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U.S. Court of International Trade Denies NMFS’ Motion to Dismiss Legal Challenge to Seafood Imports from New Zealand that Jeopardize Critically Endangered Dolphins

The U.S. Court of International Trade sided with Sea Shepherd New Zealand and Sea Shepherd Conservation Society yet again, denying a request by the National Marine Fisheries Service (NMFS) to dismiss the conservationists’ claims that NMFS’ approval of certain controversial seafood imports was arbitrary and capricious. U.S. Court of International Trade Judge Gary S. Katzmann previously enjoined certain seafood imports from New Zealand on the basis that New Zealand’s protections for the critically endangered Māui dolphin are not comparable to U.S. regulations, as required by U.S. law. The judge rejected NMFS’ mootness claims, finding that the agency’s rationale in future decisions met the “capable of repetition yet evading review” exception to mootness. The court ordered the parties to submit a proposed scheduling order for briefing on the merits no later than July 7, 2023.

FWS Proposes to Add Rare Freshwater Mussels to the List of Endangered Species

The U.S. Fish & Wildlife Service (FWS) proposes to list the southern elkto, a freshwater mussel species endemic to the Apalachicola-Chattahoochee-Flint Basin of Alabama, Georgia, and Florida, as an endangered species and to designate critical habitat under the Endangered Species Act. FWS is accepting public comments on the proposed listing through August 21, 2023.

Ninth Circuit Rejects Appeal by Recreational Anglers Who Alleged NMFS Violated the ESA

The Ninth Circuit affirmed a ruling by the U.S. District Court for the Western District of Washington, which declined to “second-guess [National Marine Fisheries Service’s (NMFS)] scientific judgment” on fishery management plans in Washington National Marine Fisheries. Plaintiff Fish Northwest, a recreational angler group, had alleged that NMFS violated the Endangered Species Act when it analyzed a yearly management plan for fisheries co-managed by the state and Puget Sound Treaty Indian Tribes without ensuring such fisheries wouldn't further endanger the region’s salmon.

D.C. Circuit Court of Appeals Sides with Lobster Fishers in Legal Challenge to NMFS Rules to Protect Endangered Whales

The U.S. Court of Appeals for the D.C. Circuit overturned a lower court decision upholding the National Marine Fisheries Service’s (NMFS) lobster fishery regulations and the biological opinion detailing how the fishery would impact endangered North Atlantic right whales. The challenge was brought by the Maine lobstermen’s association with support from intervenors that included the Maine Department of Marine Resources, the International Association of Machinists and Aerospace Workers, and the Massachusetts Lobstermen’s Association. The appellate court ruled that NMFS improperly had relied on worst-case scenarios that favored the whales and should have focused on “likely” outcomes, accordingly ordering the district court to grant summary judgment for the lobster industry on two of its claims.

Doc Antle Found Guilty of Four Counts of Wildlife Trafficking

A Virginia jury found Netflix Tiger King personality Kevin Bhagavan “Doc” Antle guilty of four counts of wildlife trafficking in connection with the illegal purchases of lions. Keith Wilson, who admitted to illegally selling lions in court testimony against Antle, will appear in Frederick County Circuit Court on June 23 and is expected to plead guilty. Antle faces a maximum of twenty years in prison in connection with the state court convictions and will be sentenced on September 14, 2023. He is still awaiting trial in federal court for indictments relating to alleged wildlife trafficking, Endangered Species Act crimes, and money laundering in connection with human trafficking.

Environmental Group Plans ESA Lawsuit Against State and Federal Agencies in Connection with Road-Maintenance Projects in Oregon and California Salmon Habitat

The Center for Biological Diversity (CBD) sent a sixty-day notice of intent to sue Oregon and California state transportation agencies, the National Marine Fisheries Service, and the U.S. Department of Commerce for allegedly violating the Endangered Species Act by failing to consider fatal impacts to salmon from toxic tire pollution. CBD alleges that neither the California Department of Transportation nor the Oregon Division of the Federal Highway Administration considered deadly chemical effects when authorizing hundreds of road-maintenance projects in salmon habitats throughout Oregon and California.

Property Developer Seeks ESA Permit to Take Sand Skinks Incidental to Residential Property Development in Florida

The U.S. Fish & Wildlife Service (FWS) announced receipt of an application from Park Square Commercial for an incidental take permit (ITP) under the Endangered Species Act. The applicant requests the ITP to take the federally listed sand skink incidental to the construction of a residential development in Lake County, Florida. FWS will accept public comments through July 17, 2023.

FWS Announces Public Comment Period on Multiple ESA Recovery Permit Applications

The U.S. Fish & Wildlife Service (FWS) published notice of its receipt of Endangered Species Act recovery permit applications for activities intended to enhance the propagation and survival of endangered lesser prairie chickens, Indiana bats, Northern long-eared bats, and Southwest willow flycatchers. FWS will accept public comments on the application through July 14, 2023.

Federal Agencies Drop Appeal of Court Order Requiring Better Protection of Endangered Whales and Sea Turtles in Shipping-Lane Designations

The Biden administration has dropped its appeal of a December 2022 ruling by the U.S. District Court for the Northern District of California that the National Marine Fisheries Service (NMFS) and U.S. Coast Guard failed to meet Endangered Species Act requirements when designating shipping lanes into the ports of Los Angeles, Long Beach and the San Francisco Bay. The ruling requires the Coast Guard and NMFS to conduct a new consultation that accounts for the risks shipping-lane designations pose to whales and sea turtles and considers measures proven to reduce those harms.