This week, the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration issued a rule rescinding the rule issued in 2020 defining “habitat” for the purposes of determining what constitutes “critical habitat” under the Endangered Species Act. You see, in a piece of expert legislative drafting in 1973, Congress defined the term “critical habitat” without defining “habitat” in the first place. Sigh.
This came to a head in 2018 in Weyerhaeuser v.… More
The Fish and Wildlife Service and the National Oceanic and Atmospheric Administration have released final rules amending significant parts of the regulations implementing the Endangered Species Act.
How big an impact will the changes have? Well, there’s no doubt that the supporters of the regulations hope that they will be substantial and the opponents are worried that they will be substantial,… More
The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog. 
There are only 100 of these “shy” frogs left, and none of them live in the area in Louisiana designated as critical habitat by the FWS.
The focus of the panel decision – and both the panel dissent and the dissent from the denial of en banc review – was whether private land could be considered critical habitat for the dusky gopher frog if no frogs live in the area and the area could not currently support the frog.… More
On Monday, the 9th Circuit reversed a district court decision that rejected the critical habitat designated by the Fish and Wildlife Service for protection of the polar bear, 
which was listed as threatened in 2008. The case is largely a straightforward application of accepted Endangered Species Act principles, but does make a few important points.
As the 9th Circuit pointed out, the district court’s logic was flawed. … More
On Tuesday, the 9th Circuit Court of Appeals affirmed the Commerce Department’s designation of critical habitat for the southern distinct population segment of green sturgeon, 
once again reminding us just how difficult it is to fight city hall – or the capital – where the ESA is concerned.
Section 4 of the EPA provides that
The Secretary shall designate critical habitat .… More