Following a short delay caused by the Trump Administration’s January 20, 2017 White House Memorandum halting implementation of several regulatory processes, the rusty patched bumble bee was officially listed as an endangered species by the U.S. Fish and Wildlife Service (the “Service”) on March 21, 2017.

Continue Reading Rusty Patched Bumble Bee Placed on Endangered Species List

On March 1, 2017, the Senate confirmed Ryan Zinke as Secretary of the Interior.  In grand fashion, Secretary Zinke arrived to his first day of work—at the invitation of the National Park Service (“NPS”) Park Police—riding an Irish sport horse.  As Secretary of the Interior, Zinke’s responsibilities will include overseeing the management of national lands, waters and resources through the Bureau of Land Management (“BLM”), the NPS, the Fish and Wildlife Service (“FWS”), the Bureau of Indian Affairs, and several other agencies.  Secretary Zinke is a former Navy SEAL and a former Republican Congressman from Montana.

Continue Reading New Secretary of the Interior Makes Grand Entrance Following Senate Confirmation

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.

Continue Reading Court Grants 60-Day Stay in Critical Habitat Litigation

In late December, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, “the Services”) issued the final revised joint Habitat Conservation Planning Handbook (HCP Handbook).  81 FR 93702.  The original HCP Handbook was issued in 1996 and later revised in 2000.  Most recently, the Services held a 60-day comment period on draft revisions to the Handbook in June 2016, during which 54 public comments were submitted.

Continue Reading Final Habitat Conservation Planning Handbook Issued

On December 27, 2016, the U.S. Fish and Wildlife Service (FWS or the Service) issued the final Endangered Species Act (ESA) Compensatory Mitigation Policy (the Policy).  81 FR 95316.  The Policy is the first comprehensive treatment of compensatory mitigation under ESA authority to be issued by the FWS following previous piece-meal and disjointed policies.

Continue Reading Fish and Wildlife Service Issues First Comprehensive Compensatory Mitigation Policy

On January 11, the U.S. Fish and Wildlife Service (FWS) published its final listing of the Rusty Patched Bumble Bee as endangered under the Endangered Species Act (ESA).  A proposed listing of the bee was previously published in September 2016.  The decline in the species is due to a number of factors such as pathogens, pesticides, habitat loss and degradation, small population dynamics, and the effects of climate change.

Continue Reading FWS Lists Rusty Patched Bumble Bee as Endangered

On December 16, the U.S. Army Corps of Engineers (the Corps) issued a proposed rule to update and clarify its policies governing the use of its reservoir projects for domestic, municipal and industrial water supply under Section 6 of the Flood Control Act of 1944, 33 U.S.C. § 708 and the Water Supply Act of 1958, 43 U.S.C. § 390b. This is the first time the Corps has proposed a rule to set policy on these important issues. Continue Reading U.S. Army Corps of Engineers Releases First Ever Proposed Rule Governing Use of Its Reservoirs for Water Supply

On December 14, 2016, the United States Fish and Wildlife Service (“FWS”) finalized revisions to its regulations for nonpurposeful (or incidental) take of eagles and eagles nests under the Bald and Golden Eagle Protection Act (“Eagle Act”).  According to FWS, the rule is intended to balance clean energy development and eagle conservation goals.  FWS acknowledges the Obama Administration’s efforts to expand wind energy development and how the accompanying growth has impacted eagles, but emphasizes its belief that wind energy development does not pose a disproportionate risk to eagles as compared to other activities that may incidentally take eagles.  FWS’s revisions are clearly drafted with the wind industry in mind.

Continue Reading Fish and Wildlife Finalizes Helpful Revisions to Eagle Take Permit Regulations

On November 29, eighteen states filed suit in the Southern District of Alabama challenging a rule recently finalized by the Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”), the two agencies charged with the implementation of the Endangered Species Act (“ESA”). The suit concerns the Services’ revision of the definitions of “critical habitat” and “adverse modification” in their regulations implementing the ESA. The states argue the revised definitions are inconsistent with the ESA, as the new rules expand the Services’ authority to designate areas that are not currently occupied by threatened or endangered species as critical habitat (described in another blog post here). Specifically, the states assert that the Services must explain how unoccupied areas can be “essential” to the conservation of a species, and therefore deserve protection under the ESA. Similarly, the states take issue with the Services’ new ability to designate critical habitat based on biological factors not yet present in an area.

Continue Reading States Challenge Critical Habitat Rules Under Endangered Species Act


On October 24, 2016, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (“NMFS”) decision to list certain subspecies of the Pacific bearded seal as threatened under the Endangered Species Act (“ESA”), concluding that NMFS had not acted arbitrarily by relying on climate change projections to determine that the seal is likely to become endangered in the foreseeable future.  After being petitioned by the Center for Biological Diversity (“CBD”), NMFS had concluded in 2012 that the species were likely to become endangered by 2095.  The Alaska Oil and Gas Association, the State of Alaska and North Slope Borough (collectively, “Plaintiffs”) challenged the listing in federal district court in Alaska, arguing that NMFS improperly relied on speculative climate change projections beyond 2050 to make its determination.  The District Court had ruled for the Plaintiffs, concluding that NMFS’s reliance on long-term climate projections was inappropriate due to their volatility.  

Continue Reading 9th Circuit Upholds ESA Listing Decision Based on Climate Change Modeling