Endangered Species Act Practice
Issue Alerts
Closely Divided U.S. Supreme Court Rejects Effort to Expand the Scope of the Endangered Species Act
Joe Nelson, Matt Love, Tyson KadeJune 27, 2007
On June 25, the U.S. Supreme Court issued a landmark decision that rejected an effort to expand the scope of the Endangered Species Act. The Supreme Court concluded that § 7(a)(2) of the ESA (§ 7(a)(2)) does not add additional requirements to statutory mandates or alter constraints placed on a federal agency’s discretion by other Acts of Congress. In doing so, the Court reversed a decision by the Ninth Circuit Court of Appeals and affirmed a long-standing U.S. Fish and Wildlife Service and National Marine Fisheries Service joint regulatory interpretation that the requirements of § 7(a)(2) are only triggered by discretionary federal agency action.
Ninth Circuit Clarifies the Requirements for Incidental Take Statements Prepared During Endangered Species Act Section 7 Consultations
Sam Kalen, Matt LoveFebruary 22, 2007
The Ninth Circuit Court of Appeals issued an important Endangered Species Act decision, which clarified: (1) the legal relationship between an incidental take statement and a biological opinion; and (2) the factors that must exist for an ITS to include a surrogate measure for authorized incidental take instead of a specific numerical limit.