Shutdown Affecting ESA Policy and Compliance; Private Projects Feeling the Pinch

The longest partial government shutdown in United States history is taking its toll on Endangered Species Act (ESA) policy initiatives championed by the Trump Administration, and is making ESA compliance and project completion significantly more difficult for a wide spectrum of industries. In July 2018, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service published proposed changes to ESA implementing regulations relating to species listings, de-listings, critical habitat designations, and consultations under section 7 of the ESA. The comment period on these proposed regulatory changes closed in September 2018, and more than 200,000 public comments were logged. Addressing the thousands of public comments on USFWS’s proposed revisions to ESA regulations is just one of many tasks that has stalled while USFWS and other Department of the Interior (DOI) personnel wait for an end to the partial government shutdown. As we previously reported, thousands more comments have been received by DOI agencies in connection with various ESA-related proposals, such as designation of critical habitat for the endangered candy darter, revisions to regulations governing how Freedom of Information Act requests are processed, and revisions to greater sage grouse management plans.

The shutdown’s impact on ESA permitting and regulation are not hypothetical—regulated entities are already seeing consultation and permitting requests grind to a halt. Because most USFWS personnel have been furloughed in accordance with the USFWS Contingency Plan, USFWS is not processing requests for formal or informal consultation under the ESA—a process critical for a wide variety of private projects, including transmission lines, pipelines, and highway and other infrastructure projects. Similarly, non-federal entities that applied to USFWS prior to the shutdown for incidental take permits, pursuant to section 10 of the ESA, have found that the process is frozen. For some project proponents, these kinds of delays have imposed significant costs. For others, the delay and inability to complete the ESA section 7 consultation process or to obtain an incidental take permit during the shutdown may result in abandoning projects altogether.

At present, there is no clear plan for how to address the growing backlog of projects that await ESA permit decisions or consultation once the shutdown ends.

Partial Government Shutdown Slows Endangered Species Act Administration

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 from November to January, the Service has posted only a handful of responsive comments online, with the online regulations site,, having ceased updates due to a lapse in funding. Similarly, the Environmental Conservation Online System, a site providing information on endangered and threatened species that are either listed under the ESA or proposed for listing that is hosted by the Service, is now offline. According to the Service’s Contingency Plan, the majority of the Service’s employees have been furloughed.

Shutdown Prompts Requests to Extend Comment Deadline for Proposed Changes to FOIA Regulations

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 or not the public comment period should, in fact, close as scheduled. More than 1,200 comments have been received by the DOI, but due to the shutdown, none of those comments have been posted for public review on, as is the common practice.  Earlier this week, citing the government shutdown, more than 150 organizations and individuals requested that the DOI extend the public comment period by no fewer than 120 days.

FOIA is often used by both Endangered Species Act (ESA) practitioners and environmental litigants to obtain information regarding proposed or existing listings, critical habitat designations, consultations, and permitting actions. Practitioners and litigants alike have a vested interest in how FOIA is applied. For example, in a leaked September 6, 2018 memorandum from the U.S. Department of Justice (DOJ) to the U.S. Fish and Wildlife Service (Service), the DOJ asked the Service to limit public access to records relating to deliberations on how certain species would or should be protected under the ESA. Conservation groups have argued that the underlying purpose of the memorandum is to use FOIA’s exceptions to disclosure as a way to prevent the public from discovering political interference with what should be scientific decisions.

As of January 16, 2019, the DOI has not yet extended the public comment deadline on its proposed changes to the FOIA regulations, and has not provided any indication of whether or not it intends to do so.


Partial Government Shutdown Impacts Protests to Proposed Sage Grouse Conservation Plan Revisions

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 to the proposed revisions—which would govern millions of acres of sage grouse habitat—is also unclear. According to the Environmental Protection Agency’s website, the deadline to file a protest was January 7; the Bureau of Land Management’s (BLM) website indicates that the deadline is January 9.  Other press materials state that protests must be filed by January 8.  Stakeholder groups have been unable to get clarification regarding the deadline due to the partial government shutdown.

The proposed revisions would remove hundreds of thousands of acres of federally protected habitat in Utah, and would ease restrictions on energy development and other activities in Colorado, Idaho, and Wyoming. BLM has yet to clarify the protest deadline, or make a decision regarding whether it will extend the deadline due to certain documents being unavailable.  Please check back with us for further updates regarding both the sage grouse saga and the federal government’s partial shutdown.

Resolve to Learn More About Endangered Species and the Environment with Nossaman in 2019!

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 for all Americans interested in the future of the Lone Star State—and the country.  At Policy Orientation, scholars, experts, and distinguished guests explore in depth the forces shaping our world—how they affect us, and how we may influence them. Continue Reading

Colorado Court Vacates Eagle Permit

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 define disturb to mean:

to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.

50 C.F.R. § 22.3.  The Service established an eagle permit program in 2009 (amended in 2016) whereby activities that disturb an eagle can be authorized upon meeting certain criteria.  50 C.F.R. § 22.26.  Pursuant to these regulations, Garrett Construction Company, LLC applied for and the Service issued an eagle take permit  for disturbances that may arise from the construction of an apartment complex across the street from two nesting bald eagles.  Front Range Nesting Bald Eagle Studies (“Front Range”), a local conservation group, challenged the Service’s issuance of the eagle take permit on both BGEPA and National Environmental Policy Act (“NEPA”) grounds.  The Service had originally issued the eagle take permit without conducting a NEPA analysis, but upon the filing of Front Range’s lawsuit, the Service moved for voluntary remand to perform the analysis.  Front Range nonetheless continued its challenges under both NEPA and BGEPA.  Ultimately, the court deferred to the Service’s conclusions under BGEPA, but held in favor of Front Range on two of its NEPA claims: (1) the Service failed to perform a cumulative impacts analysis under NEPA; and (2) the Service failed to respond to comments criticizing the short comment period and requesting an extension.  The court remanded the eagle take permit to the Service for further consideration.

U.S. Supreme Court Will Revisit Auer Deference

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 has noted, agency deference has been in the spotlight recently, particularly with the appointments of Justices Gorsuch and Kavanaugh to the Supreme Court.  Justices Alito and Thomas also criticized Auer deference in a 2015 Supreme Court holding.

In Kisor, a Vietnam veteran is seeking retroactive benefits from the U.S. Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD).  The United States Court of Appeals for the Federal Circuit invoked Auer deference when evaluating the VA’s interpretation of its regulations, which resulted in the denial of the retroactive coverage for the veteran.  The question taken up by the Supreme Court is “whether the Court should overrule Auer and Seminole Rock.”

The Kisor case is not an environmental case, but the Supreme Court’s ruling could have significant impacts for environmental litigation.  Enforcement actions, permitting processes, and other agency actions are all impacted by the deference agencies receive as a result of the Auer deference doctrine.

If the Supreme Court overrules its Auer precedent and concludes that either the weaker Skidmore deference or no deference is appropriate, agencies will no longer have the security of knowing that the judicial branch will defer to the agencies.  A decision that overrules Auer deference may result in more tightly and precisely drafted regulations.  The Supreme Court will hear the case next year and likely make its ruling in late spring or summer.

Fish and Wildlife Service Proposes Critical Habitat for Sonoyta Mud Turtle

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 by habitat loss and degradation due to surface water loss and riparian vegetation loss. The species’ primary future stressors also include the effects of climate change and small population dynamics.

In addition to the proposed rule, the Service has prepared a draft economic analysis of the proposed critical habitat designation. The proposed rule notes that the comment period on the proposed rule and draft economic analysis ends on February 4, 2019.

Supreme Court Rules ESA Critical Habitat Must Be Habitat For Listed Species

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 the case to the Fifth Circuit to consider the meaning of “habitat” under the ESA.  Additionally, the Court held that a decision by the U.S. Fish and Wildlife Service (Service) not to exclude an area from designated “critical habitat” is subject to judicial review.  These two holdings are likely to limit the Service’s expansive interpretation of its authority and provide the regulated community with the ability to challenge critical habitat designations where such actions have adverse economic consequences.

Under the ESA, “critical habitat” may include areas that are not currently occupied by a listed species, if the Service determines that such areas are “essential for the conservation of the species.”  When the Service designated critical habitat for the dusky gopher frog (Rana sevosa) in 2012, it identified four areas in Mississippi with existing frog populations and designated those areas as critical habitat.  But the Service determined that these four occupied areas were not adequate to ensure the frog’s conservation, and so also designated a 1544-acre area in Louisiana (described as “Unit 1”) as unoccupied critical habitat for the dusky gopher frog.  In doing so, the Service acknowledged that Unit 1 would not sustain the frog in its current condition, but concluded that the uplands forest, currently managed for timber production, could be restored to open canopy forest and made into suitable frog habitat with “reasonable efforts.”  Unit 1 is located on privately owned land and the owners of Unit 1 had no intention of converting the uplands to  frog habitat, as they were considering developing housing on the land, which is located not far from the New Orleans metropolitan area.

The landowners sought to have the critical habitat designation of Unit 1 vacated as inconsistent with ESA requirements and not supported by the administrative record.  They argued that, as a matter of law, an area cannot be “critical habitat” for a species if it is not currently habitable by that species, and that the unoccupied parcel in Louisiana is not habitable by the dusky gopher frog.  The critical habitat designation was upheld by the federal district court and a divided panel of the Fifth Circuit, which held (based only on the ESA’s definition of “critical habitat”): “There is no habitability requirement in the ESA or the implementing regulations.”

The Supreme Court rejected the suggestion that the criteria for unoccupied critical habitat are limited to the ESA’s definitions.  It looked instead to ESA section 4, the provision that directs the Service to designate critical habit, and stated its conclusion quite succinctly: “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

The Supreme Court also concluded that the ESA’s definition of “critical habitat” allows the Service “to identify the subset of habitat that is critical, but leaves the larger category of habitat undefined.”  The Court noted the competing definitions of “habitat” offered by the Service and Weyerhaeuser (on behalf of the landowners of Unit 1).  The Service argued that habitat includes areas that, like Unit 1, require some degree of modification to sustain a species, while Weyerhaeuser, insisted that an area cannot be habitat if it cannot currently support a species.  The Court also noted the factual dispute between the parties regarding whether or not Unit 1 could currently support a dusky gopher frog population.  It remanded the case to the Fifth Circuit to consider those questions.

The Court’s limited holding that critical habitat must be habitat, reserving the meaning of habitat and the factual question of whether Unit 1 is habitat for the dusky gopher frog for further consideration by the lower courts, likely reflects the efforts of Chief Justice Roberts to find common ground and forge a unanimous decision among the eight justices who heard argument in the case.  Justice Kavanaugh, who was confirmed after the case was argued, did not participate in the decision.  With an eight justice panel, there was real potential for an even split on the question of whether an area must be currently habitable to be deemed critical habitat.  If the Supreme Court had split evenly, the Fifth Circuit’s holding that the ESA does not require habitability for critical habitat would have remained in place.  As the unanimous decision indicates, all the justices agreed that the Fifth Circuit was wrong on this central legal point and that critical habitat must be habitat.

The Supreme Court also overturned the Fifth Circuit’s determination regarding courts’ abilities to review a Service decision whether to exclude an area from critical habitat based on economic impacts.  The Fifth Circuit held that this determination is committed to agency discretion by law and not reviewable by the courts.  The Supreme Court reversed, holding that a Service decision to not exclude an area from critical habitat, like its decision to designate critical habitat areas, is reviewable for abuse of discretion.  This aspect of the decision is at least as important as the holding with respect to the definition of critical habitat, as it provides the regulated community with the ability to challenge the Service’s conclusions regarding the costs and benefits of excluding areas from critical habitat.