United States: Court Sends Endangered Species Act Regulations Back To The Agencies

Gunnar Larson g at xny.io
Thu Nov 24 13:02:25 PST 2022


22 November 2022
by Rebecca Hays Barho
Nossaman LLP
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On November 16, 2022, the U.S. District Court for the Northern District of
California (District Court) remanded three sets of Endangered Species Act
(ESA) regulations promulgated in 2019 under the Trump Administration back
to the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries
Service (NMFS) (collectively, Services) for reconsideration. The three
regulations addressed: how species are listed and delisted and critical
habitat designated under ESA section 4; interagency consultation under ESA
section 7; and a final rule repealing USFWS's blanket ESA section 4(d) rule
which, prior to its repeal, extended the take prohibitions of ESA section 9
to most species listed as threatened under the statute (collectively, the
2019 Rules).

In July 2022, the District Court remanded and vacated the 2019 Rules
without making a determination on the merits as to whether the rules were,
in fact, unlawful. The Services had requested the District Court remand the
2019 Rules to the agencies without vacatur. The U.S. Court of Appeals for
the Ninth Circuit (Ninth Circuit) later stayed the vacatur, requiring the
District Court to reconsider.

In a separate filing with the District Court subsequent to the decision of
the Ninth Circuit and in support of the agencies' original request for
remand without vacatur, the Services informed the court that potential
revisions to the 2019 Rules could be completed by the agencies on or before
May 2023, with any final revisions to be completed by May 2024.

The 2019 Rules will remain in effect pending the Services' reconsideration
of the same.

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