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 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.


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.   

District Court Finds Columbia River Hatchery Violates Endangered Species Act

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 Chinook, Lower Columbia River coho, Columbia River chum, and Lower Columbia River steelhead. Plaintiffs alleged the hatchery causes take due to competition from hatchery fish, introduction of disease, and genetic introgression.

In its decision (pdf) issued January 16, 2014, the U.S District Court for the District of Oregon agreed, finding the National Marine Fisheries Service (NMFS) failed to provide a reasoned analysis for its determination that continued operation of the hatchery would not jeopardize the listed species. The court also invalidated the incidental take statement issued for the hatchery, finding the methodologies used by NMFS to set the take limit and to determine the trigger for reconsultation were not supported by the record.

The court also held that NMFS violated the National Environmental Policy Act by approving hatchery genetic management plans for the hatchery without preparing an environmental impact statement.

The court ordered the parties to confer regarding remedies, including with respect to the 2014 release of hatchery smolts. The parties are scheduled to report back to the court tomorrow, January 22, 2014.

Endangered Species Act Turns 40

December 28, 2013 marked the 40th birthday of the Endangered Species Act (ESA), which was signed into law by President Richard Nixon on December 28, 1973. According to Sally Jewell, the Secretary of the Interior: “This landmark law has helped to stop the slide toward extinction of hundreds of species. Along the way, we have strengthened partnerships among states, tribes, local communities, private landowners and other stakeholders to find conservation solutions that work for both listed species and economic development.” Supporters of the Act credit it for bringing several species, including the bald eagle (Haliaeetus leucocephalus), the black-footed ferret (Mustela nigripes), and the peregrine falcon (Falco peregrinus), back from the brink of extinction. Some critics believe that animals listed under the ESA are slow to recover and that the law could be improved to better protect imperiled species, while others believe that it imposes unacceptably high costs on society that are not justified by the benefits it affords listed species.

House Natural Resources Committee Holds Fifth Oversight Hearing on Endangered Species Act

Last week, the House Natural Resources Committee held its fifth oversight hearing on the Endangered Species Act (ESA). Entitled “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies,” the hearing included over a dozen Republican witnesses, with only three Democrats.

At the hearing, critics of the ESA urged reform to ensure that the statute’s focus is on recovering species and science, rather than litigation. Referencing the landmark 2011 settlement between Center for Biological Diversity (CBD) and the U.S. Fish and Wildlife Service (Service), which requires the Service to review 757 species by 2018, Chairman Doc Hastings (R-Wash.) stated that “the ‘listing-by-litigation’ approach is not working for people and species.” He continued: “Undoubtedly, some believe cramming hundreds of obscure species onto the ESA list under deadlines and blocking off huge swaths of land because of the settlements are ‘successes,’ but many areas of the country tell a different account of how these policies are impacting their communities, their economies, and ultimately, the species.” In response, CBD’s endangered species policy director Brett Hartl said the settlement “simply requires the [Service] to do its job in a timely manner and make decisions about protecting species.”

For additional information regarding prior ESA oversight hearings, please see our December 10, 2013 and June 4, 2013 posts.

U.S. Fish and Wildlife Service Proposes Revised Rule for the Lesser Prairie-Chicken

On December 11, 2013, the U.S. Fish and Wildlife Service (Service) issued a revised special rule (pdf) that would provide for a limited exception to the protections currently proposed for the lesser prairie-chicken (Tympanuchus pallidicinctus) under the Endangered Species Act (ESA). The revised special rule incorporates a new five-state rangewide conservation plan for the species, and allows take of lesser prairie-chickens so long as such take is incidental to activities conducted by an individual enrolled in the rangewide conservation plan. Previous versions of the special rule referenced a conservation plan generally; the Service issued the revised rule to specifically reference the new rangewide plan.

As we previously reported, the special rule is proposed pursuant to section 4(d) of the ESA, and would only be implemented if the lesser prairie-chicken receives ESA protections. The Service also reopened the comment period on the proposal to list the species. According to the Service, comments on the revised special rule and the underlying listing proposal will be accepted through January 10, 2014.


U.S. Fish and Wildlife Service to Determine Whether to List the Arctic Grayling

Last week, the U.S. Fish and Wildlife Service (Service) announced (pdf) that it will begin a status review of the upper Missouri River distinct population segment (DPS) of the Arctic grayling (Thymallus arcticus). The status review will allow the Service to determine whether the DPS should be listed as threatened or endangered under the Endangered Species Act (ESA).

The Arctic grayling is found primarily in the Arctic and Pacific oceans, although some populations are river-dwelling. The fish has a long, thin body with a forked tail and can grow up to 13 inches long. The DPS that is the subject of the Service’s review inhabits watersheds in the upper Missouri River basin upstream of Great Falls, Montana. Threats to the population include dam building and predation.

The species was first placed on the candidate list in 1994. In 2010, the Service determined the upper Missouri River population was considered a DPS under the ESA, and found that listing the DPS was warranted but precluded by higher priority listing actions. The Service’s current status review is the result of its 2011 settlement with WildEarth Guardians, under which the agency must issue decisions on 252 candidate species by 2016.

According to the announcement, the Service will accept information regarding the DPS through December 26, 2013.

U.S. Fish and Wildlife Service Declines to List Gunnison's Prairie Dog

On November 14, 2013, the U.S. Fish and Wildlife Service (Service) determined (pdf) that Gunnison’s prairie dog (Cynomys gunnisonidoes) does not warrant listing under the Endangered Species Act (ESA).  According to the Service, the species’ populations are stable and there are no threats causing or projected to cause the species to be at risk of extinction.  The Service also removed Gunnison’s prairie dog from the candidate list of threatened or endangered species. 

Gunnison’s prairie dog includes two subspecies that occupy areas of Arizona, Colorado, New Mexico, and Utah.  One subspecies is found in montane portions of its range, while the other occupies prairie areas.  The Service determined in 2008 that the montane population warranted listing under the ESA due to the effects of the sylvatic plague.  However, the Service found that the listing was precluded by higher-priority listing proposals, and thus the species was placed on the candidate list.

The Service’s recent determination – that neither subspecies warrants listing under the ESA – is based on new information regarding the prairie dog’s taxonomy (including a genetic study about the distinction between the two subspecies), the dynamics of sylvatic plague, and conservation efforts for the species.