Today, the U.S. Fish and Wildlife Service (USFWS) released a pre-publication version of its long-awaited update to regulations governing Migratory Bird Treaty Act (MBTA) implementation (Proposed Regulations). Significantly, the Proposed Regulations explicitly state that unintentional, non-purposeful, or “incidental” take of migratory birds is not prohibited by the MBTA’s “take” prohibition. USFWS has also published a pre-publication version of a notice of intent (NOI) to prepare an environmental impact statement pursuant to the National Environmental ...
Yesterday, in Center for Biological Diversity v. Everson, the United States District Court for the District of Columbia overturned the U.S. Fish and Wildlife Service’s (USFWS) decision to list the northern long-eared bat (Myotis septentriodnalis) as threatened rather than endangered, and remanded the decision back to the agency. The threatened listing will remain intact while USFWS undertakes a new listing decision.
In addition to remanding the threatened listing decision back to the USFWS, the court also vacated a portion of the USFWS’s and National Marine ...
Today, the U.S. Senate confirmed Aurelia Skipwith as the Director of the U.S. Fish and Wildlife Service (USFWS) by a vote of 52-39. Ms. Skipwith’s confirmation fell mostly along party lines, with three Democratic Senators joining Republicans in approving the nomination. With Ms. Skipwith’s confirmation, the USFWS will have its first Director of the USFWS since the beginning of the Trump Administration.
Prior to her confirmation, Ms. Skipwith served as the Interior Department’s Deputy Assistant Secretary for Fish, Wildlife and Parks. She is a co-founder and former general ...
On October 24, 2019, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the interior least tern (Sterna antillarum) is no longer warranted for listing as an endangered species under the Endangered Species Act (ESA).
The interior least tern, the smallest of the tern species in North America, was first observed in 1804 by explorers Meriwether Lewis and William Clark. The fish-mongering bird currently nests adjacent to major U.S. rivers within the Lower Mississippi Valley and the Great Plains region across ...
On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA). In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California. According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...
The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA). On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States ...
The U.S. Fish & Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa). The Service designated the private land in Louisiana as critical habitat in 2012. Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach ...
On May 3, 2019, the U.S. Fish and Wildlife Service (Service) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (ESA) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.
The American burying beetle is a nocturnal species that has a one year ...
Over the last few weeks, besides proposing to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Species (which we covered here), the U.S. Fish and Wildlife Service (Service) has made a few other moves related to the Endangered Species Act (ESA).
On Monday, April 8, 2019, the Service published a final rule, removing one species from the List of Endangered and Threatened Species, adding 16 separate species to the list, and updating the existing entries for 17 more species. Specifically, the Service added the following species to the ESA List: Gulf grouper ...
On January 31, 2019, the U.S. Fish and Wildlife Service (USFWS) announced plans to amend up to 182 Endangered Species Act (ESA) recovery plans, which potentially cover over 305 animal and plant species, over the next year. These amendments will revise each recovery plan to include quantitative recovery criteria as part of the Department of the Interior’s Agency Priority Performance Goals. USFWS kicked off this 12-month push by releasing a notice of availability of 26 draft recovery plan amendments ...
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 ...
Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (Combs), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (Service). As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is ...
As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the ...
On June 8th, 2017, Department of Interior (DOI) Secretary Ryan Zinke signed Secretarial Order 3353, entitled Greater Sage-Grouse Conservation and Cooperation with Western States. This Order initiates the assessment of both federal and state-led conservation efforts related to the greater sage-grouse and establishes a review panel to undertake the evaluation. The review panel will then recommend (potentially significant) changes to how the bird is managed. The stated purposes of the Order are to 1) enhance cooperation between DOI and the eleven western states comprising the ...
On May 18, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the Secretary of the Department of the Interior and other federal officials in an action brought by an environmental organization concerning the possible impacts of a Nevada solar power facility on the federally listed desert tortoise (Gopherus agassizii). The Court rejected plaintiff’s contentions that U.S. Fish and Wildlife Service (FWS) and Bureau of Land Management (BLM) approvals for the construction and operation of the project ...
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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