Posts from June 2016

The U.S. Fish and Wildlife Service (Service) published an interim rule (pdf) revising its civil procedure regulations for the assessment of civil penalties for violations of various laws and regulations within the Service’s jurisdiction.  The Service issued the revised procedures pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015, which requires agencies to update statutory civil monetary penalties to adjust for inflation.  The purpose of the Inflation Adjustment Act is to maintain the deterrent effect of civil penalties and to further the policy ...

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On June 28, 2016, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) released draft revisions to their joint Habitat Conservation Planning Handbook (Handbook).  The proposed revisions are intended to address concerns raised by the regulated community regarding the habitat conservation plan (HCP) program implemented under section 10 of the Endangered Species Act (ESA).

To apply for an incidental take permit under ESA section 10(a)(1)(B), an applicant must develop an HCP.  The Handbook, initially released in 1996 and revised by ...

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On June 20, 2016, the U.S. Supreme Court issued a 6-2 opinion in Encino Motorcars, LLC v. Navarro et al., holding that the U.S. Department of Labor (Labor Department) was not entitled to receive Chevron deference with respect to its 2011 regulation addressing overtime exemptions in the auto industry.  No. 15-415, slip op. (June 20, 2016).  So-called Chevron deference arose out of a 1984 Supreme Court decision holding that agency regulations receive deference where a statute is ambiguous and the agency’s interpretation is reasonable.  Chevron U.S.A. Inc. v. Natural Resource Defense ...

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On June 7, 2016, the U.S. Court of Appeals for the Ninth Circuit rejected plaintiffs’ claim, among others, that the U.S. Bureau of Land Management’s (BLM) violated the Migratory Bird Treaty Act (MBTA) by granting a right-of-way to a private company to develop and operate a wind energy facility.  Protect Our Communities Foundation v. Jewell, No. 14-55842, 14-55666 (9th Cir. June 7, 2016).

Plaintiffs argued that BLM—by granting a right-of-way to Tule Wind LLC (Tule)—was "complicit" in future conduct by Tule that might result in violations of the MBTA.  Beyond this assertion of ...

Posted in Court Decisions

On June 3, 2016, the U.S. Court of Appeals for the D.C. Circuit held in Friends of Animals v. Jewell (No. 1:14-cv-00357) that Plaintiff Friends of Animals (Plaintiff) had Article III standing to pursue a constitutional claim on the ground of informational injury.  The court, however, rejected the merits of Plaintiff’s challenge to a U.S. Fish and Wildlife Service (FWS) regulation establishing a limited exemption from the Endangered Species Act’s (ESA) section 9 take prohibition for three antelope species (scimitar-horned oryx, Oryx dammah; addax, Addax nasomaculatus; and ...

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On June 2, 2016, the U.S. Fish and Wildlife Service (Service) issued a 90-day finding that listing populations of the Northwestern moose (Alces alces andersoni) under the Endangered Species Act (ESA) may be warranted.  The Service’s 90-day finding is in response to a petition filed in July 2015 by the Center for Biological Diversity and Honor the Earth, which asked that the moose be listed as a threatened or endangered distinct population segment (DPS).

The U.S. population of Northwestern moose inhabits the upper peninsula of Michigan, Minnesota, North Dakota and Wisconsin.  In ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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