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.
Tag Archives: FWS
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
Earlier this week, the 10th Circuit Court of Appeals reversed a District Court decision and vacated an injunction which had prevented the U.S. Fish & Wildlife Service from reintroducing the Mexican gray wolf onto certain federal lands in New Mexico. The decision seems fairly straightforward and plainly correct. The interesting aspect of the case is the Court’s discussion of state sovereignty.
The State of New Mexico argued in part that the reintroduction of wolves onto federal land without a permit from the State was a violation of the State’s sovereignty. … More
On Wednesday, the 10th Circuit Court of Appeals held that regulation of takes of the Utah prairie dog, a purely intrastate species, does not violate the Constitution. Reversing the decision below, the 10th Circuit joined all four other circuit courts to have dealt with the issue thus far in upholding the ESA against such Commerce Clause challenges.
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
FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.
As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine as threatened under the ESA. Bowing to the inevitable, the FWS has now published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.… 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.