April 7, 2018

Weekly litigation report — April 7, 2018

By James S. Burling Vice President for Litigation

Department of Interior proposes repeal of illegal and counterproductive Endangered Species Act regulation

Landowners and some conservationists have long complained about a decision made decades ago by the Fish & Wildlife Service to regulate “threatened” species the exact same as “endangered” species. This has diverted critical resources from the most endangered species and applied draconian regulations to less imperiled species.

This week, we learned that the Department of Interior is proposing to repeal the so-called blanket 4(d) rule. That rule extends the Endangered Species Act’s prohibition on “taking” to all threatened species, despite Congress’ decision to explicitly reserve that burdensome prohibition for endangered species. In 2016, PLF filed petitions on behalf of the National Federation of Independent Businesses and the Washington Cattlemen’s Association calling for this reform. Before it can be finalized, the reform will have to be formally proposed and published, Interior will take public comment, and then a final rule can be announced. If Interior follows through with the proposed reform, it will be a big win for the rule of law and species conservation. Agencies have no authority to overrule Congress’ policy judgments, as this rule purports to do. And, more importantly, Congress’ decision to regulate endangered and threatened species differently is the best means of aligning property owners’ incentives with the interests of species, a key factor in recovering species.

Judge dismisses just one count without prejudice in Starry Night mural case

In Nemhauser v. City of Mount Dora, on Thursday the judge ruled on the City of Mount Dora’s motion to dismiss in our First Amendment challenge to the City’s sign code. The judge rejected most of the City’s arguments, but granted in part as to one portion of our complaint. However, that part was dismissed without prejudice, meaning we will have fourteen days to either amend our complaint or proceed on the other three counts.

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