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Endangered Species Law and Policy

David Miller

David Miller David Miller is a member of the Firm's Environment and Land Use and Eminent Domain and Valuation Practice Groups. As a former Nossaman summer associate, Mr. Miller has assisted attorneys in challenging federal agency actions for violations of the Endangered Species Act. He also has experience drafting legal memoranda for clients on topics such as bond requirements for solar projects and local agencies' imposition of development impact fees. Mr. Miller previously served as a judicial extern for the Honorable Suzanne H. Segal in the United States District Court for the Central District of California, where he drafted orders and reviewed motions, pleadings, and memoranda. Prior to law school, Mr. Miller worked as a Staff Consultant for Criterium Consulting Group, a consulting firm that provides expert witness services for complex construction litigation.

Posts by David Miller

Endangered Species Act Case Roundup

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

Two noteworthy cases have recently been issued by the Ninth Circuit Court of Appeals and the U.S. District Court for the Northern District of California.  The two cases address: (1) the interplay between the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) and (2) the use of the deliberative process… Continue Reading

National Marine Fisheries Service Concludes Iliamna Lake Harbor Seals Are Not Distinct Population, Denies Endangered Species Act Protections

Posted in Listing, National Marine Fisheries Service

The National Marine Fisheries Service (NMFS) recently completed its review of the status of eastern North Pacific harbor seals (Phoca vitulina richardii) in Iliamna Lake, Alaska, a large freshwater lake in Alaska connected to the Bristol Bay region of the Bering Sea.  NMFS concluded (pdf) that the seals do not constitute a species, subspecies, or… Continue Reading

U.S. Fish and Wildlife Service and National Marine Fisheries Service Revise Endangered Species Act Petition Process

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

On September 27, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Agencies) published a final rule (pdf) that revises the regulations governing the Endangered Species Act’s (ESA) petition process.  According to the Agencies, the revisions are intended to improve the content and specificity of petitions and enhance the efficiency and effectiveness… Continue Reading

U.S. Fish and Wildlife Service Delists Three Fox Species and Reclassifies One Other

Posted in Delisting, Fish & Wildlife Service

The U.S. Fish and Wildlife Service (Service) published a final rule (pdf) removing the San Miguel Island fox (Urocyon littoralis littoralis), Santa Rosa Island fox (U. l. santarosae), and Santa Cruz Island fox (U. l. santacruzae) from the Federal List of Endangered and Threatened Wildlife under the Endangered Species Act (ESA).  The Service also reclassified… Continue Reading

U.S. Fish and Wildlife Service Increases Civil Penalties

Posted in Fish & Wildlife Service, Regulatory Reform

The U.S. Fish and Wildlife Service (Service) published an interim rule (pdf) revising its civil procedure regulations for the assessment of civil penalties for violations of various laws and regulations within the Service’s jurisdiction.  The Service issued the revised procedures pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015, which requires agencies to update… Continue Reading

Senate Hears Testimony on Senator Feinstein’s Emergency Drought Relief Bill

Posted in Congress, Legislation, Sacramento-San Joaquin Delta

On May, 17, 2016, the U.S. Senate Committee on Energy and Natural Resources’ Subcommittee on Water and Energy held hearings on a number of pending bills, including S. 2533, sponsored by Senator Diane Feinstein (D-CA).  The bill, titled “California Long-Term Provisions for Water Supply and Short-Term Provisions for Emergency Drought Relief Act,” is aimed at… Continue Reading

Congressional Hearings to be Held on New Critical Habitat Rules and Delisting under the Endangered Species Act

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

This week, two congressional committees are holding three separate hearings on issues related to the Endangered Species Act (ESA).  On April 19, the House Committee on Natural Resources will hold an oversight hearing entitled Recent Changes to Endangered Species Critical Habitat Designation and Implementation.  On April 20 and 21, the House Oversight and Government Reform… Continue Reading

U.S. Fish and Wildlife Service Proposes Revisions to Mitigation Policy

Posted in Fish & Wildlife Service, Regulatory Reform

On March 8, 2016, the U.S. Fish and Wildlife Service (Service) announced (pdf) proposed revisions to its Mitigation Policy that has guided Service recommendations on mitigating the adverse impacts of development on fish, wildlife, plants, and their habitats since 1981.  The revised policy provides a framework for achieving a net gain in conservation outcomes, or… Continue Reading

California Fish and Game Commission Designates Tricolored Blackbird as a Candidate Species under California Endangered Species Act

Posted in Conservation

On December 10, 2015, the California Fish and Game Commission (Commission) voted to advance the tricolored blackbird (Agelaius tricolor) as a candidate species for listing under the California Endangered Species Act (CESA).  The species is now subject to the same legal protections as endangered or threatened species under CESA. As we previously reported, on June… Continue Reading

U.S. Fish and Wildlife Service Delists Delmarva Fox Squirrel

Posted in Delisting, Fish & Wildlife Service

On November 16, 2015, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) removing the Delmarva fox squirrel (Sciurus niger cinereus) from the list of endangered and threatened species.  Following its 2012 review of the species, the Service concluded that the best available scientific and commercial data indicate the Delmarva fox squirrel is… Continue Reading

U.S. Fish and Wildlife Service Finds Listing of New England Cottontail Not Warranted Due to Species Recovery From Conservation Efforts

Posted in Conservation, Fish & Wildlife Service, Listing

On September 15, 2015, the U.S. Fish and Wildlife Service (Service) published (pdf) its 12-month finding on a petition to list the New England cottontail (Sylvilagus transitionalis) as an endangered or threatened species under the Endangered Species Act (ESA).  The Service determined that listing the species is not warranted. The New England cottontail is the… 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

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

National Defense Authorization Act Would Restrict Federal Greater Sage-Grouse Protections

Posted in Congress, Fish & Wildlife Service, Legislation

On April 27, 2015, the Chairman of the House Armed Services Committee, released the text (pdf) of the National Defense Authorization Act (Act), including language that would ban the U.S. Fish and Wildlife Service (Service) from issuing its listing decision for the greater sage-grouse (Centrocercus urophasianus) under the Endangered Species Act (ESA) through September 30,… 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

National Marine Fisheries Service Considering Revision to Critical Habitat Designation for Southern Resident Killer Whales

Posted in Critical Habitat, National Marine Fisheries Service

On February 24, 2015, the National Marine Fisheries Service (NMFS) announced a 12-month finding (pdf) on the Center for Biological Diversity’s (CBD) petition to revise the critical habitat designation for the Southern Resident killer whale (Orcinus orca) Distinct Population Segment (DPS) under the Endangered Species Act (ESA).  The 12-month finding describes how NMFS intends to proceed… Continue Reading

National Marine Fisheries Service Lists Five Species of Sawfish as Endangered

Posted in Listing, National Marine Fisheries Service

The National Marine Fisheries Service (Service) recently published (pdf) its final rule listing five species of sawfish as endangered under the Endangered Species Act (ESA).  The final rule contains the Service’s determination that the narrow sawfish (Anoxypristis cuspidate), dwarf sawfish (Pristis clavata), largetooth sawfish (collectively, Pristis pristis), green sawfish (Pristis zijsron) and the non-U.S. distinct population… Continue Reading

National Marine Fisheries Service Issues Biological Opinion for Army Corps of Engineers’ Nationwide Permit Program

Posted in Consultation, National Marine Fisheries Service

On November 24, 2014, the National Marine Fisheries Service (Service) issued (pdf) a new Biological Opinion (BiOp) (pdf) for the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit Program under the Clean Water Act.  The BiOp constitutes the conclusion of the formal programmatic consultation process between the Corps and the Service under the Endangered Species… Continue Reading

U.S. Fish and Wildlife Service Proposes to List African Lions as Threatened

Posted in Conservation, Fish & Wildlife Service, Listing

The U.S. Fish and Wildlife Service (Service) recently announced that it is proposing to list the African lion (Pantera leo leo) as threatened under the Endangered Species Act (ESA). The proposed listing is the result of a 2011 petition to list the species as endangered. In the Service’s 12-month finding on that petition, the Service… Continue Reading

U.S. Fish and Wildlife Service Proposes to List 23 Mariana Island Species as Threatened or Endangered

Posted in Conservation, Fish & Wildlife Service, Listing

The U.S. Fish and Wildlife Service (Service) has published (pdf) a proposed rule to list 21 species as endangered and 2 species as threatened under the Endangered Species Act (ESA). Of the 21 species the Service proposes to list as endangered, twelve are plant species and nine are animal species. The two proposed threatened species… Continue Reading

U.S. Fish and Wildlife Service Extends Protection for Canada Lynx

Posted in Conservation, Fish & Wildlife Service, Listing

 On Friday, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) revising the critical habitat designation for the contiguous United States distinct population segment (DPS) of the Canada lynx (Lynx canadensis) and revising the boundary of the Canada lynx DPS. The revised critical habitat designation consists of approximately 38,954 square miles of… Continue Reading

U.S. Fish and Wildlife Service Withdraws Proposal to List North American Wolverine as Threatened

Posted in Fish & Wildlife Service, Listing

 The U.S. Fish and Wildlife Service (Service) announced today that it is withdrawing its proposal to list the North American wolverine (Gulo gulo luscus) as threatened under the Endangered Species Act (ESA). The decision to withdraw the listing proposal followed the consensus recommendation of the Service’s three Regional Directors for the regions encompassing the wolverine’s… Continue Reading