Endangered Species Law & Policy

Today, the U.S. Fish and Wildlife Service (Service) announced it had opened status reviews for 38 species of plants, wildlife, and fish endemic to Texas, New Mexico and Arizona (Southwest Species). Section 4(c) of the Endangered Species Act (ESA) requires the Service to evaluate the status of species listed as threatened and endangered at least once every five years (5-year Review) and determine, based on that evaluation, whether any such species should be delisted, downlisted (from endangered to threatened), … 

On Wednesday, October 23, 2024, the U.S. Fish and Wildlife Service (Service) released final guidance and tools (Final Guidance) to assist project proponents with Endangered Species Act (ESA) compliance with respect to the northern long-eared bat (Myotis septentrionalis) (NLEB) and the tricolored bat (Perimyotis subflavus) (TCB). The Final Guidance includes: (1) a step-by-step consultation guidance document which outlines a voluntary approach to streamline ESA section 7 consultation for the NLEB and/or TCB for project types other than wind turbine operation and ...

On July 24, 2024, the Environmental Protection Agency (EPA) published its Draft Insecticide Strategy to Reduce Exposure of Federally Listed Endangered and Threatened Species and Designated Critical Habitats from the Use of Conventional Agricultural Insecticides (Draft Insecticide Strategy). The purpose of the Draft Insecticide Strategy is to identify and implement early mitigation measures to address population-level impacts from the use of agricultural pesticides to species listed under the Endangered Species Act (ESA).  The Draft Insecticide Strategy was developed ...

On March 27, 2024, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) made available pre-publication versions of the agencies’ long-awaited updates to regulations implementing sections 4 and 7 of the Endangered Species Act (ESA). The Services have finalized joint rules addressing interagency consultation requirements under ESA section 7 and the procedures for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4; and USFWS has finalized its reinstatement of ...

On February 1, 2024, the Center for Biological Diversity (CBD) filed an amended complaint (Complaint) in the U.S. District Court of Arizona, alleging the U.S. Fish and Wildlife Service (Service) failed to timely analyze the harmful effects of six pesticides on species listed under the Endangered Species Act (ESA) and their habitats. The lawsuit stems from the Service’s failure to issue biological opinions to the Environmental Protection Agency (EPA) in response to that agency’s request for formal ESA section 7 consultation with the Service over the EPA’s 2017 and 2021 ...

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months. This most recent iteration of the Unified Agenda is notable in that it represents the slate of actions the Biden Administration hopes to complete in advance of a potential change in administrations … 

On August 11, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to delist the Apache trout (Oncorhynchus apache) under the Endangered Species Act (ESA) due to the species’ recovery.  The Apache trout, the state fish of Arizona, is a species of freshwater fish that is found primarily in the mountain region of southeast Arizona.  This species was initially listed as an endangered species under the ESA in 1967.  Then, in 1975, the Service downlisted the species to threatened status.  The ESA defines a threatened species as one that is “likely to become ...

On August 10, 2023, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly (Euphydryas Anicia cloudcrofti) under the Endangered Species Act. The proposed critical habitat designation encompasses 1,636.9 acres of land in the Sacramento Mountains in Otero County, New Mexico, and follows the Service’s January 2023 final rule listing the species as endangered.

As explained in the proposed rule, the Service considered physical and biological features “essential to the ...

On June 22, 2023, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services), issued three sets of proposed revisions to their Endangered Species Act (ESA) regulations addressing: (1) interagency consultations under ESA section 7; (2) the procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4; and (3) reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all ...

On June 16, 2023, in a highly anticipated decision, the United States Court of Appeal for the D.C. Circuit set aside a biological opinion regarding the effects of the federal lobster fishery on the North Atlantic right whale (Eubalaena glacialis). The court held that a presumption in favor of an endangered species is not required by the Endangered Species Act (ESA) and, further, that such a presumption can distort the agency’s scientific judgment and did so in this circumstance.

The National Marine Fisheries Service (NMFS) issued the biological opinion in 2021 analyzing the ...

On May 17, 2023, the federal District Court for the District of Massachusetts granted summary judgment in favor of the United States Bureau of Ocean Energy Management (BOEM) and Vineyard Wind and denied summary judgment to the plaintiffs in the case of Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, 21-cv-11390 (Talwani, J.). This is the first federal court decision upholding, on the merits, the federal government’s approval of a commercial-scale offshore wind project. There are three other cases pending that also seek to block the construction ...

Recently, the United States District Court for the Northern District of California refused to dismiss a lawsuit filed by a concerned citizen against the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service (NMFS) alleging Endangered Species Act (ESA) violations in connection with the Corps’ operation of the Coyote Valley Dam on the Russian River in Northern California. The court opined that federal defendants cannot avoid having to defend their prior actions simply by initiating the consultation process under section 7(a)(2) of the ESA, and the equities ...

On December 21, 2022, the U.S. Court of Appeals for the Ninth Circuit ruled that the Environmental Protection Agency’s (EPA) 2019 registration of the pesticide “sulfoxaflor” violated the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by unconditionally expanding allowed uses of the pesticide to blooming crops and removing certain restrictions. The court held that the agency violated the ESA by not making an “effects” determination to trigger “consultation” with a wildlife agency and violated FIFRA by failing ...

On November 16, 2022, the U.S. District Court for the Northern District of California (District Court) remanded three sets of Endangered Species Act (ESA) regulations promulgated in 2019 under the Trump administration back to the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) for reconsideration. The three regulations addressed: how species are listed and delisted and critical habitat designated under ESA section 4; interagency consultation under ESA section 7; and a final rule repealing USFWS’s blanket ESA ...

On September 21, 2022, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) stayed a July 5, 2022 order of the U.S. District Court for the Northern District of California (District Court) vacating several Endangered Species Act (ESA) regulations promulgated by the Trump Administration in 2019 (2019 Rules). In a brief order, the Ninth Circuit indicated the District Court “clearly” erred in vacating the 2019 Rules without first ruling on their underlying legal validity. As a result of the decision of the Ninth Circuit, the District Court’s vacatur of the 2019 Rules is ...

On July 5, 2022, the U.S. District Court for the Northern District of California issued an order vacating three Trump-era regulations implementing the Endangered Species Act (“ESA”).

In 2019, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (collectively, the “Services”) issued three final rules (“2019 ESA Rules”) modifying how the Services implement the ESA, including: (1) a rule under section 4 of the ESA concerning how the Services list, delist, and reclassify endangered or threatened species and the criteria for ...

On March 22, 2022, the Office of Information and Regulatory Affairs (OIRA) received from the U.S. Fish and Wildlife Service (Service) an Endangered Species Act (ESA)-specific compensatory mitigation policy (Policy). While the text of the Policy is not publicly available at this time, many have speculated that an updated Policy may mirror that which was in place under the Obama Administration.

On December 27, 2016, the Service published its final ESA Compensatory Mitigation Policy (2016 Policy) establishing the agency’s goal that compensatory mitigation provided under ESA ...

Last Friday, the U.S. District Court for the Eastern District of California issued an order on competing motions in the coordinated cases challenging the 2019 biological opinions (BiOps) that govern operation of California’s State Water Project and the federal Central Valley Project (Projects). The hefty order, which spanned over a hundred and twenty pages, attempted to distill the thousands of pages of briefing the parties submitted on the matter. Admittedly, stakes were high: these two Projects supply water to more than 25 million Californians and to farmers across the ...

On February 9, 2022, the U.S. District Court for the District of Colorado found that the Bureau of Land Management (BLM) violated the Endangered Species Act (ESA) when it failed to reinitiate consultation with the U.S. Fish and Wildlife Service (Service) prior to approving oil and gas leases. BLM had issued the leases for parcels of land in Southwest Colorado located within Gunnison sage-grouse (Centrocercus minimus) habitat and other proposed and existing areas of environmental concern.

The ESA requires federal agencies to review federal actions “at the earliest possible time ...

On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies. Department of the Interior (DOI) entries on the Unified Agenda reveal a lengthy set of planned regulatory actions, some of which may have an impact on development and deployment of energy, construction and operation of transportation and other infrastructure, and various other economic activities. … 

On August 11, 2021, the U.S. Court of Appeals for the Ninth Circuit granted partial vacatur of an appeal brought by the U.S. Army Corps of Engineers (Corps) challenging a district court decision to vacate and enjoin use of the 2017 version of nationwide permit 12 (NWP 12).

The underlying lawsuit was brought by Northern Plains Resource Council against the Corps over the Corps’ authorization of impacts to waters of the United States under NWP 12 in connection with the Keystone XL pipeline. In April 2020, the U.S. District Court for the District of Montana vacated NWP 12 throughout the ...

On June 4, 2021, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act (ESA) finalized under the prior administration. The U.S. Fish and Wildlife Service (Service) has not yet published these proposed rules in the Federal Register, nor has the Service provided the exact dates when it intends to publish the proposed rules.

In its announcement, the Service indicates its intent to rescind regulations governing how the Service conducts critical habitat exclusion analyses under ESA section 4(b)(2) and how ...

Today, the U.S. Army Corps of Engineers (Corps) appealed to the United States Court of Appeals for the Ninth Circuit the decision of a lower court to vacate nationwide permit 12 (NWP 12) until the Corps completes consultation under section 7 of the Endangered Species Act (ESA). The case stems from controversy surrounding the Keystone XL pipeline. As previously reported on this blog, on May 11, 2020, the lower court amended its original order vacating NWP 12 for all purposes by limiting the vacatur only to new oil and gas pipeline construction. The court’s amended order allows use of NWP ...

Today, the United States District Court for the District of Montana issued an order amending its previous order, which had invalidated nationwide permit 12 (NWP 12) on the basis that the U.S. Army Corps of Engineers (Corps) failed to engage in a programmatic Endangered Species Act (ESA) section 7 consultation when the Corps reissued NWP 12 in 2017.  The case arose out of the controversy over the Keystone XL Pipeline. The effect of the court’s prior ruling vacated NWP 12 in its entirety and enjoined its use to authorize impacts to waters of the United States under the Clean Water Act.  NWP 12 ...

The United States Court of Appeals for the Tenth Circuit recently affirmed a lower court decision that the U.S. Army Corps of Engineers need not consult with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act regarding the operation of dams and other facilities on the Rio Grande River, in WildEarth Guardians v. U.S. Army Corps of Engineers, No. 18-2153 (10th Cir. Jan. 17, 2020).  The dispositive issue in the case was whether the Corps has discretion to act such that it is obliged to engage in consultation regarding the effects of its operation of the Middle Rio ...

In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the ...

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) announced the finalization of regulations governing implementation of various aspects of the Endangered Species Act (ESA). Among those regulations were rules setting forth how the Services and other federal agencies were to consult on potential impacts of federal activities on ESA-listed species and designated critical habitat.  The new rules were to go into effect on September 26, 2019.  Today, the Services announced that the effective date for the interagency consultation ...

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register ...

As we reported here, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (together, the Services) recently proposed revisions to the regulations that implement portions of the Endangered Species Act (ESA). The submission deadline for comments was September 24, 2018.  If enacted, the Services assert that the proposed revisions would, among other things, streamline ESA consultations with other federal agencies and clarify the jeopardy standard.

The proposed revisions sparked a flurry of last minute comment submissions from environmental groups, who ...

In recent weeks, the Trump Administration and Congress have proposed changes to the Endangered Species Act (ESA) and its implementing regulations. Lawmakers from the Congressional Western Caucus introduced nine bills that would, according to the 15 legislators that introduced the bills, amend and modernize the ESA.  The lawmakers assert that the bills would also incentivize voluntary conservation efforts, let states enter into cooperative agreements for recovery, and prioritize data from local communities in making scientific decisions about conservation.

The bills ...

In Friends of the River v. National Marine Fisheries Service, the U.S. District Court for the Eastern District of California rejected challenges to Army Corps of Engineers and National Marine Fisheries Service decisions regarding the impact of dams, hydropower facilities, and water diversions along the Yuba River on listed fish species, the spring-run Chinook salmon (Oncorhynchus tshawytscha), the Central Valley steelhead (Oncorhynchus mykiss), and the North American green sturgeon (Acipenser medirostris).  In so doing, the court addressed a number of issues that may arise ...

On October 25, 2017, the U.S. Department of the Interior (DOI) released a report entitled Review of the Department of the Interior Actions that Potentially Burden Domestic Energy identifying agency actions that potentially burden the development or use of domestic energy resources.  This report, generated in response to Executive Order 13783, identifies several costly and burdensome regulations that DOI believes hamper the production or transmission of domestic energy.  The report pays particular attention to the oil, natural gas, coal, and nuclear energy sectors, and ...

On May 8, 2017, the U.S. District Court for the Northern District of California granted, in part, a motion for summary judgment brought by plaintiffs in a suit challenging the U.S. Environmental Protection Agency’s (EPA) approval of the registration and use of 73 pesticides containing the active ingredients clothianidin and thiamethoxam.  See Ellis v. Housenger, Case No. 13-cv-01266-MMC, 2017 U.S. Dist. LEXIS 70107 (N.D. Cal. May 8, 2017).  Plaintiffs, a collection of individuals and a number of environmental and advocacy groups, alleged that EPA’s decision to allow ...

In December 2015, Defenders of Wildlife employees published an article in the Proceedings of the National Academy of Sciences, in which they compiled and conducted basic statistical analyses of data regarding section 7 consultations from 2008 to 2015.  Among their findings were the following:

• there were 81,461 informal and 6,829 formal consultations during that period;
• only two consultations resulted in jeopardy determinations; and
• the median duration of informal and formal consultations was 13 days and 62 days.

The authors also presented data sorted by geographic region ...

On December 3, 2015, the U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Oregon’s denial of a preliminary injunction sought by environmental plaintiffs to enjoin the Douglas Fire Complex Recovery Project in Oregon’s Klamath Mountains.  Cascadia Wildlands v. Thrailkill, No. 14-35819 (9th Cir. Dec. 3, 2015).  The environmental groups asserted that the Bureau of Land Management’s (BLM) combined recovery project and logging plan to salvage acreage burned by the Douglas Complex Fire would irreparably harm the threatened ...

On August 31, 2015, the U.S. District Court for the District of Columbia largely upheld the National Marine Fisheries Service’s (Service) Biological Opinion (BiOp) addressing the impacts of seven fisheries on the Northwest Atlantic Distinct Population Segment (DPS) of loggerhead sea turtles (Caretta caretta).  The plaintiff, an ocean conservation organization, challenged the Service’s conclusion in the BiOp that the activities of the seven fisheries are not likely to jeopardize the continued existence of the Northern Atlantic DPS.  The BiOp was accompanied by an ...

On June 17, 2015, the U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to reinitiate consultation with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of a revised critical habitat designation on the Canada lynx (Lynx canadensis).  Cottonwood Environmental Law Center v. U.S. Forest Service, No. 13-35624 (9th Cir. Jun. 17, 2015) (pdf).  The Canada lynx was listed as threatened in 2000, and a limited amount of critical habitat was designated for the species in 2006 ...

On June 15, 2015, Senator James Inhofe (R-Okla.), Chairman of the U.S. Senate Committee on Environment and Public Works, and Congressman Rob Bishop (R-Utah), Chairman of the U.S. House Committee on Natural Resources, sent a letter to Gina McCarthy, Administrator for the U.S. Environmental Protection Agency (EPA), criticizing the EPA’s failure to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) regarding the potential impacts of the Obama administration’s proposed Clean Power Plan on endangered and threatened species ...

On May 1, 2015, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the wildlife agencies) issued a final rule amending the regulations governing consultation under section 7 of the Endangered Species Act (ESA) in order to codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion.  The final rule also provides that consultations on programmatic actions that would not result in incidental take without specific future actions will not be ...

The Transportation Research Bureau ("TRB"), a division of the National Research Council within the National Academies, has released a report entitled Innovative Airport Responses to Threatened and Endangered Species (pdf).  The report is intended to assist airport sponsors and operators in addressing federally listed species issues on or near their facilities.  The introduction to the report includes the following summary of its contents:

"ACRP Report 122 first introduces relevant regulations and then provides a discussion of potential areas of conflict between ...

On November 24, 2014, the National Marine Fisheries Service (Service) issued (pdf) a new Biological Opinion (BiOp) (pdf) for the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit Program under the Clean Water Act.  The BiOp constitutes the conclusion of the formal programmatic consultation process between the Corps and the Service under the Endangered Species Act (ESA) for the Corps’ revisions to and renewal of expiring nationwide permits authorizing a wide variety of activities under the Clean Water Act, such as mooring buoys, residential developments, utility ...

The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and Wildlife Service regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog (Rana sierrae) before proceeding further with the Project.

The Forest Service approved the Upper Echo ...

In a unanimous decision, eleven active judges on the United States Court of Appeals for the Ninth Circuit held that the duty to consult under section 7(a)(2) of the Endangered Species Act (ESA) when a federal agency action may affect a listed species or designated critical habitat of such species applies to the decision of the Bureau of Reclamation (Bureau) to renew long-term contracts to provide water to non-Federal parties. The decision, which reversed prior decisions by a three-judge Ninth Circuit panel and federal district court, effectively requires the Bureau to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of contract renewals on the threatened delta smelt and to renegotiate the contracts following such consultation.

The decision has potentially far-reaching implications in California because it suggests that even those who hold long-term contracts with the United States for the provision of water or senior water rights under state law must comply with the Endangered Species Act.

In 2012, the Mill Fire burned almost 30,000 acres in California, destroying large areas of forest, including threatened Northern spotted owl (Strix occidentalis caurina) habitat.  Even after the Mill Fire was finally snuffed out, it continued to have a lasting impact on the environment, as the fire created hazardous conditions along roads and trails used by the public and the National Park Service.  

After preparing an Environmental Assessment and Biological Assessment, on April 23, 2013, the U.S. Forest Service (Forest Service) approved the Mill Fire Salvage ...

On June 11, 2013, the U.S. Army Corps of Engineers issued a guidance memo (pdf) regarding its obligations under section 7 of the Endangered Species Act.  The memo focuses on the Corps’ consultation obligations under section 7(a)(2).  Notably, the Corps makes no reference to the Corps’ obligation under section 7(a)(1) to utilize [its] authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.

Section 7(a)(2) requires a federal action agency such as the ...

In a published opinion (pdf) affirming the denial of preliminary injunctive relief, the U.S. Court of Appeals for the Ninth Circuit held that "there is no statutory mandate to consider cumulative effects during informal consultation."  Conservation Congress v. U.S. Forest Serv., No. 12-16452 (June 13, 2012).

In order to address issues in the Shasta-Trinity National Forest, the U.S. Forest Service proposed the Mudflow Vegetation Management Project (Project).  The Project included a variety of activities, including thinning, sanitation, and regeneration.  Because the ...

On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.

In a recently issued draft biological opinion (PDF) , the National Marine Fisheries Service (Service) has concluded that EPA's registration of products containing the herbicides oryzalin, pendimethalin, and tricluralin is likely to jeopardize the survival of approximately half of the Pacific salmonid populations listed under the Endangered Species Act (ESA).

The draft biological opinion is the latest milestone in a series of controversial ESA section 7 consultations between the Environmental Protection Agency (EPA) and the Service regarding EPA's ...

On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered ...

The United States District Court for the District of Oregon issued a decision (pdf) invalidating the National Marine Fisheries Service's (NMFS) 2008 and 2010 biological opinions for operation of the Federal Columbia River Power System (FCRPS) by the Army Corps of Engineers and Bureau of Reclamation after the parties to the litigation challenging those decisions filed cross-motions for summary judgment. The court held that NMFS improperly made a no jeopardy determination with respect to certain listed salmonids on the basis of unidentified habitat mitigation measures.

The ...