Endangered Species Law & Policy

On January 13, 2021, the U.S. Fish and Wildlife Service (Service) published a final rule to remove the inland population of the Interior least tern (Sterna (now Sternula) antillarum) from the list of endangered and threatened wildlife under the Endangered Species Act (ESA).  Originally listed as an endangered species under the ESA in 1985, the Interior least tern is a small, fish-eating bird occurring along the Arkansas, Ohio, Mississippi, Missouri, Red, and Rio Grande rivers.  

Prior to listing, the Interior least tern’s population had fallen below 2,000 as a result of habitat ...

On December 31, 2020, the National Marine Fisheries Service (“NMFS”) proposed to amend regulations implementing the Atlantic Large Whale Take Reduction Plan (“ALWTRP” or “Plan”) with the stated goal of reducing the incidental mortality and serious injury to the endangered North Atlantic right whale, as well as fin whales and humpback whales, in the Northeast commercial lobster and crab trap/pot fisheries. The agency stated that the amendment is needed in order to comply with the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA” ...

On January 7, 2021, U.S. Fish and Wildlife Service (USFWS) published a final rule limiting the scope of the Migratory Bird Treaty Act (MBTA)’s prohibition on the take of migratory birds. The new rule excludes incidental take, meaning bird mortality that results from an action but is not the purpose of that action. 

This rule is the culmination of Trump Administration efforts that began shortly after it took office to reverse prior agency policy and limit the scope of the MBTA. The rule does not take effect until February 6, 2021 and so may be suspended by the incoming Biden ...

On December 3, 2020, the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, California Department of Fish and Wildlife, and other agencies (collectively, “Agencies”) announced an update to the standard Bank Enabling Instrument (“BEI”) template for use in connection with the development of mitigation banks that will be located in or propose service areas within the State of California.

BEI templates are used in connection with the approval of mitigation banks the purpose of which is to provide mitigation for projects that have received authorizations from ...

On December 17, 2020 the U.S. Fish and Wildlife Service (“USFWS”) published its 12-month finding that listing of the monarch butterfly (Danaus plexippus plexippus) is warranted but precluded by higher priority actions. With this finding, the monarch becomes a candidate species with a listing priority designation of “8.”  An “8” indicates the magnitude of threats to the monarch is moderate to low and those threats are imminent. In the announcement, the USFWS notes that 161 other species are currently prioritized above the monarch for listing consideration. Each year ...

On December 15, 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the agencies) released a pre-publication version of a final rule providing a definition of “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  The agencies released a proposed rule defining habitat in August 2020 in response to a unanimous decision by the U.S. Supreme Court in 2019 overturning a lower court decision that upheld a controversial determination of critical habitat by the U.S. Fish and ...

If you were unable to attend our recent webinar, “The New NEPA Regulations: A Practical Guide to What You Need to Know,” please check out the recording of our on-demand webinar, which can be accessed here. Additionally, we invite you to download the compilation of our eAlert series on the NEPA rewrite here.

Nossaman will continue to monitor litigation and other regulatory developments regarding NEPA in 2021 as we transition into a new Administration. Please stay tuned to our blog and subscribe to our mailing lists here in order to receive the latest updates on NEPA and other issues ...

On November 19, 2020, in a call back to its criminal lawsuit against Joseph “Tiger King” Maldonado-Passage, the U.S. Department of Justice filed a civil lawsuit against the husband and wife team who took over the wildlife park that was front and center throughout the Netflix hit series Tiger King – Jeffrey and Lauren Lowe. Unlike the prior lawsuit against Mr. Maldonado-Passage (previously covered here), the lawsuit against the Lowes does not seek jail time, nor does it seek damages. Instead, the lawsuit asks the U.S. District Court for the Eastern District of Oklahoma to (1 ...

In September 2020, the Council on Environmental Quality (CEQ) enacted new regulations that set forth procedures federal agencies are to utilize when implementing the National Environmental Policy Act (NEPA). Numerous commentaries published on the subject have either adopted a Chicken Little approach (i.e., sky is falling) to describing the changes, or an overly optimistic assessment of their likely implications for proponents of federal actions subjected to environmental review.

In order to understand these changes, please join our Environment and Land Use Group on ...

The Sacramento Superior Court upheld a challenge to a decision by the California Fish and Game Commission to designate four subspecies of bumble bees as candidates for protection under the California Endangered Species Act (CESA). The decision in Almond Alliance et al. v. California Fish and Game Commission reinforces a long line of authority dating back several decades suggesting that insects are not subject to protection under CESA. It also reflects respect for the role of the coordinate branches of government in formulating, executing and interpreting the laws that the ...