The controversy continues over the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). As we noted here, the Solicitor’s Office for the US Department of the Interior (DOI) issued an opinion in late 2017 concluding that the MBTA does not prohibit the incidental take of migratory birds. Although this conclusion was consistent with the holdings of at least two US Circuit Courts of Appeal, the Solicitor’s Opinion came under immediate fire from conservation groups and several former government officials. In May of this year, two environmental groups filed lawsuits in federal court challenging the Opinion. In a court filing earlier this month, the government stated its intention to move to dismiss these suits based on several threshold grounds, such as whether the Opinion is a final agency action subject to judicial review. These lawsuits inject fresh uncertainty into an area of the law that DOI sought to clarify. Continue Reading US Fish & Wildlife Service To Seek Dismissal of Suits Challenging MBTA Legal Opinion

The US Fish & Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) issued three significant, highly anticipated, proposals to revise the Endangered Species Act (ESA) regulations on July 19. The proposals address critical habitat designation, ESA section 7 consultation, and protection of threatened species. Once published in the Federal Register, there will be a 60 day comment period for all three proposals. The proposals would make important changes in each area, and are likely to garner substantial attention in public comments.  Some key highlights follow. Continue Reading Services Propose Highly Anticipated Revisions to ESA Regulations on Critical Habitat Designation, Section 7 Consultation, and Protections for Threatened Species

As the Trump administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act (ESA) and its implementation by the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services), the Supreme Court is poised to hear a landmark case on designation of critical habitat under the ESA that could provide some guideposts for the Services’ new regulations.

Continue Reading Supreme Court to Evaluate Critical Habitat Limits as Services Ramp up ESA Reform Efforts

The Corps Struggles to Balance Competing Constitutional and Statutory Duties

Federal agencies must often balance competing policy concerns and legal requirements. This process may be difficult and fraught with intense public feedback, and frequently results in litigation. The U.S. Army Corps of Engineers (the Corps) has found itself in the hot seat over how it manages the nation’s rivers, pitting its obligations under the Endangered Species Act (ESA) against private property rights. Litigation in the federal courts may soon determine whether, and if so how, responsible the federal government is for unintentional or incidental flooding when the government manages rivers for the benefit of listed species. These cases also bring to the fore a burning question: When can government agencies be held responsible for natural events? With the increase in climate change-related litigation nationwide, this issue will likely only rise in prominence. Continue Reading Caught Between a Rock and a Hard Place

On April 16, 2018, the U.S. Fish and Wildlife Service published a final rule removing the black-capped vireo (BCV) from the Federal List of Endangered and Threatened Wildlife. 83 Fed. Reg. 16,228. The BCV is a migratory songbird that breeds and nests in Texas, Oklahoma, and northern Mexico, and winters along Mexico’s Pacific coast. Its breeding habitat includes shrublands and open woodlands. The delisting decision is based on the Service’s determination “that the primary threats to the [BCV] have been reduced or managed to the point that the species has recovered.” The delisting will take effect on May 16, 2018. The Service will work with the States of Texas and Oklahoma to implement a 5-year post-delisting monitoring program in compliance with section 4(g)(1) of the Endangered Species Act (ESA). Continue Reading U.S. Fish and Wildlife Service Publishes Final Rule Delisting the Black-Capped Vireo

 

On Monday, the Trump Administration released an ambitious legislative proposal that aims to stimulate $1.5 trillion in new infrastructure investment over the next 10 years, expedite the federal permitting process, address rural infrastructure needs, and prepare the American workforce for the future. To accomplish those goals, the proposal includes aggressive recommendations to streamline key federal environmental review and permitting processes for infrastructure projects. In addition to traditional forms of infrastructure, such as roads, bridges, and airports, the Legislative Outline for Rebuilding Infrastructure in America addresses drinking and wastewater systems, energy infrastructure, veterans’ hospitals, and Brownfields and Superfund sites.

Continue Reading Ambitious White House Infrastructure Legislation Proposal Would Make Major Changes to Environmental Permitting and Reviews

As recently noted here, shortly after the Trump administration took office last year, the Solicitor’s Office for the U.S. Department of the Interior (DOI) withdrew a legal opinion it issued in the waning days of the Obama administration which concluded that the Migratory Bird Treaty Act (MBTA) prohibits incidental take of migratory birds, pending further review of the question.  The results of that further review were revealed on December 22, 2017, when the Solicitor’s Office issued a new opinion reaching the opposite conclusion.

Continue Reading The Other Shoe Drops on the MBTA

In 2016, the US Fish and Wildlife Service (FWS or the Service) issued two policies on how to mitigate the impact of projects affecting fish and wildlife and natural resources: one overarching policy and one policy specific to Endangered Species Act implementation. Raising eyebrows, these mitigation policies were not limited to offsetting project impacts, but instead set a goal of improving the condition of affected resources. Continue Reading Should Mitigation Meet a “Net Gain” Standard? USFWS is Reconsidering its Stance

Uncertainty has reigned for a number of years about the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). In the latest effort to address this problem, the House Committee on Natural Resources has attached an amendment to a pending energy bill that would clarify that the MBTA does not prohibit incidental take of protected birds.

The MBTA, a criminal statute enacted in 1918, is one of the oldest wildlife protection laws on the books and covers over 1,000 bird species, including approximately 90 percent of all birds occurring in North America and many common species. The MBTA makes it illegal for any person to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, … ship, … transport, … carry, … receive … at any time, or in any manner, any migratory bird, … or any part, nest, or egg of any such bird.” 16 U.S.C. § 703.

Continue Reading De-Criminalizing the Inevitable: Some Hope for Rationalizing the MBTA?

When Congress enacted the Endangered Species Act (“ESA”) to protect and recover imperiled species and the ecosystems on which they depend, it emphasized the need to strike the proper balance between protecting species and allowing productive human activities. Widespread concern that this balance has been lost has sparked movement within the Trump Administration and Congress to improve the ESA and its implementation by the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services). Many of these reform efforts are focused on ensuring earlier and increased involvement of states and other regulated entities and on improving the listing/delisting process to make certain that the extraordinary protections of the ESA are imposed, where warranted, and lifted, as appropriate.

Continue Reading Catching Our Balance: Opportunities for ESA Reform