Last week, a federal judge granted a 60-day stay in litigation over critical habitat designation and policy pursuant to the Endangered Species Act (“ESA”).  The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”)—the agencies charged with carrying out such designations pursuant to the ESA—asked for the delay in order to allow incoming Trump Administration officials time to become familiar with the case.

The lawsuit (described in another blog post here) was filed in the Southern District of Alabama November 2016 by eighteen states, with two additional states joining later.  The plaintiff states challenged two joint rule modifications and one joint policy change implementing updated critical habitat rules pursuant to the ESA.  Most important, the rules modified the definitions of “critical habitat” and “adverse modification.”  The designation of critical habitat for threatened or endangered species has implications under Section 7 of the ESA (a detailed description of the rules is provided in another blog post here).

According to the challengers, the rules expand the Services’ authority to designate areas that are not currently occupied by threatened or endangered species as critical habitat and allow the agencies to potentially designate “entire states” as habitat for at-risk species.  Such authority amounts to an unlawful expansion of the government’s control over state lands.

According to the Services, requests to continue proceedings after an administration change are customary.  Barring additional extensions, the case will move forward in April.  For more information on the implications of the lawsuit or the rule, please contact Andrea Wortzel or Laura Boorman.