Fish & Wildlife Service Finds Bay-Delta Longfin Smelt Warrant Protection Under The Endangered Species Act

The U.S. Fish and Wildlife Service (Service) recently announced a 12-month finding on a petition to list the San Francisco Bay-Delta population of longfin smelt as endangered or threatened under the Endangered Species Act (ESA), finding that the Delta population of longfin smelt warranted ESA protection. The Service’s April 2, 2012, Federal Register notice of its 12-month finding is available here.

The Bay-Delta longfin smelt is a small fish, averaging approximately four inches in length, which is found in the San Francisco Bay-Delta, including Suisun Marsh and San Pablo Bay. The population of Bay-Delta longfin smelt has declined significantly in recent years. The Service’s 12-month finding identified a variety of threats to the Bay-Delta longfin smelt population, including habitat modification and the introduction of non-native species.

The Service found that listing of the Bay-Delta longfin smelt under the ESA is warranted but listing is currently precluded by higher priority actions. The Service added the Bay-Delta longfin smelt to its candidate species list, under which its status will be reviewed annually. Candidate species do not receive protection under the ESA, so the 12-month finding will not impose any new requirements or restrictions to protect the longfin smelt. However, the longfin smelt species is listed as a threatened species under the California Endangered Species Act, and is thus protected under state law. The Service stated that is will develop a proposed rule to list the the Bay-Delta longfin smelt under the ESA as its priorites allow. Any future proposal to add longfin smelt to the federal list of threatened or endangered species would be subject to public review and comment.

For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.


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Petition Filed to List Gray Wolf under California Endangered Species Act

On March 12, 2012, the California Fish and Game Commission received a petition to list the gray wolf as endangered under the California Endangered Species Act. A copy of the petition may be found here. The petition, filed by the Center for Biological Diversity, Big Wildlife, the Environmental Protection Information Center, and the Klamath Siskiyou Wildlands Center, states:

The gray wolf is not currently listed as an endangered or threatened species under the California Endangered Species Act. The gray wolf is also absent from the California list of game animals. (See CA §250–479). As a result, the gray wolf does not fall under any regulatory scheme within the state, despite being a species that is native to California. Given the possibility that gray wolves are already naturally dispersing to California and have a high potential to do so in the near future, the California Department of Fish & Game must address this anomaly by listing the gray wolf as an endangered species and develop a management scheme for the protection of the gray wolf. Such an action would be consistent with the approach taken by the States of Oregon and Washington, both of which listed the gray wolf at a time when no individuals were presently located within their respective State boundaries.

For more information regarding this matter, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

California Fish And Game Commission May List American Pika Under CESA

California's Fish and Game Commission recently declared the American Pika a candidate species under the California Endangered Species Act (CESA).

The Commission had rejected an earlier petition to list the Pika as threatened or endangered, but will now take up to 12 months to reevaluate the biological data and determine whether listing the Pika under CESA is warranted. The American Pika is an alpine species that lives virtually above the tree line in the Sierra Nevada and other high mountain ranges. It emerges only briefly in the summer to feast on budding alpine vegetation, and then survives harsh winters by hibernating deep within scree and boulder piles.

The petition to list the Pika cited global warming as the key threat to this species. The Pika, with its very fast metabolism, cannot withstand unseasonably warm summer temperatures. Unfortunately, data indicate that summer peak temperatures in the Sierra and other mountain ranges have been trending upwards toward the Pika's lethal tolerance level. Many point to climate change as the cause of the temperature trend, and some cite human greenhouse gas emissions and other activities as leading contributors to that change. What makes the Pika's potential listing under CESA so intriguing is that there really is no direct threat to the species from human activity due to its remote alpine habitat. Thus, listing it under CESA may be more symbolic than practical.  However, if the Pika is listed under CESA, some may use that listing to challenge various human activities that purportedly jeopardize the Pika indirectly by contributing to climate change in the Pika's native mountain habitat. There is no indication CESA was intended to address such a diffuse threat to a species, and the law is ill-suited to the task. But this may offer an avenue for certain groups to seek to use CESA to achieve these ends. The Pika's status and the Commission's forthcoming listing determination merit attention for this very reason.

The Department of Fish and Game will submit a written report within a year, pursuant to Section 2074.6 of the Fish and Game Code, indicating whether the petition to list the Pika is warranted. Written comments related to the petition should be directed to the Fish and Game Commission, 1416 Ninth Street, Box 944209, Sacramento, California 94244–2090.

The Fish and Game Commission's Notice of Findings may be found here, at page 1826.

For more information regarding this matter, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.