On November 13, two advocacy organizations submitted a notice of intent to sue the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The notice letter alleges that the September 18, 2023 Biological Opinion (BiOp) issued by NMFS for the Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) because it fails to adequately analyze and mitigate the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis). …  ..read more

On October 31, 2023, the U.S. Fish and Wildlife Service (Service) proposed listing the oblong rocksnail (Leptoxis compacta) as an endangered species under the Endangered Species Act (ESA). The freshwater snail exists only in the Cahaba River in central Alabama and subsists on algae growing on the riverbed. The oblong rocksnail was declared extinct in 2000 after several decades without a confirmed specimen observation and multiple river surveys. In 2011, a population was discovered which inhabits a 5.6 river mile stretch of the Cahaba River about 10 miles south of Birmingham  ..read more

On Thursday, October 12, 2023, Judge Indira Talwani of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of the United States Department of the Interior and Vineyard Wind, and denied summary judgment to the plaintiffs in two cases challenging federal authorizations for the Vineyard Wind project: Seafreeze Shoreside, Inc. v. U.S. Department of Interior (Seafreeze) and Responsible Offshore Development Alliance v. U.S. Department of Interior (RODA). In both cases, the plaintiffs sought to overturn the federal approvals for the  ..read more

On September 30, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the U.S. Fish and Wildlife Service (Service) in a case challenging the agency’s final rule downlisting the American burying beetle (Nicrophorus americanus) to “threatened species” status under the Endangered Species Act (ESA). In its opinion, the court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle to threatened status despite noting climate change  ..read more

On October 3, 2023, the U.S. Fish and Wildlife Service (Service) published two proposed rules to list three species—the northwestern pond turtle (Actinemys marmorata), the southwestern pond turtle (Actinemys pallida), and the short-tailed snake (Lampropeltis extenuata)—as threatened under the Endangered Species Act (ESA). The proposed listings also include proposed 4(d) rules for each species. However, according to the Federal Register notices, the Service concluded that designating critical habitat for each of the three species is not currently determinable, and  ..read more

On Tuesday, September 26, President Biden vetoed two Republican-sponsored joint resolutions, S.J. Res. 9 and S.J. Res. 24, seeking to undo Endangered Species Act (ESA) protections for the lesser prairie-chicken (LEPC) (Tympanuchus pallidicinctus) and northern long-eared bat (NLEB) (Myotis septentrionalis) that became effective in January 2023. S.J. Res. 9 would have undone the U.S. Fish and Wildlife Service’s (Service) final rule listing the Northern distinct population segment (DPS) of the LEPC as threatened with a section 4(d) rule and the Southern DPS as endangered  ..read more

On August 29, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing two distinct population segments (DPS)—the North Feather and Central Coast DPSs—of the foothill yellow-legged frog (Rana boylii) (Frog) as threatened (Threatened DPSs) and two additional DPSs of the Frog—the South Sierra and South Coast DPSs—as endangered (Endangered DPSs) under the Endangered Species Act (ESA). In the preamble to the final rule, the Service indicated that designating critical habitat for all four DPSs of the Frog is not determinable at this time due to a lack  ..read more

On August 11, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to delist the Apache trout (Oncorhynchus apache) under the Endangered Species Act (ESA) due to the species’ recovery.  The Apache trout, the state fish of Arizona, is a species of freshwater fish that is found primarily in the mountain region of southeast Arizona.  This species was initially listed as an endangered species under the ESA in 1967.  Then, in 1975, the Service downlisted the species to threatened status.  The ESA defines a threatened species as one that is “likely to beco ..read more

On August 10, 2023, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly (Euphydryas Anicia cloudcrofti) under the Endangered Species Act. The proposed critical habitat designation encompasses 1,636.9 acres of land in the Sacramento Mountains in Otero County, New Mexico, and follows the Service’s January 2023 final rule listing the species as endangered. As explained in the proposed rule, the Service considered physical and biological features “essential to the  ..read more

On Friday, August 4, 2023, the United States District Court for the District of Massachusetts granted summary judgment in favor of the National Marine Fisheries Service (“NMFS”) in the case of Melone v. Coit et al, 21-cv-11171 (Talwani, J.). The Court found that NMFS complied with the Marine Mammal Protection Act (“MMPA”) in authorizing construction of the Vineyard Wind project despite its impacts on the North Atlantic right whale (Eubalaena glacialis), which is protected under the MMPA and the Endangered Species Act. …  ..read more