On December 8, 2011, the Obama Administration proposed to clarify which species or populations of species are eligible for protection under the Endangered Species Act (ESA). The proposed policy will define a key phrase in Section 4 of the ESA. That section defines an endangered species as a species in danger of extinction “throughout all or a significant portion of its range.”  The policy is intended to explain what is meant by a “significant portion of [a species’] range” and will affect decisions whether to add or remove species from the federal list of threatened and endangered wildlife and plants. Uncertainty about the meaning of this important phrase has led to intense litigation.    

Under the draft policy, when making listing decisions the Services would: (1) define a portion of a species’ range as “significant” if without that portion, the species would be in danger of extinction; (2) limit the relevant “range” in question to the range currently used by a species during any of its life stages (as opposed to the species’ historical range); and (3) apply that listing decision to the entire species, throughout its entire range. On the one hand, this means fewer species are likely to be listed. By defining significance with reference to an entire species and focusing on a species’ current range, specific threats to a species in the portion in question as well as purely historic losses lose relevance. On the other hand, once it is determined that a species is in danger of extinction throughout a significant portion of its range, the entire species would be listed, and the ESA’s restrictions would apply throughout that entire area. In short, a species could be listed even in areas where it presently thrives.



The draft policy is a precursor to a formal rulemaking and is available as Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’  76 Fed. Reg. 76,987 (Dec. 9, 2011).  Comments on the proposal will be accepted for the next 60 days.

On November 15, 2011 Nebraska's Office of the Attorney General issued a finding that on May 26, 2011, the Ogallala Public Schools Board of Education committed a violation of the Nebraska Open Meetings Act. The Board met and adjourned. Following the meeting, the majority of the Board members were still present and participated in a discussion of items which were not on the Board meeting agenda. The violation came from the "meeting after meeting", of which no advanced notice was given and no agenda or minutes prepared. The violation was technical in nature; there was a quorum of members present and discussion of public business occurred. The violation was de minimis and the Attorney General's Office gave a strict warning to the Board to "proceed with greater caution in the future."

A public body, as defined in Neb. Rev. Stat. § 84-1409, includes governing bodies of all political subdivisions of the State of Nebraska. The Open Meetings Act requires that all public bodies give reasonable advance publicized notice of all public meetings and the preparation of an agenda that is sufficiently descriptive to give the public reasonable notice of the matters to be considered at the meeting.  The Act also requires reasonable arrangements be made to accommodate the public's right to attend, hear, and speak at the meeting.

Earlier this month, the White House officially announced it would re-evaluate the proposed route of the Keystone XL pipeline. The Department of State ("Department") is required to review Presidential Permit applications for trans-border pipelines and determine whether such a project is in the “national interest.”  Since 2008, the Department has been reviewing TransCanada’s application for the proposed Keystone XL Pipeline project.  Concerns about the proposed route’s impact on the Nebraska Sandhills resulted in the Nebraska legislature convening a special session to consider the issue.  Based on those and related concerns, the Department determined it was necessary to examine alternative routes that would avoid the Sandhills.  The Department estimates issuance of a supplemental environmental impact statement (“SEIS”), pursuant to the National Environmental Policy Act, in the first quarter of 2013.

While state law primarily governs routes for interstate petroleum pipelines, until today, Nebraska lacked such laws.  On November 22, 2011, Nebraska lawmakers passed the Major Oil Pipeline Siting Act (LB1), which will give authority for siting future oil pipelines to the Nebraska Public Service Commission, and LB4, designed to implement a compromise with TransCanada to re-route the Keystone XL pipeline away from the Sandhills.  Both bills passed unanimously, and Governor Heineman immediately signed them into law.  LB4 will allow the state to contribute up to $2 million for the SEIS to the extent it examines the new portion of the Keystone XL pipeline in Nebraska.  The State of Nebraska, through the Department of Environmental Quality, will work with federal officials to complete that analysis.  The legislation also vests the Governor with authority to approve the new pipeline route.

In early 2007, the Nebraska Public Power District (“NPPD”) placed a call for water administration on the Niobrara River for appropriations, it claims, for a small hydro-dam with the Nebraska Department of Natural Resources (“NDNR”).  Although NPPD claims to hold appropriations for virtually the entire flow of the Niobrara River since 1942, it never before placed a call for administration.  NDNR honored NPPD’s call and abruptly issued closing notices to over 400 appropriations at the beginning of irrigation season.   The unexpected closing notices spawned a series of law suits by irrigators challenging NDNR’s new administration.  Among those suits was Gerard Keating et al. v. NPPD et al., brought in the United States Federal District Court in Omaha.   Keatingalleged that the closing notices constituted a taking of a property right (the water right) without due process of law under 42 U.S.C. § 1983.  The District Court explained that under Nebraska’s prior appropriation doctrine, the issuance of closing notices is based solely on the date an appropriation is obtained.  The District Court noted that because NPPD’s appropriations were older than those of the irrigators, the closing notices were issued in accordance with state law and dismissed the claims.  The Plaintiffs, represented by a Minnesota law firm, appealed the dismissal to the 8^th Circuit Court of Appeals.  On November 7, 2011, the 8th Circuit issued its opinion affirming the dismissal by the District Court, essentially agreeing with the District Court's analysis.

Keating stands in contrast to In re 2007 Administration of Waters of Niobrara River, which was argued to the Nebraska Supreme Court by BW lawyer, Tom Wilmoth on November 4, 2011.  In that case, the irrigator Plaintiffs argued that NPPD’s appropriations were not valid due to 65 years of non-use.  The Plaintiffs also argued that even if NPPD’s appropriations are valid, NDNR erred in issuing the closing notices because it (NDNR) failed to consider key factors in water administration.   Whether NPPD’s appropriations were valid and whether NDNR acted properly was not an issue before the 8^th Circuit in Keating.  No decision is expected from the Nebraska Supreme Court until the spring of 2012.