Endangered Species Law and Policy

Analyzing Legal and Policy Developments Affecting Endangered Species Throughout the United States

The effects of the partial Federal government shutdown are being felt at the U.S. Fish and Wildlife Service (“Service”). The shutdown has virtually halted the Service’s processing of pending rulemakings under the Endangered Species Act (“ESA”). As an example, while the comment period on the Service’s proposed designation of 370 miles of critical habitat for the endangered candy darter (Etheostoma osburni) — a freshwater fish found in portions of West Virginia and Virginia — ran…
On December 28, 2018, the Department of the Interior (DOI) published proposed changes to its rules governing how it processes requests for records under the Freedom of Information Act (FOIA) and provided a 30-day timeframe in which the public could submit comments to the DOI concerning those changes. The public review and comment period is currently scheduled to close on January 28, 2019. However, the partial government shutdown has caused several groups to question whether…
The impacts of the federal government’s partial shutdown have been felt nationwide, as restricted operations and furloughs delay or otherwise complicate governmental processes. As an example, E&E News reports that conservation organizations’ efforts to formally protest proposed revisions to greater sage grouse (Centrocercus urophasianus) conservation plans have been thwarted by alleged problems with the Department of Interior’s website, which restricted access to certain documents due to the partial government shutdown. The deadline for filing protests…
Nossaman’s Environmental Practice attorneys will be off to a great start in 2019 presenting at many key events around the U.S. focused on endangered species and environmental issues. First, on January 10th, Austin-based Environment & Land Use Partner Brooke Wahlberg will speak at the Texas Public Policy Foundation’s 2019 Policy Orientation in Austin.  Brooke’s presentation is entitled “Frogs or Freedom:  Are New Limitations Coming for the Endangered Species Act?”  Policy Orientation is the premier gathering…
On December 13, 2018, the United States District Court for the District of Colorado vacated an eagle take permit issued by the U.S. Fish and Wildlife Service (“Service”) authorizing a construction company to disturb a pair of nesting bald eagles.  Front Range Nesting Bald Eagle Studies v. U.S. Fish and Wildlife Service et al., No. 1:18-cv-00356.  The Bald and Golden Eagle Protection Act (“BGEPA”), prohibits the disturbance of bald eagles or golden eagles.  The Service’s regulations…
On December, 10, 2018, the United States Supreme Court granted a petition for writ of certiorari in Kisor  v. Wilkie (No. 18-15), which raises the issue of whether Auer deference should be overruled.  Auer deference (also known as Seminole Rock deference) requires courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations.  Auer deference is similar to Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of ambiguous statutes.  As this blog
The U.S. Fish and Wildlife Service (Service) has proposed (pdf) to designate approximately 12.28 acres of critical habitat for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) in Pima County, Arizona.  The proposed critical habitat would be located entirely within the Organ Pipe Cactus National Monument. The Service previously issued a final rule listing the species as endangered under the Endangered Species Act (ESA) in September 2017, finding that the Sonoyta mud turtle has been threatened…
On November 27, 2018, the U.S. Supreme Court ruled that an area is eligible to be designated as “critical habitat” under the Endangered Species Act (ESA) only if the area is habitat for the relevant threatened or endangered species.  Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71.  The Court vacated the U.S. Court of Appeals for the Fifth Circuit’s decision, which held that the ESA has no habitability requirement, and remanded…
On November 21, 2018, the U.S. Fish and Wildlife Service (“Service”) published a final rule listing the candy darter (Estheostoma osburni) as endangered and proposing critical habitat for the species.  The candy darter is a small, freshwater fish species native to Virginia and West Virginia.  The Service’s announcement finalizes its proposed rule to list the candy darter, which was published on October 4, 2017, with one significant difference – the Service originally proposed to list…
The recent California wildfires have been devastating.  But it is during such times of devastation that we also get to see the good in people.  We see communities coming together, and support from around the State.  As reported by a number of news agencies, that support has extended to not just people, but also pets.  There are stories with pictures of police officers corralling pot belly pigs, horses being guided through smoke and flames, and dogs and cats being rescued by a…