Endangered Species Law & Policy

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 received by the DOI, but due to the shutdown, none of those comments have been posted for public review on regulations.gov., as is the common practice.  Earlier this week, citing the government shutdown, more than 150 organizations and individuals requested that the DOI extend the public comment period by no fewer than 120 days.

FOIA is often used by both Endangered Species Act (ESA) practitioners and environmental litigants to obtain information regarding proposed or existing listings, critical habitat designations, consultations, and permitting actions. Practitioners and litigants alike have a vested interest in how FOIA is applied. For example, in a leaked September 6, 2018 memorandum from the U.S. Department of Justice (DOJ) to the U.S. Fish and Wildlife Service (Service), the DOJ asked the Service to limit public access to records relating to deliberations on how certain species would or should be protected under the ESA. Conservation groups have argued that the underlying purpose of the memorandum is to use FOIA’s exceptions to disclosure as a way to prevent the public from discovering political interference with what should be scientific decisions.

As of January 16, 2019, the DOI has not yet extended the public comment deadline on its proposed changes to the FOIA regulations, and has not provided any indication of whether or not it intends to do so.