Legislative and Regulatory Update
September 2019 by Scott Harn
• ESA changes for the better
On August 12, 2019, the Trump administration finalized three rules governing the Endangered Species Act (ESA). (They are rather lengthy documents and links are provided at the end of this article.)
These rules are major improvements and will:
- Advise the public of the economic impact of a listing decision.
- Limit circumstances where unoccupied habitat can be designated as critical habitat.
- Remove the “blanket rule” that applied all prohibitions regarding endangered species to threatened species.
- Shift the burden to the Fish & Wildlife Service to define prohibitions for threatened species on a case-by-case basis subject to the rulemaking process.
- Provide a new definition for threatened species that will limit the scope of threats weighed in the listing decision to those which are probable in the foreseeable future.
- Streamline the de-listing process to removed recovered species from the list.
Clark Pearson (Public Lands for the People) and I had two in-person meetings with officials in the current administration in DC regarding these issues, and we are happy to see these specific items being addressed.
Further justification for the rulemaking comes from a unanimous decision by the US Supreme Court in Weyerhaeuser v. US Fish & Wildlife. In this 2018 case, the court ruled that the ESA must consider economic and other impacts before making a critical habitat designation.
In Weyerhaeuser, the Fish & Wildlife Service designated a parcel of land in Louisiana critical habitat for the endangered dusky gopher frog. The frog currently lives hundreds of miles away in Mississippi and had not been seen in Louisiana for decades. Additionally, the land in question was deemed unsuitable for the frog, but the Service claimed that habitat can include areas that would require “some degree of modification.” The US Supreme Court disagreed.
Fish & Wildlife: Endangered and Threatened Species Interagency Cooperation: https://www.federalregister.gov/documents/2019/08/27/2019-17517/endangered-and-threatened-wildlife-and-plants-regulations-for-interagency-cooperation
Fish & Wildlife: Listing Species and Designation Critical Habitat: https://www.federalregister.gov/documents/2019/08/27/2019-17518/endangered-and-threatened-wildlife-and-plants-regulations-for-listing-species-and-designating
Fish & Wildlife: Prohibitions to Threatened Wildlife and Plants: https://www.federalregister.gov/documents/2019/08/27/2019-17518/endangered-and-threatened-wildlife-and-plants-regulations-for-listing-species-and-designating
The settlement did not grant an immediate approval for the project, but it did begin to clear the way for the company to apply for federal permits—a path the Obama administration previously had thwarted.
- Budd-Falen in line to become next director at BLM
- Ten national monuments slated for changes or reductions
- California adds another fee
I hope this case inspires some of you. It shows that miners can and do succeed when they are persistent and well-prepared, even when representing themselves against state and federal attorneys in a court of law.
• Forest Service proposes next step in Agenda 21
• 9th Circuit deals blow to small miners
• The good, the bad, and the ugly
• California and Oregon dredge permits
This article may not be as interesting as someone describing a big nugget find in Australia...but right now the biggest obstacle to mining is our government.
• Reopening closed areas
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