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Category Archives: Litigation

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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

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

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

ESA Roundup – Legislation, Listings, and Litigation

Posted in Congress, Fish & Wildlife Service, Legislation, Listing, Litigation

Whether dealing with water or with endangered species directly, there have been a number of recent developments that are worth keeping on your radar.  Below is a quick summary of some of the more significant items: July 16, 2015 – The House of Representative, in a largely partisan vote, passed H.R. 2898, the Western Water and American Food Security… 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 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

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

D.C. Court Upholds Forest Service’s 2012 Planning Rule

Posted in Court Decisions, Litigation

In a decision issued April 28, 2015, a U.S. District Court for the District of Columbia dismissed an action challenging the U.S. Forest Service’s (Service) 2012 National Forest Planning Rule (Planning Rule).  The Service is responsible for managing all federally owned forest and range lands, as well as the species that reside on those lands, pursuant to a three-tiered… Continue Reading

Federal Court Strikes Down Habitat Conservation Plan and Biological Opinion for Logging Project in Northern California

Posted in Court Decisions, Fish & Wildlife Service, Litigation, National Marine Fisheries Service

On April 3, 2015, a federal district court in California put the brakes on a proposed logging project, invalidating a habitat conservation plan and incidental take permit issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 10 of the Endangered Species Act (ESA), as well as a… Continue Reading

Northern Long-Eared Bat Listed as Threatened

Posted in Congress, Conservation, Fish & Wildlife Service, Listing, Litigation

On April 2, 2015, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the northern long-eared bat (Myotis septentrionalis) as threatened under the Endangered Species Act (ESA).  The Service determined that there are several factors affecting the species, but none as severe and immediate to its persistence as the disease known… Continue Reading

Endangered Species Act Roundup – Three For the Price of One

Posted in Fish & Wildlife Service, Listing, Litigation

Although there were some notable downperiods when it came to Endangered Species Act news over the past twelve months, the past few weeks have been anything but slow.  Below are a few of the more recent newsworthy items that have rolled off the presses: December 11, 2014 – U.S. Fish and Wildlife Service issues a final rule listing… Continue Reading

Court Holds Congress Lacks Power to Regulate Take of Intrastate Species that Has No Substantial Effect on Commerce

Posted in Court Decisions, Fish & Wildlife Service, Litigation

On November 4th, the U.S. District Court for the District of Utah invalidated the special rule issued by the U.S. Fish and Wildlife Service (Service) regulating take of the threatened Utah prairie dog, a species that only inhabits the state of Utah.  See People for the Ethical Treatment of Property Owners v. U.S. Fish and… Continue Reading

Court Affirms FEMA’s Efforts to Implement Actions to Avoid Jeopardizing Listed Species

Posted in Court Decisions, Litigation, National Marine Fisheries Service

On October 23rd the Federal District Court for the Western District of Washington upheld the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program’s (NFIP) compliance with a 2008 reasonable and prudent alternative (RPA) stemming from previous litigation.  The National Wildlife Federation initially challenged the program for its impacts on endangered Pacific Northwest Chinook salmon,… Continue Reading

Two Petitions Filed Seeking Supreme Court Review of Ninth Circuit Decision in Delta Smelt Case

Posted in Litigation

Recently, two separate petitions were filed with the U.S. Supreme Court seeking review of the Ninth Circuit’s decision in San Luis and Delta Mendota Water Authority v. Jewell, a case involving a challenge to the biological opinion and reasonable and prudent alternative issued by the U.S. Fish and Wildlife Service regarding continuing operations of the… Continue Reading

Forest Service Agrees to Initiate Consultation regarding Fuels Reduction Project at Upper Echo Lake south of Lake Tahoe and Halt Activity Pending Consultation

Posted in Consultation, Litigation

The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and… Continue Reading

Conservation Groups Continue to File ESA Lawsuits

Posted in Litigation

Despite landmark settlements requiring the U.S. Fish and Wildlife Service (Service) to review the status of hundreds of species currently listed as candidate species under the Endangered Species Act (ESA), conservation groups continue to file lawsuits to force listing decisions. For example, the Center for Biological Diversity (CBD) recently filed suit in an effort to… Continue Reading

Amici Curiae Support En Banc Review of Ninth Circuit Delta Smelt Decision

Posted in Litigation

On May 12, 2014, Appellees Kern County Water Agency, Coalition for a Sustainable Delta, State Water Contractors, and Metropolitan Water District of Southern California filed a petition for rehearing en banc, seeking further review of the recent Ninth Circuit decision relating to the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (FWS)… Continue Reading

U.S. Fish and Wildlife Service Ordered to Complete Recovery Plan for Canada Lynx

Posted in Court Decisions, Fish & Wildlife Service, Litigation

Recently, the United States District Court for the District of Montana ordered (pdf) the U.S. Fish and Wildlife Service (Service) to develop a timeline for completion of recovery planning for the Canada lynx (Lynx canadensis). The court determined that the Service’s purported justifications for not developing and implementing a recovery plan for the species were insufficient… Continue Reading

District Court Finds Columbia River Hatchery Violates Endangered Species Act

Posted in Litigation

In Native Fish Society v. National Marine Fisheries Service, No. 3:12-cv-00431, environmental groups challenged the operation of the Sandy Hatchery along the Columbia River in Portland, Oregon. Among other things, plaintiffs argued that operation of the hatchery violates the Endangered Species Act (ESA) by causing take of listed fish species, including the Lower Columbia River… Continue Reading

Court of Appeals Holds Claims Against the U.S. Fish and Wildlife Service for Failure to Comply with the Endangered Species Act are Moot

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

On August 20, 2013, the U.S. Court of Appeals for the District of Columbia held (pdf) that appellants’ claims against the U.S. Fish and Wildlife Service (Service) for an alleged failure to take certain actions under the Endangered Species Act (ESA) with respect to the straight-horned markhor (Capra falconeri jerdoni) were moot.  In 1976, the… Continue Reading

Mexican Gray Wolves Benefit From Two Recent Settlement Agreements

Posted in Litigation

In a recently issued press release, the Center for Biological Diversity (CBD) announced that it and the U.S. Fish and Wildlife Service had entered into two settlement agreements that would increase protection for the Mexican gray wolf (Canis lupus baileyi) in Arizona and New Mexico.  The press release states that under the two agreements the Fish and Wildlife Service will… Continue Reading