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Supreme Court and Ninth Circuit Limit Reach of Freedom of Information Act

The Freedom of Information Act requires that federal agencies make records available to the public upon request, unless the records fall within one of nine exemptions. “Exemption 5” covers inter-agency or intra-agency...more

US Fish and Wildlife Service Adopts New Regulation for Critical Habitat Exclusions

The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act. The final...more

New Regulation Defines the Term “Habitat” Under the Endangered Species Act

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service on December 16, 2020, jointly adopted a final regulation providing a one-sentence definition for the term “habitat” under the Endangered Species...more

Sacramento Superior Court Rules That Insects Are Not Eligible for Listing Under the California Endangered Species Act

In a widely watched case, the Sacramento Superior Court court ruled that insects are not eligible for listing under the California Endangered Species Act. Almond Alliance of California v. California Department of Fish and...more

Trump Administration Finalizes Major Changes to Endangered Species Act Regulations

The U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a set of three new final rules on August 12, 2019, that substantially revise the regulations implementing the Endangered Species Act. The new...more

Supreme Court Limits Authority to Designate Critical Habitat Under Endangered Species Act

In a unanimous decision with immediate repercussions for the administration of the Endangered Species Act (ESA), the U.S. Supreme Court held that an area is eligible for designation as critical habitat under the ESA only if...more

Trump Administration Withdraws Obama-Era Environmental Mitigation Policies

Late last week, the U.S. Fish and Wildlife Service withdrew two environmental policies adopted in late 2016 by the Obama administration that address mitigation for impacts to natural resources. These two policies established...more

Major Changes Proposed to Endangered Species Act Regulations

The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) published three proposed rules last week that would revise the regulations implementing portions of the...more

U.S. Fish and Wildlife Service Issues Guidance on Endangered Species Act Incidental Take Permits

The U.S. Fish and Wildlife Service issued a guidance memorandum addressing when an incidental take permit may be needed under Section 10(a)(1)(B) of the Endangered Species Act for projects that modify habitat of federally...more

Impact of Ninth Circuit Upholding Biological Opinion for Silver State South Solar Project in Nevada

In Defenders of Wildlife v. Zinke, the U.S. Court of Appeals for the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the...more

New Critical Habitat Regulations Published Under the Endangered Species Act

On February 11, 2016, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service jointly published final regulations and a final policy addressing critical...more

Birds of a Feather: The 5th Circuit Joins the 8th and 9th Circuits’ Narrow View of the MBTA’s Take Prohibition

On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit held in United States v. CITGO Petroleum Co. that the Migratory Bird Treaty Act’s take prohibition does not include the unintentional take of migratory...more

Federal District Court Strikes Down Eagle Act Rule

On August 11, 2015, the U.S. District Court for the Northern District of California struck down the U.S. Fish and Wildlife Service’s so-called “30-Year Rule,” which had extended from 5 years to 30 years the duration of...more

Final Endangered Species Act Policy Revises Definition of “Significant Portion of Its Range”

On July 1, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published a final policy providing their interpretation of the phrase ‘‘significant portion of its range,’’ which is part...more

Proposed Endangered Species Act Regulations Would Change Critical Habitat Rules

On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published two proposed regulations and a draft policy concerning critical habitat designations under the Endangered Species...more

Ninth Circuit Upholds 2008 Biological Opinion Restricting Operations Of California Water Projects

On March 13, the Ninth Circuit issued its long-awaited decision in the latest round of the delta smelt litigation, upholding the 2008 Biological Opinion prepared by the U.S. Fish & Wildlife Service for the combined operations...more

Final Rule Issued On Economic Impact Analyses For Endangered Species Act Critical Habitat Designations

On August 28, 2013, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) issued a final rule revising their regulations for analyzing the economic impacts of critical habitat designation...more

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