California Fish and Game Commission Defers Decision on Joshua Tree

The California Fish and Game Commission deferred the decision on whether to make the western Joshua tree a candidate for listing to a special meeting in September 2020. In a hearing on August 20, 2020, the Commission heard a wide variety of perspectives on whether listing the species may be warranted. The California Department of Fish and Wildlife’s 90-day evaluation recommended a “may be warranted” finding but at the hearing Director Bonham indicated he was open to deferring the decision in order to work with the stakeholders ... 

Court Reignites Migratory Bird Treaty Act Question

On August 11, 2020, a federal district court in New York ruled that the unintentional or incidental “take” of migratory birds is a crime under the Migratory Bird Treaty Act (“MBTA”), vacating a Department of the Interior Solicitor’s Opinion (M-37050, referred to as an M-Opinion), which had determined that the MBTA does not apply to incidental take.

The now-vacated M-Opinion, issued by the Trump Administration in December 2017, had withdrawn and replaced an earlier M-Opinion issued in the last days of the Obama Administration (Opinion M-37041), which had interpreted the ...

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Federal Wildlife Agencies Propose Rule to Define Habitat

The Departments of Commerce and the Interior (Departments) have completed a proposed rule to define the term “habitat” as that term is used in the context of designating “critical habitat” under the Endangered Species Act (ESA). The proposed rule will soon be published in the Federal Register. Upon publication, the public will be given 30 days to submit comments. If finalized, the definition will be included in the joint regulations developed by the two Departments to implement section 4(a)(3)(A)(i) of the ESA. The ESA, itself, defines the term “critical habitat” but ...

Ninth Circuit Rejects Greater Yellowstone Grizzly Bear Delisting

For the second time in a decade, the U.S. Court of Appeals for the Ninth Circuit has invalidated a decision by the U.S. Fish and Wildlife Service (Service) to remove the Greater Yellowstone grizzly bear (Ursus arctos horribilis) population from the federal endangered species list.  Crow Indian Tribe v. State of Wyoming, Case No. 18-36038 (9th Cir. July 8, 2020).  In 2011, the Ninth Circuit invalidated the decision to delist the Greater Yellowstone grizzly population because the evidence did not support the Service’s conclusion that the decline of white bark pine did not threaten the ...

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WEBINAR: Key CEQA Compliance Considerations for Vehicle Miles Traveled Analyses

Please join us on August 4th from 11:30 a.m. to 12:30 p.m. PT for “Key CEQA Compliance Considerations for Vehicle Miles Traveled Analyses.” This complimentary webinar will examine the California Natural Resources Agency’s new guidelines for traffic and transportation impacts analyses under CEQA through legal, planning and technical perspectives. We will be joined by well-known transit practitioners Keith Greer, Senior Environmental Planner at the San Diego Association of Governments (SANDAG), and Ronald Milam, Principal at the transportation planning firm Fehr & ...

NEPA Rules Finalized; Effect Remains to be Seen

On July 16, 2020, the Council for Environmental Quality (CEQ) released in final form its eagerly anticipated revisions the National Environmental Policy Act (NEPA) implementing regulations (NEPA Rules). Publication of the NEPA Rules comes just six months after CEQ published proposed versions of the same—a move which drew more than one million public comments, many of which were form letters.  

As signaled by Notice of Proposed Rulemaking, the purpose of the NEPA Rules is to facilitate more efficient review of federal agency actions.  To a considerable extent, the new rules ...

Klamath Dam Removal Now in Question

Over the past decade, proponents of an effort to remove four dams on the lower Klamath River have hit a series of roadblocks.  The most recent came on July 16, 2020, when the Federal Energy Regulatory Commission (FERC) voted 3-0 to partially transfer the license for the four dams to the Klamath River Renewal Corporation (KRRC) but also required PacifiCorp, the current owner and operator of the dams, to remain a co-licensee.  FERC determined that retaining PacifiCorp as co-licensee is in the public interest because of significant uncertainty regarding the proposed dam ...

WEBINAR: Adapting Your Linear Infrastructure Projects to Changing Regulatory Frameworks

Please join us for a complimentary webinar on July 30, 2020 from 11:00 a.m. – 12:30 p.m. PT, where we will discuss the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. We will examine...

Transmission Line Permit Invalidated, USFWS Ordered to Redo Endangered Species Act Analyses

On June 17, 2020, a federal court in Colorado vacated an incidental take permit (ITP) issued to the Nebraska Public Power District (NPPD) authorizing take of the endangered American burying beetle (ABB) that could occur in connection with NPPD’s construction and operation of the 225-mile R-Project transmission line (R Project). The court vacated the ITP on the grounds that its issuance by the U.S. Fish and Wildlife Service (USFWS) violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and section 106 of the National Historic Preservation Act ...

Law Seminars International’s CEQA and the NEPA Rewrite Seminar

Please join me for Law Seminars International’s virtual event, CEQA and the NEPA Rewrite Seminar, on July 29th. From 2:00 to 2:45 p.m. PT, I will be presenting “Climate Change and Cumulative Impacts Analysis: Energy Infrastructure Projects,” and speaking on the...

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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