Endangered Species Law & Policy

As we previously reported, more than 150 organizations have requested that the Department of the Interior (DOI) extend the public comment period associated with DOI’s proposed changes to how it will process requests for information under the Freedom of Information Act (FOIA) (Proposed Regulations) by no less than 120 days due, in part, to the partial government shutdown.  Without referencing or responding to these multiple requests, DOI announced that it will extend the comment period for the Proposed Regulations by a single day. According to the announcement from DOI, the ...

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 ...

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 ...

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 ...

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 ...

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.

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 ...

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 ...

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 ...

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 ...