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Endangered Species Law and Policy

Category Archives: Court Decisions

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Court Rejects ESA Challenge to County’s Local Land Use Planning

Posted in Court Decisions, Fish & Wildlife Service

On April 8, the United States District Court for the Middle District of Florida held that Collier County’s (County) land use planning regulations were complimentary, not contrary to the Endangered Species Act (ESA).  The court also held that the County’s planned future roadway extension did not violate the ESA, because the roadway project was only… Continue Reading

The Wolverine Takes on Climate Change: Montana District Court Remands Withdrawal of Proposed Listing Rule

Posted in Court Decisions, Fish & Wildlife Service, Listing, Litigation

On April 4, 2016, the U.S. District Court for the District of Montana vacated the U.S. Fish and Wildlife Service’s (Service) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the North American wolverine (Withdrawal).  The Withdrawal signaled a complete departure from the Service’s February 2013 proposed rule to list… Continue Reading

Is Their Fate Sealed? Alaska District Court Vacates Regulation Listing Arctic Ringed Seal Populations as Threatened and Endangered

Posted in Court Decisions, Listing, Litigation, National Marine Fisheries Service

On March 15, 2016, in Alaska Oil & Gas Association v. National Marine Fisheries Service, case number 4:14-cv-00029-RRB, the U.S. District Court for the District of Alaska vacated a final regulation promulgated by the National Marine Fisheries Service (“NMFS”) listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida… Continue Reading

Listing Litigation: Courts Rule on Two Permian Basin Species

Posted in Court Decisions, Fish & Wildlife Service, Listing, Litigation

On February 29, 2016, the U.S. District Court for the Western District of Texas rejected the U.S. Fish and Wildlife Service’s (Service) request to reinstate federal Endangered Species Act (ESA) protections for the lesser prairie chicken (Tympanuchus pallidicinctus).  Permian Basin Petrol. Ass ‘n v. Dep ‘t of the Interior, No. 7:14-CV-50 (W.D. Tex. Feb. 29,… Continue Reading

Ninth Circuit Upholds Polar Bear Critical Habitat Designation

Posted in Court Decisions

On February 29, 2016, the U.S. Court of Appeals for the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s (Service) designation of critical habitat in Alaska for the polar bear (Ursus maritimus).  Alaska Oil and Gas Ass’n v. Jewell, No. 13-35919 (9th Cir. Feb. 29, 2016).  The Ninth Circuit reversed the lower court’s decision, reinstating… Continue Reading

Court Holds Inadequate Veterinary Care, Sanitation, and Lack of Environmental Enrichment Constitute a Taking Under the Endangered Species Act.

Posted in Court Decisions

On February 11, 2016, in Kuehl v. Cricket Hollow Zoo, Case No. C14-2034, the United States District Court for the Northern District of Iowa ruled that the owners and operators of the Cricket Hollow Zoo, located in rural Manchester, violated the Endangered Species Act’s (ESA) take prohibition by failing to provide adequate sanitation and timely… Continue Reading

Court Holds Pre-Violation Notice Under the Endangered Species Act Is Akin to No Notice At All

Posted in Court Decisions, Fish & Wildlife Service, Listing

Under the Endangered Species Act (ESA), a citizen plaintiff is required to provide a notice no less than 60-days before filing certain types of lawsuits against the federal government.  For example, a 60-day notice is required before a citizen plaintiff may file a lawsuit seeking to compel the U.S. Fish and Wildlife Service (Service) to issue a decision on an ESA listing petition.  The primary purpose… Continue Reading

Ninth Circuit Upholds Denial of Motion to Enjoin Klamath Mountains Fire Recovery Project

Posted in Consultation, Court Decisions, Fish & Wildlife Service, Litigation

On December 3, 2015, the U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Oregon’s denial of a preliminary injunction sought by environmental plaintiffs to enjoin the Douglas Fire Complex Recovery Project in Oregon’s Klamath Mountains.  Cascadia Wildlands v. Thrailkill, No. 14-35819 (9th Cir. Dec. 3, 2015).  The… Continue Reading

California Supreme Court Rules Mitigation Measures Constitute Take of Fully Protected Species

Posted in Court Decisions, Legal, Litigation

On November 30, 2015, the California Supreme Court issued its much-anticipated decision in Center for Biological Diversity v. California Department of Fish & Wildlife, Case No. S217763 (Nov. 30, 2015).  The decision comes at the conclusion of a nearly five-year legal battle over the California Department of Fish and Wildlife’s (“CDFW”) approval of an environmental… Continue Reading

Court Rejects Some, But Not All Challenges to Critical Habitat Designation of Private Land

Posted in Court Decisions, Critical Habitat, Fish & Wildlife Service

In 2012, the U.S. Fish and Wildlife Service (Service) published a final rule designating 1,724 acres as critical habitat for the endangered Riverside fairy shrimp (Streptocephalus woottoni).  Included in that designation were 56 acres of private land, on which the plaintiff, Otay Mesa Property, L.P. (Otay Mesa), had planned to build a recycling facility and landfill.  Because of… Continue Reading

U.S. District Court Rejects Challenges to Final Rule Terminating Sea Otter Translocation Program.

Posted in Court Decisions

On September 18, 2015, the U.S. District Court for the Central District of California rejected the assertion by the California Sea Urchin Commission, California Abalone Association, and Commercial Fishermen of Santa Barbara (Plaintiffs) that the U.S. Fish and Wildlife Service (Service) lacked authority to issue a final rule terminating the California sea otter (Enhydra lutris… Continue Reading

Challenge to Emergency Drought Salinity Barrier Thrown Out Due to Lack of Proper Notice

Posted in Court Decisions, Fish & Wildlife Service, Legal, Litigation, Sacramento-San Joaquin Delta

On September 14, 2015, the U.S. District Court for the Eastern District of California granted the state and federal defendants’ motion to dismiss for lack of subject matter jurisdiction.  Center for Environmental Science, Accuracy & Reliability (CESAR) v. Cowin, No. 1:15-cv-00884 (pdf). Plaintiff CESAR claimed that the construction and operation of an emergency drought salinity barrier… Continue Reading

Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA “Take” Prohibition

Posted in Court Decisions, Fish & Wildlife Service, Uncategorized

Under the Migratory Bird Treaty Act (MBTA), it is unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird” protected by the Act.  16 U.S.C. 703(a) & 704(a).  In a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA… Continue Reading

California Supreme Court Ponders Fully Protected Species Issues

Posted in Conservation, Court Decisions

On September 2, 2015, the California Supreme Court heard oral argument in a case involving fully protected species that may have important state-wide implications. (Center for Biological Diversity v. Department of Fish and Wildlife (Newhall Land and Farming Company), No. S217763.)  The case involves challenges to the California Department of Fish and Wildlife’s (Department) environmental impact report… Continue Reading

D.C. Court Largely Upholds Loggerhead Sea Turtle Biological Opinion

Posted in Consultation, Court Decisions, National Marine Fisheries Service

On August 31, 2015, the U.S. District Court for the District of Columbia largely upheld the National Marine Fisheries Service’s (Service) Biological Opinion (BiOp) addressing the impacts of seven fisheries on the Northwest Atlantic Distinct Population Segment (DPS) of loggerhead sea turtles (Caretta caretta).  The plaintiff, an ocean conservation organization, challenged the Service’s conclusion in… Continue Reading

A Legal Morass: Overlapping Takings Law With the Endangered Species Act

Posted in Court Decisions, Litigation, Uncategorized

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S…. Continue Reading

Ninth Circuit Holds Critical Habitat Designations Not Subject to Cost-Benefit Analysis

Posted in Court Decisions, Critical Habitat, Legal, Litigation, National Marine Fisheries Service

In Building Industry Association of the Bay Area v. U.S. Department of Commerce, a decision with significant implications for property owners, the building industry, and the development community at large, the U.S. Court of Appeals for the Ninth Circuit rejected various challenges to the National Marine Fisheries Service’s (NMFS) critical habitat designation for the southern… Continue Reading

Ninth Circuit Critical Habitat Decision Casts Shadow On Habitat Conservation Plan “No Surprises” Assurances

Posted in Court Decisions, Critical Habitat

In a decision that casts a shadow on the enforceability of contractual assurances in habitat conservation plan (“HCP”) agreements, the U.S. Court of Appeals for the Ninth Circuit rejected various Endangered Species Act (“ESA”) and National Environmental Policy Act (“NEPA”) challenges to the U.S. Fish and Wildlife Service’s (“Service”) designation of critical habitat for a… Continue Reading

District Court Declines to Provide Injunctive Relief for Emergency Drought Salinity Barrier in the California Bay-Delta

Posted in Court Decisions, Fish & Wildlife Service, Legal, Sacramento-San Joaquin Delta

On June 18, 2015, the U.S. District Court for the Eastern District of California denied a motion for a temporary restraining order and preliminary injunction, finding the plaintiff failed to establish that an emergency salinity barrier would imminently harm species listed under the Endangered Species Act (ESA).  Center for Environmental Science, Accuracy & Reliability (“CESAR”)… Continue Reading

Ninth Circuit Holds Forest Service Violated ESA by Failing to Reinitiate Consultation for Canada Lynx

Posted in Consultation, Court Decisions, Critical Habitat

On June 17, 2015, the U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to reinitiate consultation with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of a revised critical habitat designation on the Canada lynx… Continue Reading

Ninth Circuit Rules Approval of Oil Spill Response Plans is Non-Discretionary

Posted in Court Decisions, Legal, Litigation

On June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit upheld the Bureau of Safety and Environmental Enforcement’s (Bureau) approval of oil spill response plans (OSRPs) relating to oil leases in the Beaufort and Chuckchi seas on Alaska’s Arctic coast.   Alaska Wilderness League v. Jewell, No. 13-35866 (9th Cir. June 11, 2015).  Among… Continue Reading

Ninth Circuit Holds Consultation Unnecessary for Wind Energy Project

Posted in Court Decisions, Fish & Wildlife Service

On May 27, 2015, the U.S. Court of Appeals for the Ninth Circuit provided some additional guidance as to what constitutes agency action for purposes of triggering the consultation requirement under the Endangered Species Act (ESA).  The court held that although the U.S. Bureau of Land Management (BLM) was required to consult with the U.S. Fish and… Continue Reading

DC Circuit Holds Groups Lack Standing to Challenge Two Controversial U.S. Fish and Wildlife Service Settlement Agreements

Posted in Court Decisions, Fish & Wildlife Service, Listing, Litigation

On Tuesday, May 26, 2015, the U.S. Court of Appeals for the District of Columbia Circuit rejected (pdf) the National Association of Home Builders’ and three other associations’ (collectively, NAHB) challenge to separate settlements between the U.S. Fish and Wildlife Service (Service) and two environmental organizations. The settlements direct the Service to make listing decisions on… Continue Reading