Alabama et al. v. National Marine Fisheries Service et al., No. 1:16-cv-00593 (S.D. Ala. Nov. 29, 2016)
On November 29, 2016, eighteen states* filed suit in the Southern District of Alabama challenging two new rules finalized by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (NMFS) in February 2016. Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat, 81 FR 7414 (Feb. 11, 2016), and Interagency Cooperation – Endangered Species Act of 1973, as Amended: Definition of Destruction or Adverse Modification of Critical Habitat, 81 FR 7214 (Feb. 11, 2016). The new rules update critical habitat regulations under Section 7 the ESA and respond to Executive Order 13563, which directs agencies to review their existing regulations to modify and /or streamline them. The suit concerns the Services’ revision of the definitions of “critical habitat” and “adverse modification” in their regulations implementing the ESA. Section 7 requires federal agencies to consult with the Services to ensure that any federal action, including the issuance of permits, is not likely to “result in the destruction or adverse modification” of any species’ habitat.
In their challenge, the Plaintiff States argued the revised definitions are inconsistent with the ESA, as the new rules expand the Services’ authority to designate areas not currently occupied by threatened or endangered species as critical habitat. Previously, the Agencies could only consider unoccupied habitat if they decided that the species would not recover without it. The States also asserted the Services must explain how unoccupied areas can be “essential” to the conservation of a species. Finally, the Plaintiffs challenged the Services’ new ability to designate critical habitat based on biological factors not yet present in an area.
On September 12, 2017, the court granted Defendants’ Third Motion to Continue Stay of the Proceedings, which stayed the case until November 10, 2017. Defendants’ response to the amended complaint is due December 1, 2017 and responses to the motion to intervene filed by Coastal Conservation League, Black Warrior Riverkeeper, Inc., and Defenders of Wildlife is due on December 1, 2017.
*The Plaintiff states include Alabama, Arkansas, Alaska, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Carolina, Texas, West Virginia, Wisconsin, and Wyoming.
Significance of case:
This case could significantly impact the scope of critical habitat designations and how climate change is considered in making such designations.
- Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat, 81 FR 7414 (Feb. 11, 2016).
- Interagency Cooperation – Endangered Species Act of 1973, as Amended: Definition of Destruction or Adverse Modification of Critical Habitat, 81 FR 7214 (Feb. 11, 2016).