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
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.
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
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
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.
You may well not have noticed when the US Fish and Wildlife Service (Service) issued a proposal back in September to list the Kenk’s amphipod (Stygobromus kenki) as an endangered species. 81 Fed. Reg. 67270 (September 30, 2016). Even the Center for Biological Diversity, which pushed for the listing, concedes that this small, eyeless, shrimp-like creature “may be one of the most uncharismatic species considered for protection under the [Endangered Species] Act.” This proposal is worthy of note, however, for at least a couple of reasons.
On November 30, 2016, the US Fish and Wildlife Service (the Service) published a notice in the Federal Register announcing its finding that a September 2016 petition filed by several environmental groups “presents substantial scientific or commercial information” indicating that listing of the lesser prairie-chicken (LPC) under the Endangered Species Act (ESA) “may be warranted.” The Service has initiated a 12-month status review to determine whether listing the LPC is warranted. The Service has requested that information relevant to the status review be submitted by January 30, 2017, in order to be considered during the status review.
On November 2, 2016, the US Fish and Wildlife Service (the Service) announced its intention to issue a permit authorizing the take of up to three golden eagles during the five-year permit term for the 48-turbine Alta East Wind facility in Kern County, California. The announcement was contained in a notice published in the Federal Register (available here), which also announced the availability of the Service’s Finding of No Significant Impact (FONSI) for the issuance of the permit. The permit is to be issued 30 days following the publication of the Federal Register notice.