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Permian Predicament Comes to Pass: ‎USFWS Promulgates ‎Endangered Listing for Dunes Sagebrush ‎Lizard

On May 20, 2024, the U.S. Fish and Wildlife Service (Service) published a final rule listing the dunes sagebrush lizard (DSL) as endangered under the federal Endangered Species Act (ESA). The DSL is a small, spiny lizard...more

Revisions to Endangered Species Act ‎Regulations Reverse Some Trump, ‎Keep Some Trump, Raise ‎Opportunity for Mischief

On April 5, 2024, The U.S. Fish & Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) finalized a series of rules reversing certain revisions to the Services’...more

USFWS Spreads Its Wings – Final Eagle ‎Permit Rule Embodies ‎New Approach to Troubled Permit ‎Process

On February 12, 2024, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) issued a long-awaited final rule revising its eagle permit program under the Bald and Golden Eagle Protection Act (15 U.S.C. 668-668d) (“BGEPA”)....more

Another Predicament in the Permian: ‎USFWS Proposes Renewed Endangered Listing for ‎Dunes ‎Sagebrush Lizard

On July 3, 2023, the U.S. Fish and Wildlife Service (“the Service”) proposed to list the dunes sagebrush lizard (Sceloporus arenicolus) (“DSL”), a species found only in southeastern New Mexico and west Texas, as an endangered...more

A Precautionary Tale: D.C. Circuit ‎Strikes Down Precautionary Principle Under the ‎Endangered ‎Species Act

On June 16, 2023, a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled unanimously that the National Marine Fisheries Service (“NMFS”), when faced with insufficient data, cannot rely on...more

Lek It or Not: ESA Listing of Lesser ‎Prairie-Chicken Has Major ‎Implications for Energy ‎Projects in ‎the Southwest

On November 25, 2022, the U.S. Fish and Wildlife Service (the “Service”) published a final rule listing two Distinct Population Segments (“DPSs”) for the lesser prairie-chicken (Tympanuchus pallidicinctus, “LEPC”) under the...more

Three’s Company: USFWS Proposes ‎Listing Tricolored Bat as Endangered, Joining Indiana and ‎Northern Long-Eared Bats

On September 14, 2022, the U.S. Fish and Wildlife Service (the “Service”) published a proposed rule to list the tricolored bat (Perimyotis subflavus, “TCB”) as endangered under the Endangered Species Act (“ESA”). This action,...more

Small Bat, Big Implications: USFWS to ‎Uplist Northern Long-Eared Bat From Threatened to ‎Endangered

In today’s Federal Register, the U.S. Fish and Wildlife Service (“USFWS”) published a proposed rule under the federal Endangered Species Act (“ESA”) to reclassify the northern long-eared bat (“NLEB”) from “threatened” status...more

Playing Chicken: What USFWS’ Proposed Listing of the Lesser Prairie Chicken Means for Energy Companies

On May 24, 2021, the U.S. Fish and Wildlife Service (FWS) released a proposed rule to list two distinct population segments (DPS) of the lesser prairie chicken (LEPC) under the Endangered Species Act (ESA). If the listing...more

Fish and Wildlife Service Proposes to Restore Incidental Take Prohibition Under Migratory Bird ‎Treaty Act – What You Need to Know

On May 7, 2021, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) published a proposed rule that would restore the traditional interpretation of the Migratory Bird Treaty Act (“MBTA”) as prohibiting incidental take...more

Trump Administration’s MBTA M-Opinion Vacated: What You Need to Know

The Migratory Bird Treaty Act (“MBTA”) was first adopted in 1918, and for most of its existence the Department of the Interior (“DOI”) interpreted it to prohibit any taking or killing of migratory birds, intentional or not. ...more

Court Narrows Nationwide Permit 12 Ruling: Relief for Renewables, But More Pain for Pipelines

In a hotly anticipated ruling on May 11, the federal district court that just a few weeks ago stunned and stalled a wide range of industries by vacating the U.S. Army Corps of Engineers’ (“Corps”) Nationwide Permit (“NWP”)...more

“Threatened” Listing for Northern Long-Eared Bats Endangered by District Court Decision: What You Need to Know

On January 28, the D.C. District Court issued a significant decision in litigation brought by a group of environmental organizations challenging the U.S. Fish and Wildlife Service’s (“FWS”) 2015 listing of the northern...more

USFWS Guidance Implementing Solicitor’s M-Opinion Finally Grounds the Migratory Bird Treaty Act

On December 22, 2017 the U.S. Department of the Interior’s (“DOI”) Office of the Solicitor issued Memorandum M-370501 (the “M-Opinion”) interpreting the take prohibition of the Migratory Bird Treaty Act2 (“MBTA”) to apply...more

U.S. Fish and Wildlife Service Finalizes Revamp of Eagle Permit Rule: What You Need to Know

On December 16, 2016 the U.S. Fish and Wildlife Service (Service) published a final rule (Final Rule) revising its 2009 regulations establishing requirements for issuance of permits for “non-purposeful take” of bald and...more

Black-Capped Vireo to be Removed From Endangered List, Un-Capping Development in Texas and Oklahoma

On December 15, 2016, the U.S. Fish & Wildlife Service (“USFWS” or “Service”) published a proposed rule (the “Proposed Rule”) to remove the black-capped vireo (“BCV”) from the list of endangered and threatened species under...more

Proposed “Endangered” Listing for Rusty Patched Bumble Bee Creates a Buzz in the Energy Industry

On September 22, 2016 the U.S. Fish and Wildlife Service (Service) published a proposed rule to list the rusty patched bumble bee (Bombus affinis) as “endangered” under the federal Endangered Species Act (the ESA). If...more

U.S. Fish and Wildlife Service Proposes Revamp of Eagle Permit Rule – What You Need to Know

On May 6, 2016 the U.S. Fish and Wildlife Service (Service) published a proposed rule (the Proposed Rule) to revise its 2009 rule establishing the requirements for issuance of permits for “non-purposeful take” of bald and...more

Federal Court Refuses To Reinstate Lesser Prairie Chicken Listing: What Now, And What’s Next?

Last fall a federal court in the Western District of Texas upheld a challenge to the U.S. Fish & Wildlife Service’s (Service) decision to list the lesser prairie chicken (LEPC) as a threatened species under the federal...more

USFWS Issues Broader 4(d) Rule for Northern Long-Eared Bats: What it Means for Energy Developers

On January 13, the U.S. Fish and Wildlife Service (Service) released its Final 4(d) Rule for the Northern Long-Eared Bat (Final Rule). The Final Rule greatly expands upon the scope of the interim 4(d) rule that the Service...more

Fifth Circuit Holds that Migratory Bird Treaty Act Does Not Apply to Incidental Takes - What It Means for Energy Developers

On September 4, 2015, the Fifth Circuit Court of Appeals reversed the misdemeanor convictions of Citgo Petroleum Corporation and Citgo Refining and Chemicals Company, L.P. (collectively Citgo) for “taking” migratory birds in...more

Lesser Prairie Chicken Listing Vacated by Federal Court - What It Means for Energy Development

Last week, in a decision that surprised many, a federal court in Texas overturned the U.S. Fish & Wildlife Service’s (Service) decision last year to list the lesser prairie chicken (LEPC) as “threatened” under the federal...more

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