Ashley J. Remillard

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Ashley Remillard advises clients on the National Environmental Policy Act and the Endangered Species Act with respect to significant contributors to ecosystem decline in the Sacramento-San Joaquin Delta. Ms. Remillard also works on issues pertaining to the development of habitat conservation plans under the ESA, including the development of the Bay Delta Conservation Plan and the related NEPA analysis.Ms. Remillard's environmental experience is complemented by her experience in public agency and public contract law, construction and procurement law, and innovative project delivery methods. Prior to joining Nossaman's Environment & Land Use Practice Group, she was a member of the firm's Infrastructure Practice Group. As a member of that group, she has been the primary associate on large-scale public procurements requiring client contact, day-to-day project management, and coordination of document production. Her responsibilities included drafting procurement and contract documents for design-build and public-private partnership projects. She was also a member of the team working for the Los Angeles County Metropolitan Transportation Authority on possible use of public-private partnerships for development of transit projects.


District Court Denies Motion to Enjoin Delta Water Transfers

Last Friday, the U.S. District Court for the Eastern District of California denied (pdf) a motion brought by environmental groups to enjoin a water transfer project in the Sacramento-San Joaquin River Delta (Delta). Plaintiffs brought suit against the U.S. Bureau of Reclamation (Bureau), arguing the Bureau violated the National Environmental Policy Act (NEPA) by approving the San Luis & Delta-Mendota Water Authority (SLDMWA) Water Transfer Project, which would allow water rights holders or contractors north of the Delta to sell water to members of SLDMWA, whose members then would make use of the water in areas that lie south of the Delta. The Bureau’s role would be to review any proposed transfers and facilitate those transfers though the Delta. The Bureau prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI) pursuant to NEPA in April 2014, concluding that the transfer project was covered by the 2008 delta smelt biological opinion issued under the Endangered Species Act and that the timing of the transfers (July-September) was such that delta smelt would not be present in the Delta, and therefore would not be adversely impacted.

Plaintiffs sought to enjoin the transfers, arguing that the Bureau’s conclusion that delta smelt would not be present in the Delta was arbitrary and capricious and that the Bureau failed to consider recent information regarding Delta outflow and relaxed water quality standards. The court denied plaintiffs’ motion for a preliminary injunction, concluding plaintiffs were not likely to succeed on the merits of their NEPA claims because, according to the court, their dispute "boils down to a disagreement with an expert agency as to the likelihood that the 2014 Transfer Project will draw smelt into areas of the Delta where they will be subject to dangerously high temperatures.” The court determined it “must defer to the agency on such matters."
 

U.S. Fish and Wildlife Service Regional Director Requests Withdrawal of Proposed Rule to List the Wolverine as Threatened

A Regional Director for the U.S. Fish and Wildlife Service (Service) has directed federal biologists to withdraw their proposed rule to list the wolverine (Gulo gulo luscus) as threatened under the Endangered Species Act. As we reported here, the Service proposed listing the wolverine in February 2013, citing habitat loss due to climate change as the primary threat to the species. Officials in Wyoming, Idaho, and Montana objected to the proposed listing, arguing climate change conclusions are premature. In response to these objections, the Service asked a panel of nine biologists to review the scientific information supporting the proposed listing. In April 2014, the scientists issued a report that concluded wolverines would continue to expand their range in the short term, but climate change would significantly affect their habitat by the end of the century. Based on this report, Terry Rabot, the Assistant Regional Director for the Service’s Pacific Region, recommended that the Service move ahead with the threatened designation. However, in a memorandum dated May 30, 2014, Noreen Walsh, the director of the Service’s Rocky Mountain Region, ordered the recommendation to be reversed. The memorandum, obtained by the Center for Biological Diversity, cites “concern about the degree to which we can reliably predict impacts to wolverine populations from climate change” and directs the Service to “prepare a withdrawal of the proposed rule.” The Director of the Service is expected to make a final decision regarding the proposed rule in early August.

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Conservation Groups Continue to File ESA Lawsuits

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 force the Service to make final listing decisions for four freshwater aquatic species—the Barrens darter (Etheostoma forbesi), holiday darter (Etheostoma brevirostrum), Atlantic pigtoe mussel (Fusconaia masoni), and slenderclaw crayfish (Cambarus cracens)—under the ESA. According to CBD, the species, found in Alabama, Georgia, Tennessee, Virginia, North Carolina and South Carolina, are at risk of extinction due primarily to water pollution and dams.

CBD also filed suit last week to force a final listing decision with respect to the black-backed woodpecker (Picoides arcticus) in California, Oregon, and South Dakota, the San Bernardino flying squirrel (Glaucomys sabrinus californicus) in southern California, and the Ichetucknee siltsnail (Cincinnatia mica) in Florida.

Finally, CBD filed suit challenging the recent listing of the lesser prairie chicken as threatened under the ESA. As we reported here, the Service announced the final rule listing the species in March 2014. Because the species was listed as threatened, rather than endangered, the final rule includes section 4(d) exemptions, which allow for incidental take of the species associated with activities conducted pursuant to approved habitat conservation plans. CBD is challenging the final rule, arguing that the serious threat of extinction to the prairie chicken across its entire range warrants listing the species as endangered, rather than threatened.
 

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

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) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. San Luis & Delta-Mendota Water Authority v. Jewell, No 11-1587 (9th Cir. March 13, 2014). Two other petitions for rehearing en banc were also filed the same day by Intervenor-Appellee California Department of Water Resources and Appellees San Luis & Delta Mendota Water Authority and Westlands Water District.

On May 13, 2014, the States of Nebraska, Alaska, Kansas, Oklahoma, South Carolina, and Wyoming jointly filed an amicus brief (pdf) in support of the petitions. On May 22, 2014, four additional amici curiae briefs were filed supporting en banc review. Specifically, briefs were filed by (1) the National Hydropower Association, Northwest Hydroelectric Association, and Northwest RiverPartners (pdf), (2) Conaway Preservation Group (pdf), (3) Farm Credit West, CoBank, American Farm Bureau Federation, California Farm Bureau Federation, Western Growers Association, and National Council of Farmer Cooperatives (pdf), and (4) Association of California Water Agencies, Friant Water Authority, Southern California Water Committee, Northern California Water Association, California Building Industry Association, and California Forestry Association (pdf).

Among other things, the petitions assert that en banc review is warranted because (1) the panel excused FWS from basing its actions on the best available scientific information, as is expressly required by the Endangered Species Act, and (2) the panel held that FWS need not consider the effect of its actions on third parties, as is required by applicable regulations. According to petitioners, the divided-panel ruling conflicts with the precedent of the Supreme Court, the Ninth Circuit, and other circuits.
 

California District Court Finds Biological Assessments Inconsistent and Enjoins Caltrans' Project

In Souza v. California Department of Transportation, No. 13-cv-04407 (N.D. Cal. May 2, 2014), plaintiffs sought to enjoin a project proposed by the California Department of Transportation (Caltrans) to modify U.S. Route 199 and State Route 197 in Del Norte County, California, near the Smith River. Plaintiffs challenged the adequacy of Caltrans’ consultation with the National Marine Fisheries Service (Service) regarding the impacts of the project on the Southern Oregon Northern California Coast Evolutionary Significant Unit of the threatened coho salmon (SONCC coho). As required under section 7 of the Endangered Species Act (ESA), Caltrans prepared a biological assessment (BA) regarding the project. Caltrans subsequently revised the BA two more times, appearing to conclude that the project may affect, but is not likely to adversely affect, the SONCC coho. The Service thereafter issued a letter of concurrence with Caltrans’ assessment, thereby completing informal consultation pursuant to section 7.

Plaintiffs challenged the consultation process, arguing Caltrans’ BAs and the Service’s letter of concurrence were inadequate due to internal inconsistencies within the BAs. The U.S. District Court for the Northern District of California agreed, finding the BAs “pose material inconsistencies and fail to reasonably explain what Caltrans' ESA conclusions were such that NMFS could properly concur in them.” Among other things, the BAs concluded the proposed project “will affect” the SONCC coho, “may have an adverse affect” on the SONCC coho, “is likely to adversely affect” the SONCC coho’s critical habitat, and “is not likely to adversely affect” the SONCC coho. Based on these inherent inconsistencies, the court concluded plaintiffs had raised serious questions regarding the adequacy of the ESA review and consultation process, and enjoined the project pending resolution of plaintiffs’ claims on the merits.
 

House Natural Resources Committee to Hold Full Committee Markup on ESA Reform Bills

The House Natural Resources Committee has scheduled a full Committee markup of four bills intended to bring additional transparency to the Endangered Species Act (ESA). The markup, which involves committee debates, amendments, and rewrites of the proposed legislation, is scheduled for this Wednesday, April 30, 2014. The Committee will be reviewing four ESA reform bills introduced last month. As we reported here, the bills would amend the ESA as follows:

H.R. 4315 (“21st Century Endangered Species Transparency Act”) – Introduced by Rep. Doc Hastings (R-Wash); the bill would require online publication of the “best scientific and commercial data available” that is the basis for ESA decision-making.

H.R. 4316 (“Endangered Species Recovery Transparency Act”) – Introduced by Rep. Cynthia Lummis (R-Wyo.); the bill would require federal agencies to disclose certain expenditures, including the amount of funds expended in ESA-related lawsuits, the number of employees dedicated to ESA litigation, and the amount of attorneys’ fees paid to successful ESA litigants.

H.R. 4317 (“State, Tribal, and Local Species Transparency and Recovery Act”) – Introduced by Rep. Randy Neugebauer (R-Tex.); the bill would require use of information provided by state, tribal, and county governments in decision-making under the ESA.

H.R. 4318 (“Endangered Species Litigation Reasonableness Act”) – Introduced by Rep. Bill Huizenga (R-Mich.); the bill would impose a cap of $125 per hour on the governments’ reimbursement of attorneys’ fees under the ESA.
 

District Court Upholds Controversial Settlement Agreements between U.S. Fish and Wildlife Service and Environmental Groups

This week, the United States District Court for the District of Columbia upheld (pdf) two settlement agreements – one between the U.S. Fish and Wildlife Service (Service) and WildEarth Guardians, and the other between the Service and the Center for Biological Diversity – that collectively require the Service to determine whether to list 251 species under the Endangered Species Act (ESA) in accordance with certain deadlines. See National Association of Home Builders v. U.S. Fish and Wildlife Service, No. 12-2013 (Mar. 31, 2014).  Plaintiffs, who included organizations representing landowners and businesses in areas where the 251 species may occur, argued the settlement agreements violate the procedural requirements of section 4 of the ESA because they prohibit the Service from determining that protection for a species is warranted, but precluded by higher priority listings. Defendants moved to dismiss the case for lack of jurisdiction and failure to state a claim. The court granted defendants’ motion, finding plaintiffs could not demonstrate standing – specifically, injury in fact – because the settlement agreements do not require any specific substantive outcome; the agreements only require the Service to make determinations pursuant to a set schedule. For further information regarding the controversial settlement agreements, please see our posts dated December 10, 2013 and May 11, 2011.

Ninth Circuit Issues Long-Awaited Delta Smelt Decision

Today, the United States Court of Appeals for the Ninth Circuit issued a decision (pdf) relating to the 2008 biological opinion (BiOp) issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. The long-awaited decision (oral argument was held on September 10, 2012) reversed in part and affirmed in part the district court’s judgment invalidating the BiOp and remanding it to the Service. The opinion is authored by Judge Bybee, with partial concurrence and partial dissent by both Judge Rawlinson and visiting Eighth Circuit Judge Arnold.

While the panel reversed several aspects of the lower court’s decision concerning the merits of the case under the Endangered Species Act, the panel affirmed the district court’s order remanding the BiOp so that the U.S. Bureau of Reclamation can prepare an environmental impact statement pursuant to the National Environmental Policy Act.
 

National Marine Fisheries Service to Conduct Status Review for Four Cetaceans

Today, the National Marine Fisheries Service (NMFS) announced (pdf) a 90-day finding on a petition to list the Hector’s dolphin (Cephalorhynchus hectori), the Baltic Sea subpopulation of harbor porpoise (Phocoena phocoena), the eastern Taiwan Strait subpopulation of the Indo-Pacific humpback dolphin (Sousa chinensis), and the Fiordland subpopulation of the bottlenose dolphin (Tursiops truncatus) under the Endangered Species Act. The announcement came as a result of NMFS' determination that the petition presented substantial scientific and commercial information indicating that listing may be warranted.
 
NMFS will conduct a 12-month status review of the species to determine whether the best scientific information available supports listing. According to the announcement, NMFS is accepting information and comments on the species through April 22, 2014.

NMFS also stated in the announcement that it had determined that the petition did not present substantial information indicating that listing the Galapagos fur seal (Arctocephalus galapagoensis) is warranted, and declined to take further action with respect to this species.
 

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California Department of Fish and Wildlife Recommends Against Listing the Gray Wolf

Yesterday, the California Department of Fish and Wildlife (DFW) recommended that the California Fish and Game Commission not list the gray wolf as endangered under the California Endangered Species Act.  Following a yearlong review, DFW determined that the scientific evidence does not warrant listing the species at this time.  Instead, DFW recommended designating the gray wolf as a species of special concern – which affords the gray wolf some protection, including prohibiting the killing of the species – with a recommendation to consider placing the gray wolf on the endangered species list at a later date.

The recommendation is in response to a petition filed by environmental groups in 2012 to list the species.  As we reported here, the announcement also follows the U.S. Fish and Wildlife Service’s proposal to delist the gray wolf under the federal Endangered Species Act.