Faced With Notice Of ESA Violations, FWS Agrees To Reconsider Biological Opinion for Shaffer Mountain Wind Project

On November 3, 2011, we submitted a detailed notice letter on behalf of several conservation groups pointing out the serious scientific and legal errors with the U.S. Fish and Wildlife Service’s 2011 Biological Opinion to the U.S. Army Corps of Engineers, which would have allowed construction and operation of an industrial wind farm in the midst of a critical maternity colony of endangered Indiana bats.  In issuing its opinion, the Service ignored the views of the nation’s leading bat biologists who pressed the Service to consider alternatives to placing a project in this sensitive location, and also applied faulty population models in an effort to greenlight this project that will not only kill highly imperiled Indiana bats, but also golden eagles and migratory birds.  In light of our letter, the Service recently announced that it will reinitiate ESA consultation to consider new evidence before moving forward with a revised Biological Opinion.  In turn, the Corps has agreed to hold its decisionmaking in abeyance, pending the Service’s revised Biological Opinion.  Here are our notice letter, the FWS’s reinitiation letter, and the Corps’ reinitiation letter.

D.C. Circuit Hears Oral Argument on Flying Squirrel Appeal

On Tuesday, a three-judge panel of the D.C. Circuit Court of Appeals heard oral argument on whether the West Virginia Northern Flying Squirrel should remain protected by the Endangered Species Act (ESA).

The argument followed briefing on the government’s appeal of our victory on behalf of Friends of Blackwater and other conservation groups which restored ESA protections for the species. On appeal, the issue was whether the Fish and Wildlife Service was free to delist the squirrel without fulfilling the delisting/ recovery criteria the agency itself designated in squirrel’s recovery plan, or providing the public notice and an opportunity to comment on whatever new criteria the agency adopts.

On behalf of the plaintiffs, Jessica Almy argued that Congress specifically required development and implementation of delisting/ recovery criteria in species’ recovery plans to guide the agency’s determination of whether recovery has been achieved and the species should be delisted. Here, because the agency jettisoned the criteria in favor of less protective standards without allowing public notice and comment, the delisting was unlawful and the district court opinion should be affirmed. Read our brief here.

Full ESA Protections Restored for Three Endangered Antelope Species

Today, the U.S. Fish and Wildlife Service published a final rule, which vindicated our clients’ 2009 victory in the U.S. District Court for the District of Columbia that successfully overturned the Service’s unlawful attempt to grant blanket authorization to exotic wildlife ranches to breed and allow the canned hunting of three highly imperiled antelope species. The 2009 ruling found the Service’s action unlawful under the plain language of the Endangered Species Act, and today’s rule requires canned hunting operations to submit case-by-case permit applications to the Service to document whether and how their operations enhance the survival of the species before such entities can allow the endangered antelopes to be killed for profit. Such applications will be made available to the public for comment. The final rule can be found here.