On April 2, 2018, the U.S. Fish and Wildlife Service
("USFWS") submitted three proposed rules to the Office of
Management and Budget ("OMB"), which is charged with
reviewing every final and proposed federal agency rule before its
publication in the Federal Register. These proposals, if
implemented, will significantly change USFWS' implementation of
the Endangered Species Act ("ESA").
Based on unofficial reports, it appears the first proposal would
revoke the 1978 Blanket Section 4(d) Rule. 50 C.F.R. § 17.31. The text of the
ESA only prohibits killing, capturing, or otherwise taking species
listed as endangered. 16 U.S.C. § 1538(a)(1). In 1975, the USFWS
issued a Blanket 4(d) Rule extending these protections to
threatened species, and a judicial challenge to the Blanket 4(d)
Rule was dismissed in a controversial D.C. Circuit opinion in
1993. Sweet Home Chapter of Cmtys. for a Great Or. v.
Babbitt, 1 F.3d 1 (D.C. Cir. 1993). If the Blanket 4(d) Rule
is revoked,
