Feel like you’re riding a see saw? As mentioned in my September 27, 2022 blog, the Ninth Circuit granted a request to stay the U.S. District Court of Northern California's July 5, 2022 order. (That July order had vacated the 2019 revisions to the consultation regulations.) So the Ninth Circuit’s stay meant we were back to using the regulations as revised in 2019. The stay also put the ball back in the Northern California’s court for the next move. Well, that move came on November 16, 2022, when the California court issued another order regarding the case. It remanded the 2019 revisions back to the Fish and Wildlife Service and National Marine Fisheries Service BUT kept the 2019 revisions in place. What’s Next? If my experience in helping write the 2019 revisions is any indicator it will go something like this. The Fish and Wildlife Service and National Marine Fisheries Service team will draft new revisions, they will be vetted internally through leadership at the Departments of Interior and Commerce, then they will go to the Office of Management and Budget (OMB) for review. After any edits are ironed out, a proposed rule will be published in the Federal Register for 30 or 60 days of public comment. If I had to guess (and it is just a guess) I imagine we won’t see the proposed rule published for comments before May 2023. And that will be just the proposed rule. Following the proposed rule will be more edits, responses to comments and then a similar internal review process before a final rule is published. Bottom line, I’d guess we’ll be using the 2019 regulation revisions for quite-a-while before a future final rule potentially requires adjustments. In case you work for the Fish and Wildlife Service, I heard that the headquarters office sent out guidance in the summer of 2022 describing how to deal with the current situation in consultation documents. I don’t know if the National Marine Fisheries Service has similar guidance, but it wouldn’t surprise me.

On a related note, if you’ve been following this blog, you are well aware of how section 7 consultation practice is informed by court cases. There are hundreds of court cases that have examined different facets of consultation. Some of the more instructive cases are noted in the the 1998 handbook and by materials and instructors in section 7 courses. Because several of my students have wondered about those cases, I’ve put together a table listing 22 of the commonly referenced ones. This is obviously not an exhaustive list and I have not put copies of each case on the website because most of them can be found through a simple web search. I’m not an attorney so I have avoided trying to articulate the exact legal findings, but have noted the specific areas of consultation that were either at issue in the case or were discussed as a part of the Courts’ deliberations. Also, since I’m not trained in the specific naming conventions when referencing cases, I apologize in advance to attorneys that notice my deficiencies in that area. Feel free to suggest corrections or additions to the list.