Endangered Species Law & Policy

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 … 

Join us during CLE International's 5th Annual MBTA & BGEPA Conference in Denver, CO from February 1-2, 2023. This two-day conference will explore the latest developments arising under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).

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. … 

In the last few weeks, the U.S. Fish and Wildlife Service (Service) has published several major regulatory actions affecting federal avian protections.  The Service has repealed a Trump-era rule that excluded incidental take from liability under the Migratory Bird Treaty Act (MBTA), issued guidance for enforcement of the MBTA against incidental take, and invited comment on a potential MBTA permitting program.  Separately, the Service has invited comment on ways to improve its existing permitting program for the incidental take of eagles (Eagle Permit Program). … 

This week, the U.S. Fish and Wildlife Service (“USFWS”) announced the availability of two revised economic analysis documents related to the agency’s proposed rule concerning incidental take under the Migratory Bird Treaty Act (“MBTA”).  The documents evaluate the potential for the proposed rule to impact small entities, including businesses, governmental jurisdictions, and other organizations.

When federal agencies issue a new proposed or final rule, they are required under the Regulatory Flexibility Act of 1980 (“RFA”) to evaluate the potential effects ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden ...

On May 7, 2021, the U.S. Fish and Wildlife Service (USFWS), as many anticipated, published a proposed rule to revoke a Trump Administration rule impacting the scope of the Migratory Bird Treaty Act (MBTA).  The Trump Administration rule was finalized on January 7, 2021 and became effective March 8, 2021.  It clarified that the MBTA’s prohibition against the take of migratory birds did not extend to death or injury of migratory birds that results from, but is not the purpose of, an action (also known as incidental take).  Prior to the Trump Administration Rule, USFWS had, for decades ...

Recently, the Department of the Interior released a pre-publication version of a Federal Register notice delaying the effective date of the Migratory Bird Treaty Act (MBTA) take definitional rule to March 8, 2021, and opening a 20-day public comment period, which will close March 1, 2021.  The MBTA was enacted in 1918 to implement an international convention for the protection of migratory birds in response to declines in populations of a number of species of birds resulting from widespread hunting and poaching.  The take definitional rule states in full:

“The prohibitions of the ...

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement ...

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 ...

We recently recorded a podcast as part of the Environmental Law Institute’s (ELI) People Places Planet Podcast series “Engage the Experts.” In our recent discussion entitled “The Shifting Landscape of Renewable Energy Development,” we discuss recent changes in environmental regulations and related court decisions that are impacting project development, as well as what this shifting terrain means for the development, expansion and maintenance of renewable energy technologies. Tune in to learn about what recent regulatory and judicial developments mean for ...

Please join us for a complimentary webinar on July 30, 2020 from 11:00 a.m. – 12:30 p.m. PT, where we will discuss the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. We will examine...

Please join Brooke Wahlberg and Steve Quarles as they co-chair CLE International’s 3rd Annual MBTA & BGEPA Conference, happening on December 9-10, 2019, in Denver, CO. 

Named as both an “Energy & Environmental Trailblazer” by the National Law Journal, and a “Legend of Environmental Law” by the D.C. Bar Association, Steve is a veteran attorney who focuses his practice on addressing issues concerning federal wildlife laws (Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA) and Bald and Golden Eagle Protection Act (BGEPA)), federal lands and resources ...

On February 9, 2018, Nossaman veteran Environmental Law attorney Steven Quarles will be serving as a member of the faculty for the American Law Institute (ALI) CLE program, Environmental Law 2018.  The full conference, held from February 8-9, 2018 in Washington, DC, is the first national program of its kind, and the slate of confirmed speakers includes top tier environmental sector leaders from both the public and private sectors.  This essential conference has become the place for legal and environmental professionals from across the country to meet and explore ...

On December 22, 2017 the Department of the Interior (DOI) Solicitor's Office issued its revised interpretation of the Migratory Bird Treaty Act’s (MBTA) prohibition on the take of migratory bird species.  Official opinions from the DOI Solicitor’s Office are known as M Opinions and carry substantial weight in how DOI applies and enforces the various wildlife laws under its purview.  In January 2017, the prior DOI Solicitor issued Opinion M-37041, Incidental Take Prohibited Under Migratory Bird Treaty Act, which concluded that the MBTA’s broad prohibition on taking and ...

On November 1, 2016 the U.S. Fish and Wildlife Service (Service) announced its plan to issue what will be only the second programmatic eagle take permit under the Bald and Golden Eagle Protection Act (BGEPA) permit program since the program's establishment in 2009.  Programmatic permits may be sought to authorize eagle take that is associated with, but is not the purpose of, an activity if such take is compatible with the preservation of the bald eagle and the golden eagle and if the take is unavoidable even though advanced conservation practices are being implemented.

Alta ...

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 ...