. Fish and Wildlife Service (“FWS”) within the Department of the Interior and the National Marine Fisheries Service (“NMFS”) within the National Oceanic and Atmospheric Administration of the Department of Commerce – decide whether a given species should be listed as either “threatened” or “endangered.” “Endangered species” are those currently in danger of extinction, while “threatened species” are likely to become in danger of extinction within the foreseeable future. The Section has defended court challenges to many listing-related decisions by FWS and NMFS over the years, including the listing of the polar bear, the Pacific bearded seal, and the Gunnison sage-grouse. The Section also defends decisions to remove species from the list that have been found to be recovered and no longer in need of the protections of the ESA. The Section’s listing cases are fact-intensive and involve defense of the agencies’ scientific findings and expertise in assessing threats to species. The Section also handles litigation involving claims that the listing agencies have not timely acted on petitions to list additional species and has successfully settled or defended many such lawsuits in order to preserve the agencies’ listing priorities and other workload commitments.
Designation of Critical Habitat
Many endangered or threatened species have lost habitat due to human development, although other factors often contribute to their listing under the ESA. To address loss of habitat, Congress directed the listing agencies to designate “critical habitat” for ESA-listed species to the maximum extent prudent and determinable. Such designations do not establish a refuge or affect land ownership; rather, they identify habitat containing features important to the species or unoccupied habitat essential to the species’ conservation, which then receives consideration in connection with federal agency actions that may impact that habitat. In designating critical habitat, the listing agencies must consider economic and other impacts, and they may choose to exclude certain areas if the costs of designating an area outweigh the benefits, provided that the exclusion will not result in extinction. The Wildlife and Marine Resources Section has defended many critical habitat designations, including for the northern spotted owl, the dusky gopher frog, and the green sturgeon.
See a description of one of the Section’s more recent critical habitat cases involving the New Mexico Meadow Jumping Mouse.
Listed Species Recovery
Once a species is listed, the responsible listing agency also must prepare a recovery plan unless it determines that doing so will not benefit the species’ conservation. A recovery plan is a “road-map” or guidance document for both federal agencies and other entities, to provide direction for recovering the species with a set of criteria for determining when the species will be considered recovered. Recovery will be a long process for most species because their status as endangered or threatened results from threats occurring over many years. One management action that may be included in a recovery plan is to reintroduce a species into areas in the wild where it no longer exists under ESA Section 10(j). One such experimental population is the endangered Mexican wolf located in New Mexico and Arizona. As part of its active ESA listing and recovery docket, the Wildlife and Marine Resources Section handles litigation involving challenges to recovery plans or the listing agency’s failure to prepare a recovery plan for listed species and ESA Section 10(j) rulemakings addressing species reintroduction efforts.
More information about the ESA listing, critical habitat, and recovery planning efforts of FWS and NMFS are available at the agency links below. Under the ESA, FWS generally has authority over terrestrial and freshwater species, while NMFS has authority over marine species.