Defenders of Wildlife Challenges FWS Unlawful Evasion of Habitat Protection for Rare Species  

Defenders of Wildlife today is challenging a U.S. Fish and Wildlife Service regulation that allows the agency to unlawfully dodge its legal duty to designate critical habitat for species that need it most.  

Defenders argues that the FWS violated the Endangered Species Act by relying on this unlawful regulation when it did not include habitat protections for the critically endangered Sierra Nevada red fox.

“The Service is using a legally flawed loophole to undermine the Endangered Species Act,” said Ellen Richmond, senior attorney for Defenders of Wildlife’s Biodiversity Law Center. “Imperiled species threatened by climate change need more attention — not less. When the Service fails to curb habitat loss, species like the Sierra Nevada red fox are pushed closer to extinction.” 

The ESA requires FWS to designate critical habitat to the “maximum extent” for all federally threatened or endangered species. A narrow exception applies when designation is “not prudent”— in other words, when habitat protection would not benefit a species. 

The regulation at issue in the case unlawfully expands the “not prudent” category to situations where the species faces threats other than habitat destruction—such as climate change—even when the species could still benefit from habitat protections. The regulation was part of a 2019 suite of ESA regulatory changes that dramatically weakened protections for imperiled species. 

In the case of the Sierra Nevada red fox, habitat protection is important for the recovery of a species that is critically endangered and resides in a restricted geographic range in the High Sierra. The Sierra Nevada red fox is a red fox subspecies with fewer than 40 individuals in the population that resides along California’s Sierra Nevada crest. In 2021, the FWS listed this population under the ESA as an endangered distinct population segment without a critical habitat designation — meaning habitat essential to the survival of the Sierra Nevada red fox would not be protected under the ESA.  

“The Sierra Nevada red fox was thought to be extinct in California until a small population was discovered in 2010; its survival requires all the power of the Endangered Species Act,” said Pamela Flick, California program director for Defenders of Wildlife. “We urge the Service to do the right thing and designate critical habitat without further delay — there’s no time to waste for this highly imperiled species.” 

The FWS determined critical habitat “not prudent” as the Sierra Nevada distinct population segment of Sierra Nevada red fox faces primary threats from climate change and other factors. This conclusion is based on a dangerously broad interpretation of the ESA’s “not prudent” exception, which could open the door to inappropriately avoiding critical habitat designations for more species in the future. 

The Sierra Nevada red fox is a subspecies of montane red fox with two distinct populations. The Sierra Nevada Distinct Population Segment at issue here, which experts believe could consist of as few as 18 and 39 individuals, resides in California’s Sierra Nevada. The Southern Cascades Distinct Population Segment lives in the Southern Cascades of Oregon and northern California. This incredibly charming species lives at very high elevations and has unique snow-adapted characteristics including snowshoe-like feet that support a nimble body covered in thick fur to survive in extreme mountain environments.  

Defenders of Wildlife’s Biodiversity Law Center has previously commented extensively on the harmful regulation at issue in this case, as well as others that weakened bedrock protections for imperiled species. Check out the series on the good, “the middling” and the ugly of ESA regulations.