Endangered Species Act

Subscribe to Endangered Species Act via RSS

By Sara Orr and Jennifer Roy

On September 4, 2015, the US Court of Appeals for the Fifth Circuit issued a ruling in United States v. CITGO that a “taking” subject to prosecution under the Migratory Bird Treaty Act (MBTA) does not include the unintentional take of migratory birds. Reversing a district court decision and joining the position of the Eighth and Ninth Circuits, the appellate court held that the MBTA’s take prohibition is limited to “deliberate acts done directly and intentionally to migratory birds,” effectively exempting take that occurs incidental to otherwise lawful activities. While such incidental take may still be subject to prosecution under other federal laws protecting birds, such as the Bald and Golden Protection Act or the Endangered Species Act, the Fifth Circuit concluded that unintentional acts are not subject to the strict liability penalties of the MBTA. This ruling may provide additional assurances to a wide variety of industries with operations in the Fifth, Eighth and Ninth Circuits that have the potential to impact migratory birds, particularly oil and gas, wind, and solar energy. Given the divide among the courts and the importance of the issue, however, it is possible that the U.S. Supreme Court will take up the issue in the future.

The Migratory Bird Treaty Act

Congress enacted the MBTA in 1918 to implement a treaty between the United States and Great Britain. The general policy of the MBTA is to provide for the “preservation, distribution, introduction, and restoration of game birds and other wild birds.” The MBTA prohibits the take of all listed birds, and the take of any migratory bird’s parts, nest, or eggs without a permit. The regulations define “take” as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt any of these acts.

By Marc Campopiano and Max Friedman

Following the May 28, 2015 release by the Bureau of Land Management (BLM) of 14 final Environmental Impact Statements (EISs) for land use plans designed to provide greater protection to the greater sage-grouse on approximately 50 million acres of BLM-managed land in 10 different western states, more than 40 environmental groups, industry organizations, states, and counties have  filed formal complaints with the BLM, protesting various aspects of the plans.  BLM aims to provide sufficient…

By Christopher Garrett & Daniel Brunton

On May 27, 2015, the United States Court of Appeals for the Ninth Circuit upheld the US Bureau of Land Management’s (BLM) grant of a right-of-way over federal land for a road (the Road Project) for a wind energy project developed by North Sky River Energy, LLC (North Sky) on private land (the Wind Project).[1] On the facts before it, the court held that the Wind Project was neither a federal action nor…

By Marc Campopiano, Joshua Bledsoe, Jennifer Roy, James Erselius

Phase I of the Desert Renewable Energy Conservation Plan (“DRECP”) is underway on the 9.8 million acres of public land managed by the Bureau of Land Management (“BLM”). As discussed in our previous post, the four lead agencies responsible for the plan introduced a phased approach to implementing the DRECP in March 2015 in response to public comments. Under Phase I of this approach, between 81,000 and…

By Marc Campopiano, Max Friedman and Gunnar Gundersen

On Thursday, May 28, 2015, the Bureau of Land Management (BLM) released fourteen final Environmental Impact Statements (EISs) that incorporate greater-sage-grouse conservation measures into the land-use plans for about 50 million acres of BLM-managed land in 10 western states. The population of the sage-grouse has declined by more than half over the last decade. As discussed in our prior entry, the US Fish and Wildlife Service (FWS) is under a…

By Andrea Hogan, Mark Campopiano, Sara Orr, and Daniel Brunton

On May 26, nine western states filed an amicus brief in People for the Ethical Treatment of Property Owners  (PETPO) v. United States Fish and Wildlife Service urging the 10th Circuit Court of Appeals to limit the reach of the Endangered Species Act.

At issue in the case is a special regulation that the Fish and Wildlife Service adopted under section 4(d) of the Endangered Species Act…

By Marc Campopiano and Max Friedman

On May 18, 2015, the federal agencies that oversee the enforcement of the Endangered Species Act, the US Fish and Wildlife Service and National Marine Fisheries Service proposed significant changes to the process by which parties can petition for the listing of species as protected under the Act or the designation of critical habitat.

The proposed new rules, for which 60 days of public notice and comment will commence upon their publication in…

By Marc Campopiano and Gunnar Gundersen

On April 21, 2015, Sally Jewell, the Secretary of the Department of the Interior, announced that a sub-population of greater sage-grouse along the California-Nevada border does not require Endangered Species Act protection.

In 2010, the US Fish and Wildlife Service declared the bi-state population of greater sage-grouse a “distinct population segment” under the ESA because it has significant genetic differences from other greater sage-grouse. The population had declined significantly from urbanization, encroachment of sagebrush…

By Marc Campopiano and Max Friedman

On April 1, 2015, the US Fish and Wildlife Service (“FWS”) announced that it would list the northern long-eared bat as a “threatened species” under the Endangered Species Act (“ESA”).

The listing comes in response to a sharp drop of more than 90 percent of the northern long-eared bat’s population in the eastern portion of its range over the last decade.  In 2006, a new form of fungal disease, known as white-nose syndrome, began…

By Marc Campopiano, Josh Bledsoe, Jennifer Roy, and James Erselius

Concerns from local agencies, industry, and environmental groups over the long-awaited Draft Environmental Impact Report (“EIR”)/Environmental Impact Statement (“EIS”) for the Desert Renewable Energy Conservation Plan (“DRECP”)—a renewable energy and conservation plan covering 22.5 million acres of desert located in seven Southern California counties—have caused the responsible state and federal agencies to shift to a more limited phased approach.  In a March 10 statement, the four lead…