Endangered Species Law & Policy

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 ...

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 ...

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 ...

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 ...

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 ...

As recently reported by the Center for Biological Diversity, a rider has been proposed for an appropriations bill that would provide $1.5 billion to the U.S. Fish and Wildlife Service in 2017.  The controversial rider would remove current Endangered Species Act protections for gray wolf populations in Michigan, Wisconsin, Minnesota, and Wyoming.  The appropriations bill, which is currently making its way through the House of Representatives, was before the House Subcommittee on Interior, Environment, and Related Agencies on May 25, 2016 ...

On May, 17, 2016, the U.S. Senate Committee on Energy and Natural Resources’ Subcommittee on Water and Energy held hearings on a number of pending bills, including S. 2533, sponsored by Senator Diane Feinstein (D-CA).  The bill, titled California Long-Term Provisions for Water Supply and Short-Term Provisions for Emergency Drought Relief Act, is aimed at providing short-term water supplies to drought-stricken California and providing for long-term investments in drought resiliency throughout the Western United States.

Among its many provisions, S. 2533 invests $1.3 ...

After filing an appeal with the U.S. Court of Appeals for the Fifth Circuit less than two weeks prior, on May 10, 2016, the U.S. Fish and Wildlife Service (Service) filed an unopposed motion to voluntarily dismiss its appeal of the district court decision that vacated the listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA).  The U.S. District Court for the Western District of Texas, Midland Division, identified a number of errors in the Service’s evaluation of the species under the criteria laid out in the ...

On May 11, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule designating approximately 65,038 acres and 20.3 river miles of critical habitat for the Oregon spotted frog (Rana pretiosa).  The acres and river miles comprising the critical habitat designation are located in Whatcom, Skagit, Thurston, Skamania, and Klickitat Counties in Washington, and Wasco, Deschutes, Klamath, Lane, and Jackson Counties in Oregon.

According to the Service, the areas designated as critical habitat constitute the Service’s best assessment of the areas that meet the ...

On May 6, 2016, the U.S. Fish and Wildlife Service (Service) published its proposed revisions to the Bald and Golden Eagle Protection Act (BGEPA) permit program.  The stated intention of these proposed revisions is to improve upon the 2009 regulations establishing a permit program under BGEPA.  In 2012, the Service issued an advance notice of proposed rulemaking seeking public input on aspects of the 2009 regulations.  In addition to updating the best available science regarding eagle populations, conservation measures and causes of eagle mortality, the proposed revisions seek to ...