The Courts continue to affect how practitioners work through consultations.
If you’ve been following the saga of the 2019 revisions to the consultation regs at 50 CFR 402 you will remember that in my July 6 blog entry, I commented on a (then) recent court ruling regarding the 2019 regulation revisions. At that time a court had vacated the revisions and practitioners were back to using the pre 2019 regulations.
Well, there has been more activity in that case. Though I’m not an attorney and may get some of the details fuzzy it appears that in July the defendant intervenors in the case (Center for Biological Diversity et al, v. Deb Haaland, U.S. Secretary of Interior et al.), made a request to the 9th Circuit Court of Appeals to issue a stay on the lower court’s vacatur of the 2019 revised regs.
On September 21, 2022, the 9th Circuit issued a stay (text of Ruling) on that vacatur until the lower court addresses an error it made. The best I can tell, this means we are back to using the post 2019 revised regs until further action by the courts. I have posted a copy of the post 2019 Regs on my Resources page. I was on the team that revised the regs in 2019 and from a practical perspective, those revisions did not really change anything substantive about consultation but was more about updating the regs and clarifying some issues and definitions that had emerged since 1986. So, this whipsawing back and forth shouldn’t be of much concern in the big scheme of things.
The best advice I can give practitioners is to coordinate closely with the Fish and Wildlife Service and National Marine Fisheries Service and your organization’s legal representatives to stay abreast of the developments and any potential adjustments to practitioners’ work.