ESA Law Alert: Recent Fish and Wildlife Service Decisions Affecting Businesses in California and the Pacific Northwest

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The U.S. Fish and Wildlife Service ("Service") recently issued a handful of decisions under the Endangered Species Act ("ESA") that are relevant to the Pacific Northwest and Northern California. These decisions, among others, are the product of a July 2011 settlement agreement between the Service and environmental advocacy groups that requires the Service to conclude the review of 757 petitioned species by 2018. Summarized below are the Service's recent ESA decisions regarding the Red Tree Vole, 26 mollusk (snail and slug) species, and the Lake Sammamish Kokanee.

Under the ESA, a species is listed as "endangered" if it "is in danger of extinction throughout all or a significant portion of its range" or "threatened" if it is "likely to become an endangered species within the foreseeable future." Once a species has been petitioned for listing, the Service must, "to the maximum extent practicable," make a determination within 90 days as to whether the petition presents sufficient information indicating that the listing may be warranted. After the Service determines that a listing may be warranted, it must issue a finding within 12 months that: (i) a listing is warranted (in which case a proposed listing rule is issued); (ii) a listing is not warranted; or (iii) a listing is "warranted but precluded" by higher priority actions.

Red Tree Vole

On October 13, 2011, the Service announced that the listing of the North Oregon Coast distinct population segment ("DPS") of the Red Tree Vole is warranted but precluded by higher priority actions. When the Service finds that a listing is warranted but precluded, it places the species on a candidate list and commits to completing the listing as priorities allow, with subsequent reviews of the species' status every 12 months. This decision delays the publication of a proposed rule listing the North Oregon Coast Red Tree Vole DPS as "threatened" or "endangered" under the ESA. Red Tree Voles are found in conifer forests or in mixed forests of conifers and hardwoods and, consequently, a listing of this DPS may have ramifications for the timber industry.

26 Snail and Slug Species

On October 5, 2011, the Service initiated a status review to determine whether the listing of 26 snail and slug species as threatened or endangered is warranted under the ESA. The species under consideration live in western Washington, Oregon, and Northern California. Fourteen of the petitioned species and subspecies are aquatic, and 12 are terrestrial (10 land snails and two slugs). An ESA listing of any of these species could have significant implications for logging, mining, grazing, controlled burning, road construction, agriculture, development, and water use activities near areas inhabited by the species. Under the ESA, the Service is now required to issue a listing determination within the next 12 months. The Service's status review of the mollusks follows a 2008 petition by the Center for Biological Diversity, Oregon Wild, and three other environmental nonprofit groups.

Lake Sammamish Kokanee

On October 4, 2011, the Service issued a decision in which it declined to list the Lake Sammamish Kokanee under the ESA, finding that the population did not satisfy applicable DPS criteria. To qualify as a DPS, a population segment must be isolated and genetically significant with regard to the remainder of the species, among other requirements. The Service found that although the Lake Sammamish Kokanee population "is discrete due to marked separation as a consequence of physical, ecological, physiological, or behavioral factors," there is insufficient information showing that it is genetically significant for the preservation of the species. Accordingly, the Service found that the Lake Sammamish Kokanee is not a species subunit that qualifies for listing under the ESA. Stoel Rives has a broad depth of experience covering all aspects of the ESA, including navigating the ESA listing process and representing clients in litigation involving significant ESA listing petitions.

If you have any questions about the issues raised in this alert, or other legal matters relating to the ESA, please contact a key contributor.

Key Contributors

Barbara D. Craig
Ryan P. Steen
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