Special Institute on

Endangered Species and Other Wildlife

  • Denver, Colorado
  • October 29-30, 2019
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Tuesday Morning



    Executive Director Rocky Mountain Mineral Law Foundation, Westminster, CO
  2. Rebecca W. Watson

    President, Rocky Mountain Mineral Law Foundation Welborn Sullivan Meck & Tooley, P.C., Denver, CO
  3. Sandra A. Snodgrass

    Holland & Hart LLP, Denver, CO
  4. Sandra B. Zellmer

    Professor of Law; Director of Natural Resources Clinics University of Montana School of Law, Missoula, MT

Introductions and Opening Remarks


    James H. House and Hiram H. Hurd Professor of Environmental Regulation University of California, Berkeley, School of Law, Berkeley, CA

Setting the Stage: The Historical and Current Context of the Endangered Species Act

  • How did the Endangered Species Act come to be?
  • What is the scope of authority under the statute?
  • How does it interact with state and tribal wildlife management authority?
  • What are the major provisions of the ESA and how do they interact?
  • What is the current public perception of the ESA, and how is that influenced by the media?

  1. JAKE LI

    Attorney Environmental Policy Innovation Center, Washington, D.C.

Endangered Species Act Section 4 Listing Issues

  • How are species listed and delisted?
  • What is a “special” 4(d) rule?
  • What is the role of economic impacts in the listing process?
  • What is the role of distinct population segments and some examples?
  • What are the proposed revisions to the listing regulations?

Hosted Refreshment Break


    Regional Executive Director National Wildlife Federation, Missoula, MT

Grizzly Bear Case Study

  • What is the history of the grizzly bear delisting?
  • Why was the grizzly bear delisting rejected by a court?


    Attorney-Advisor Department of the Interior, Washington, D.C.

ESA Section 4 Critical Habitat Issues

  • How is critical habitat designated?
  • How might designation decisionmaking vary on federal, tribal, state, and private lands?
  • What does the dusky gopher frog litigation mean?
  • How could a critical habitat designation affect my project?
  • What are the proposed revisions to the critical habitat regulations?

Lunch – On Your Own

Tuesday Afternoon


    General Counsel American Forest Resource Council, Portland, OR

ESA Section 9 Take Prohibition

  • How is take defined?
  • What level of habitat modification constitutes foreseeable harm?
  • What constitutes harassment?
  • What do I need to do to show that my project won’t cause take?
  • How is the take prohibition enforced?


    Deputy Section Chief U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC

ESA Section 7 Consultation

  • What triggers Section 7 consultation, and what is the difference between formal and informal consultation?
  • What does jeopardize mean and how does it relate to recovery?
  • What is the scope of the consultation when only a portion has a federal nexus? How is ESA compliance handled for the remainder of the project?
  • When can the Services use a habitat surrogate instead of a numeric take limit?
  • What are the proposed revisions to the Section 7 consultation regulations?

Hosted Refreshment Break


    Principal Beveridge & Diamond, PC, Washington, D.C.

ESA Section 10 Incidental Take Permits and Habitat Conservation Plans

  • When should I apply for an incidental take permit?
  • What are the required elements of a habitat conservation plan?
  • What species should I cover? If I cover one, can the rest be addressed through the intra­ Service Section 7 consultation?
  • What does “minimize and mitigate to the maximum extent practicable” really mean?
  • What does the “no surprises” rule do for me?


    Assistant Regional Solicitor U.S. Department of the Interior, Albuquerque, NM

    Senior Partner Beatty & Wozniak, P.C., Denver, CO

ESA Section 10 Case Studies - Dunes Sagebrush Lizard and Lesser Prairie-Chicken: Two Efforts at Conserving Species on Private Lands Before Listing

  • What opportunities exist for large-scale Section 10 conservation programs for species found predominantly on private lands?
  • What were the challenges in developing, implementing and administering the permits and plans for the DSL and LPC?
  • What program mechanisms can further incentivize private landowner participation to increase conservation activities to benefit the species?
  • What are the contractual and legal issues that must be accounted for in these programs when private minerals are involved?
  • Based on experiences implementing the Texas Conservation Plan and the WAFWA Range-Wide Plan, how can future programmatic permits and range-wide conservation plans be improved?

Hosted Reception for Registrants, Speakers, and Guests

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Wednesday Morning

  1. Sandra A. Snodgrass

    Holland & Hart LLP, Denver, CO
  2. Sandra B. Zellmer

    Professor of Law; Director of Natural Resources Clinics University of Montana School of Law, Missoula, MT

Day One Summary and Introduction to Day 2


    Attorney Montana Fish, Wildlife & Parks, Helena, MT

State Wildlife Agencies’ Role in Species Protection

  • How do state wildlife agencies coordinate with USFWS and NOAA Fisheries under wildlife-protection statutes?
  • What is their role in listing and delisting efforts?
  • How are state agencies conserving wildlife?
  • How are state wildlife agencies participating in Section 7 consultation?
  • What revisions have been proposed for ESA Section 6?

  1. Sarah Stauffer Curtiss

    Partner Stoel Rives LLP, Portland, OR

    Associate Stoel Rives LLP, Portland, OR

Bald and Golden Eagle Protection Act Prohibitions and Permits

  • What does BGEPA prohibit?
  • What are the requirements for an incidental take permit? Can I get a take permit if my project is not a wind farm?
  • What is required to take an eagle nest?
  • Is power-pole retrofitting the only mitigation option the Service will accept?
  • What is the potential criminal and civil liability under BGEPA? Is there any citizen enforcement?

Hosted Refreshment Break


    Counsel WilmerHale, Washington, D.C.
  2. Sarah Judkins

    Associate Kaplan, Kirsch & Rockwell, Denver, CO

Migratory Bird Treaty Act: Where Are We Now?

  • What is prohibited under the MBTA?
  • What are the MBTA’s enforcement provisions?
  • What is the impact of Solicitor’s Opinion M-37050?
  • Does liability depend on which federal circuit you are in?
  • What are bird and bat conservation strategies, migratory bird conservation plans, and avian protection plans? Do I need to prepare one?

Lunch – On Your Own

Wednesday Afternoon


    Deputy Solicitor U.S. Department of the Interior, Washington, D.C.

    Professor W.A. Franke College of Forestry and Conservation, University of Montana, Missoula, MT

Bureau of Land Management and Forest Service Wildlife Protection Responsibilities

  • What are the legal authorities and obligations for BLM and Forest Service land use plans with respect to wildlife protection?
  • What is a biological evaluation and how does it fit in with a biological assessment and biological opinion?
  • What is the relationship between National Forest plans and ESA recovery?
  • What are species of conservation concern and focal species?

  1. Sandra A. Snodgrass

    Holland & Hart LLP, Denver, CO

Mitigation Policy and Practice

  • What are the recent changes to mitigation policies of the Interior Department, the Fish and Wildlife Service, and the Bureau of Land Management?
  • How do those changes affect my mitigation obligations under the ESA, BGEPA, and BLM land use authorizations?
  • What other provisions compel or encourage mitigation, and what role do they play?

Coffee Break


    Partner Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, Albuquerque, NM

    Attorney Confederated Salish and Kootenai Tribes of the Flathead Nation, Columbia Falls, MT

The Controversial World of Recovering and Conserving Native Fish

  • How are tribes exercising their treaty rights and co-managing native fish?
  • What are some of the federal statutes under which fish species may be protected? What is the role of treaties?
  • How do we balance a variety of natural factors in fish recovery (e.g., climate change, predation)?


    Professor of Law University of Buffalo School of Law, Buffalo, NY

Ethics Potpourri

  • When can my attorneys be involved in a meeting with agency officials without someone from the Solicitors’ Office?
  • How do I maintain attorney-client privilege when working with environmental consultants?
  • What level of communication can I have with the agency’s third-party contractors during the NEPA process for an ESA or BGEPA permit?
  • Is there any conflict of interest in representing two companies seeking an ESA or BGEPA permit from the same agency office when the companies are competing for the limited agency time available?

Course Adjournment