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Endangered Species Law and Policy

Ben Rubin

Ben Rubin Ben Rubin assists clients on a variety of land use and eminent domain related issues, including matters dealing with the Federal and State Endangered Species Act, the California Environmental Quality Act, local zoning variances, right-to-take challenges, valuation of property interests, and the Telecommunications Act of 1996. Before joining Nossaman, Mr. Rubin was a law clerk to the Honorable Andrew J. Guilford, United States District Judge. He also served as an intern for the Honorable Patrick J. Walsh, United States Magistrate Judge.

Posts by Ben Rubin

Fifth Circuit Issues Contentious Dissent Over Designation of Louisiana Land

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

On June 13, 2016, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, held that the U.S. Fish and Wildlife Service (FWS) had properly included approximately 1,500 acres in Louisiana as designated critical habitat for the endangered dusky gopher frog (Rana sevosa), even though the frog did not inhabit the land and significant alterations… Continue Reading

U.S. Fish and Wildlife Service Issues Annual Candidate Notice

Posted in Listing

The Candidate Notice of Review is an annual appraisal by the U.S. Fish and Wildlife Service (Service) of plants and animals that are candidates for Endangered Species Act protection.  A “candidate” species is a species for which there is sufficient information to support a proposal for listing as an endangered or threatened species under the Endangered Species Act, but the formal… Continue Reading

Wolverine Status Review Reinitiated

Posted in Court Decisions, Fish & Wildlife Service, Listing

The distinct population segment of the North American wolverine (Gulo gulf luscus) has had a long and difficult history with the Endangered Species Act (ESA).  However, things appeared to be changing in 2013, when, after denying a number of prior listing petitions at various stages of the process, the U.S. Fish and Wildlife Service (Service) announced its proposal… Continue Reading

District Court Dismisses Challenge to Biological Opinions In Light of Circuit Court’s Exclusive Jurisdiction

Posted in Court Decisions, National Marine Fisheries Service

Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological opinions issued by the National Marine Fisheries Service (NMFS) for four hydroelectric projects on the Kennebec River in Maine, finding… Continue Reading

D.C. Circuit Holds Informational Standing Nonexistent Prior to 12-Month Finding

Posted in Court Decisions, Fish & Wildlife Service

In a recent decision, the U.S. Court of Appeals for the District of Columbia affirmed the dismissal of an environmental organization’s Endangered Species Act (ESA) claim, concluding that the organization lacked standing because the informational injury alleged in the complaint could not, as a matter of law, arise until after the U.S. Fish and Wildlife… Continue Reading

Wolf-Rider Introduced in House Funding Bill

Posted in Congress, Fish & Wildlife Service, Legislation

As recently reported by the Center for Biological Diversity, a rider has been proposed for an appropriations bill that would provide $1.5 billion to the U.S. Fish and Wildlife Service in 2017.  The controversial rider would remove current Endangered Species Act protections for gray wolf populations in Michigan, Wisconsin, Minnesota, and Wyoming.  The appropriations bill, which is currently… Continue Reading

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

U.S. Fish and Wildlife Service Concludes Northern Wolf Species Doesn’t Merit Listing

Posted in Fish & Wildlife Service, Listing

On January 6, 2016, the U.S. Fish and Wildlife Service (Service) issued its 12-month finding on the petition to list the Alexander Archipelago wolf (Canis lupus ligoni) as an endangered or threatened species under the Endangered Species Act, concluding that listing the wolf species throughout all or a significant portion of its range “is not warranted… 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

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

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

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 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

Federal Government Proposes Revisions to Endangered Species Act Regulations

Posted in Critical Habitat, Fish & Wildlife Service, Listing, National Marine Fisheries Service, Regulatory Reform

While a number of Endangered Species Act (ESA) reform bills continue to wind their way through Congress (see our May 6, 2015 post), yesterday, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced their own plan to “increase regulatory predictability, increase stakeholder engagement, and improve science and transparency” when acting on petitions to list, uplist, downlist,… Continue Reading

Citing Conservation Plan and $45 Million in Funding, FWS Concludes Listing for Bi-State Population of Greater Sage Grouse is Unnecessary

Posted in Fish & Wildlife Service

While the larger controversy is far from over, for the California and Nevada populations of the greater sage grouse (Centrocercus urophasianus), the controversy does appear to be put to rest.  In 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list the bi-state population as threatened under the Endangered Species Act… 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

Agencies Must Aim for Recovery of the Species When Designating Critical Habitat

Posted in Critical Habitat

In a decision issued earlier this week, a U.S. District Court rejected the U.S. Fish and Wildlife Service’s (Service) interpretation of the Endangered Species Act (ESA), finding that its interpretation of the critical habitat designation requirement constituted an impermissible construction of the statute.  Ctr. for Biological Diversity v. Kelly, Case No. 1:13-cv-00427 (D. Idaho Mar. 23, 2015) (pdf).  Specifically,… 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

U.S. Fish and Wildlife Service Re-Opens Comment Period for Cuckoo Critical Habitat

Posted in Critical Habitat

As we reported in October, after significant pressure from Congress, the U.S. Fish and Wildlife Service (Service) announced its intent to re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah,… Continue Reading

U.S. Fish and Wildlife Service Re-Opens Comment Period for Cuckoo Under Pressure from Congress

Posted in Critical Habitat, Fish & Wildlife Service

Yesterday, the U.S. Fish and Wildlife Service (Service) announced that it will re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah and Wyoming.  The announcement came after 17 members of Congress requested that… Continue Reading

Service Proposes to List Fisher DPS As Threatened

Posted in Listing

On October 6, the U.S. Fish and Wildlife Service (Service) issued a news release (pdf) announcing its proposal to list the West Coast Distinct Population Segment (West Coast DPS) of fisher (Pekanian pennanti) as threatened under the Federal Endangered Species Act (ESA), in part due to significant threats from illegal marijuana farming.  The fisher belongs to a family… Continue Reading