Consistent with President Biden’s Executive Order (EO) 13990, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the “Services”) recently announced that they “will initiate rulemaking in the coming months to revise, rescind, or reinstate five [Endangered Species Act] regulations finalized by the prior administration.” The Biden Administration is the third consecutive administration to undertake revisions to the Services’ Endangered Species Act (“ESA”) regulations. The Administration’s Spring 2021 Unified Agenda provides general timeframes for the proposed actions, each of which will go through a notice and comment rulemaking process.
Continue Reading ESA Rules Redux: Services Plan a Second (and, in Some Cases, Third) Look at the ESA Regulations

The lesser prairie-chicken—a grouse whose range covers the western portions of Kansas and Oklahoma; the Texas Panhandle, including the Llano Estacado; eastern New Mexico; and southeastern Colorado—is subject to yet another proposed listing under the Endangered Species Act (“ESA”).  On June 1, 2021, the US Fish & Wildlife Service (“FWS” or the “Service”) proposed to re-list two distinct population segments (“DPS”) of the species.  86 Fed. Reg. 29,432 (June 1, 2021).  The proposal is subject to a 60‑day public comment period, through August 2.  FWS is expected to issue a final decision within a year.

Continue Reading Lesser Prairie-Chicken Faces Re-Listing Under the Endangered Species Act

On August 12, 2019, the US Fish and Wildlife Service and the National Marine Fisheries Service signed final rules instituting the first comprehensive revisions to Endangered Species Act regulations in 33 years. The Services made substantial revisions to their regulations concerning listing and delisting species, critical habitat designations, consultation with federal agencies and the process for establishing protections for threatened species. Two states and numerous environmental groups have signaled their plan to challenge the new rules.
Continue Reading FWS and NMFS Complete Long-Awaited, Comprehensive Revision of ESA Regulations

In overturning a US Fish and Wildlife Service decision not to list the arctic grayling, the Ninth Circuit has shifted the burden to federal wildlife agencies to explain why listing is not appropriate when there is uncertainty regarding potential climate change impacts.
Continue Reading Ninth Circuit Overturns Climate Change-Based Decision Not to List Species Under ESA

As the Trump Administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act and its implementation by the US Fish and Wildlife Service and National Marine Fisheries Service, 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

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 has found itself in the hot seat over how it manages the nation’s rivers, pitting its obligations under the Endangered Species Act 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

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

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.
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. With these key changes, the Trump Administration and Congress could make significant progress to restore what many believe is the ESA’s intended balance between the protection of species and economic growth.
Continue Reading Catching Our Balance: Opportunities for ESA Reform

From the Penobscot River in Maine to the St. Mary’s River in Florida, the Atlantic sturgeon ranges, swimming periodically up river to spawn and returning to marine waters when it is done. With a lifespan of up to 60 years, the Atlantic sturgeon can grow up to 14 feet long and weigh up to 800 pounds, according to the National Marine Fisheries Service (NMFS). Despite this species’ mighty proportions and vast range, five distinct population segments of the species have been listed by the as threatened or endangered.

Continue Reading From Maine to Florida, Designated Critical Habitat for Atlantic Sturgeon Will Complicate Federal Permitting