Tag Archives: “critical habitat”

FWS and NOAA Decide That “Habitat” Should Not Be Defined By Regulation: I Hope This Is Good News

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

Six 5th Circuit Judges Oppose USFWS’s Critical Habitat Designation: Sounds Like Certiorari to Me

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

The Ninth Circuit Approves the FWS Polar Bear Critical Habitat Designation

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, polar-bear-cub-on-momwhich 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