D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales

By Michelle C. Pardo

On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the “benefit of the doubt” to endangered species or rely on worst-case scenarios or pessimistic assumptions in preparing biological opinions required by the Endangered Species Act (ESA).  Maine Lobstermen’s Association v. National Marine Fisheries Service (D.C. Cir. June, 16, 2023) (slip opinion). Continue reading “D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales”

“Habitat” Flip Flop – Fish and Wildlife and National Marine Fisheries Services Rescind Trump Administration Definition of “Habitat”

Shortly after the new regulatory definition of “habitat” went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.

The Endangered Species Act (ESA) has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”  Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).  One of the ways it purports to do so is through the designation and protection of “critical habitat.”  The Secretaries of the Interior (FWS) and Commerce (NMFS) designate “critical habitat” for threatened and endangered species.  16 U.S.C. § 1533(a)(3)(A)(i).  Once “critical habitat” is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will “result in the destruction or adverse modification” of the “critical habitat.”  16 U.S.C. § 1536(a)(2).

The term “critical habitat” is defined by the ESA itself, 16 U.S.C. § 1532(5)(A), but the broader term “habitat,” is not.  This may seem insignificant, but the difference between “critical habitat” and “habitat” became—one might say, critical—in the Supreme Court’s 2018 opinion Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018).  There, the Supreme Court held that an area cannot be designated a “critical habitat” unless it is also a “habitat,” which does not have a statutory definition.  Id. at 368-369.  The Supreme Court commented that “the statutory definition of ‘critical habitat’ tells us what makes habitat ‘critical,’ not what makes it ‘habitat.’”  Id. at 368.  The case, however, did not address what is or should qualify as “habitat.”

In response to this decision, FWS and NMFS promulgated the following regulatory definition of “habitat”: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”  50 C.F.R. § 424.02.  The “habitat definition rule” was published on December 16, 2020 became effective on January 15, 2021.

Then came a change in administration and an about-face on the “habitat definition rule.”  On January 20, 2021 President Biden issued an Executive Order that required agencies to review federal regulations and actions taken between January 20, 2017 and January 20, 2021 (i.e., during the Trump administration) to determine their consistency with the Biden administration’s policy considerations.

Following that review, the agencies (FWS and NMFS) decided to rescind their own “habitat definition rule.”  87 FR 37757.  They noted that the regulatory definition was unclear, confusing, and inconsistent with the conservation purposes of the ESA.  Id.  The agencies’ main criticism of their own previous rule is that it prevented the designation of areas that did not currently meet a species’ needs, even if the area could in the future do so due to natural processes or reasonable restoration.  Id. at 37758.  Rather than replace it with a different definition of “habitat,” however, the agencies determined that there should not be a single regulatory definition and that the determination should be made on a case by case basis.  Id. at 37759.

The agencies gave a somewhat dissatisfying acknowledgement to the Weyerhaeuser case that set off this regulatory whiplash:  “[W]e recognize the importance of the Supreme Court’s ruling in Weyerhaeuser and intend to designate as critical habitat only areas that are habitat for the given listed species.”  Id.  In other words, while the agencies now claim that it is impossible for them to define “habitat,” they apparently know it when they see it.

Seem clear as mud?  We would not be surprised if there is future litigation regarding what constitutes “habitat,” now that the Supreme Court has made it clear that falling within the statutory definition of “critical habitat” is not sufficient and there is not currently a case law, statutory, or regulatory definition of “habitat.”

Ecuadorian Animal Rights Decision is Mixed Bag

Animal rights activists have pointed to a recent decision by the highest court in Ecuador — the Constitutional Court (Corte Constitucional Del Ecuador) — as a breakthrough for animal rights.  As the NonHuman Rights Project (NHRP)  described it, the decision “constitutes one of the most important advances in the field of animal rights and environmental law in recent years. . . .  The Court’s groundbreaking ruling advances the constitutional protection of animals — ranging from the level of species to the individual animal — with their own inherent value and needs.”

Upon closer examination, the Court’s Final Judgment is not as far-reaching as has been claimed.  Continue reading “Ecuadorian Animal Rights Decision is Mixed Bag”

D.C. Circuit Affirms Dismissal of Activist Group’s Case Against Fish & Wildlife Service

Affirming a district court decision that we reported on last year, the U.S. Court of Appeals for the District of Columbia Circuit recently found that the Center for Biological Diversity (CBD) had no standing in a case claiming that  the U.S. Fish & Wildlife Service should have utilized notice and comment procedures when it created its framework for making species status assessments under the Endangered Species Act.  Center for Biological Diversity v. Haaland, No. 20-5088 (D.C. Cir. May 25, 2021) (per curiam).  The appellate court agreed with the district court that CBD had shown no Article III “injury in fact.” Continue reading “D.C. Circuit Affirms Dismissal of Activist Group’s Case Against Fish & Wildlife Service”

Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA

Today, in her first published opinion on the Supreme Court, Justice Barrett delivered the majority opinion in U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. Mar. 4, 2021), a Freedom of Information Act (FOIA) case involving whether draft biological opinions of the Fish and Wildlife Service and National Marine Fisheries Service were exempt from public disclosure.  The Court ruled that they were, and overturned a contrary determination by the Ninth Circuit. Continue reading “Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA”

Federal Court Enjoins California Ban on Sale of Alligator and Crocodile Parts

by John M. Simpson.

On Tuesday, a federal district court in California enjoined the enforcement of Cal. Penal Code § 653o which criminalizes the sale and possession for sale of alligator and crocodile parts in California.  April in Paris v. Becerra, No. 2:19-cv-02471-KJM-CKD, consolidated with Louisiana Wildlife Fisheries Comm’n v. Becerra, No. 2:19-cv-02488-KJM-CKD (E.D. Cal. Oct. 13, 2020).  Plaintiffs, business interests importing alligator and crocodile parts into California, brought the action against the California Attorney General and the Director of the state Department of Fish and Wildlife.  The law had been slated to take effect on January 1, 2020, but had been suspended pursuant to a stipulated retraining order pending the court’s decision on the preliminary injunction motion. Continue reading “Federal Court Enjoins California Ban on Sale of Alligator and Crocodile Parts”

Animal Rights Challenge to FWS Sport Trophy Decision Fails in D.C. Circuit

by John M. Simpson.

In Center for Biological Diversity v. Bernhardt, ___ F.3d ___, No. 19-5152 (D.C. Cir. June 16, 2020), the U.S. Court of Appeals for the District of Columbia Circuit recently affirmed a district court’s rejection of a challenge by animal rights groups to a decision by the U.S. Fish & Wildlife Service (FWS) to withdraw blanket findings as to whether the importation under the Endangered Species Act (ESA) of certain sport trophies of “threatened” species taken in other countries would enhance the survival and not be detrimental to the survival of those species. Continue reading “Animal Rights Challenge to FWS Sport Trophy Decision Fails in D.C. Circuit”

D.C. District Court Dismisses Endangered Species Act Case for Lack of Article III Standing

by John M. Simpson.

A U.S. District Court in the District of Columbia recently dismissed a lawsuit brought under the Endangered Species Act (ESA) and the federal Administrative Procedure Act by the Center for Biological Diversity (CBD) against the Secretary of the Interior and the U.S. Fish and Wildlife Service (FWS).  Center for Biological Diversity v. Bernhardt, No. 18-2576 (RC) (D.D.C. Feb. 12, 2020).  CBD asserted that FWS’s guidelines for species-specific species status assessments (SSA’s) were issued without the requisite notice and comment.  The guidelines for species-specific SSA’s provide an analytical framework for the agency’s listing and critical habitat decisions under the ESA.  The court dismissed the case for lack of Article III standing. Continue reading “D.C. District Court Dismisses Endangered Species Act Case for Lack of Article III Standing”

Buttonwood Park Zoo Defeats Endangered Species Act Lawsuit

by Michelle C. Pardo

We previously blogged about an Endangered Species Act (ESA) lawsuit which pitted an animal rights activist against the Buttonwood Park Zoo (owned and operated by the City of New Bedford, Massachusetts). The zoo’s two elephants, Emily and Ruth, approximately 55 and 61 years old, respectively, have spent the greater part of their lives at Buttonwood Park. In 2017, longtime zoo patron Joyce Rowley, an animal rights activist who runs Friends of Ruth & Emily, an organization “dedicated to retiring Asian elephants Ruth and Emily from Buttonwood Park Zoo,” brought a lawsuit in Massachusetts federal court against the zoo. Rowley claimed that the zoo was committing an illegal “take” of the elephants when it failed to provide them with, among other things, adequate veterinary care and socialization, including a failure to protect one of the elephants from its more aggressive elephant companion. Her requested relief included confiscation of the elephants and relocating them to an elephant “sanctuary.” Continue reading “Buttonwood Park Zoo Defeats Endangered Species Act Lawsuit”

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