Ben Rubin

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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.


FTA and FHWA Issue New MAP-21 Guidance That Could Penalize Wildlife Agencies

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or environmental assessment for a "highway project, public transportation capital project, or multimodal project," any other Federal agency that has the authority to issue or deny a permit, license, or other approval related to the project shall act by:  "(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and (II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969."  23 U.S.C. 139(h)(6)(B)(i)(I) and (II).  Further, if the Federal agency fails to act within this time period, MAP-21 authorizes the rescission of federal funds from the delinquent Federal agency.  23 U.S.C. 139(h)(6)(B)(i).  Depending on the type of project, and subject to certain caps, the penalty could amount to as much as $20,000 per week for each week until a final decision is made.  

On March 28, 2014, the FTA and FHWA issued a joint guidance document interpreting the penalty provisions described above.  Notably, the joint guidance document states that the penalty provisions apply to, among other decisions, "determinations, concurrences, and other information that concludes an informal or formal consultation process [under the Endangered Species Act] that is necessary in order for a project to proceed."  Thus, at first blush, it appears that the penalty provision might finally spur the Federal wildlife agencies to complete their formal section 7 consultations in a somewhat timely manner (while the Endangered Species Act establishes a 135-day deadline for completion of formal section 7 consultations, the Federal wildlife agencies routinely fail to meet this statutory time period).  However, the joint guidance document also provides a get out of jail free card. 

As explained in the joint guidance document, the 180-day clock will not begin until the Federal agency confirms receipt of a "complete" application or formal request.  And, the FTA and FHWA have decided to leave the Federal agency with the "responsibility to make the determination of whether an application or formal request for a permit, license, or other approval is complete and track the 180-day period for their review."  Thus, as explained in the joint guidance document, a Federal agency can avoid any penalties if it deems the application or formal request incomplete, and provides the FTA or FHWA with a similar notification.  As explained in the joint guidance document, a Federal agency can also stop the clock, even if it has received a complete application, if it "routinely requests additional information from the applicant as it progresses through its review."  In this situation, the 180-day clock would not start again until the Federal agency confirms receipt of the additional information.

The joint guidance document also explains that a Federal agency can avoid penalties by requesting a "no-fault certification" demonstrating that the agency is not able to render a decision because it has not received necessary information from another agency, or there is significant new information or circumstances that require additional analysis. 

In light of the budget cuts already impacting a number of Federal agencies (e.g., EPA, U.S. Fish and Wildlife Service, National Marine Fisheries Service, Army Corps of Engineers), the ability to avoid weekly penalties of up to $20,000 by simply requesting additional information may be too tantalizing to pass up.  And, if that is the case, do the penalty provisions actually expedite the necessary review or slow it down?   

U.S. Fish and Wildlife Service Proposes to Reclassify California Toad

On March 27, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding and proposed rule to reclassify the arroyo toad (Anaxyrus californicus), a species that is believed to exist exclusively in California, from endangered to threatened under the Endangered Species Act.  The 12-month finding and proposed rule were initiated by a petition submitted in 2011 by The Pacific Legal Foundation requesting that the Service delist the Inyo California towhee and reclassify from endangered to threatened the arroyo toad, Indian Knob mountainbalm, Lane Mountain milk-vetch, Modoc sucker, and Santa Cruz cypress.  In the 12-month finding and proposed rule, the Service stated that while "there are still significant threats impacting the arroyo toad currently and into the future . . . , we conclude that the overall magnitude of threats impacting the arroyo toad has decreased since the time of listing, due in part to implementation of conservation and management actions."  The Service cited operation of dams and water diversions, urban development, introduced predator species, and drought as some of the most significant threats to the arroyo toad.  According to the 12-month finding and proposed rule, comments must be received or postmarked on or before May 27, 2014.       

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U.S. Fish and Wildlife Service Issues Revised Recovery Plan for the Pallid Sturgeon

The U.S. Fish and Wildlife Service (Service) has announced the availability of a revised recovery plan for the pallid sturgeon (Scaphirhynchus albus), a species that is found in the Missouri and Mississippi River basins, has been described as having a "unique dinosaur-like appearance," and has been listed as endangered since 1990.  As summarized by the Service, the revised recovery plan updates the "current understanding of the species life history requirements, identifies probable threats that were not originally recognized, includes revised recovery criteria, and based on improved understanding of the species, describes those actions believed necessary to eventually delist the species."  The Service believes that the pallid sturgeon "are an important indicator of the health of several of America's largest rivers, and represent a unique piece of America's natural history, with fossil ancestors dating back over 70 million years."  The original recovery plan was drafted in 1993.     

U.S. Fish and Wildlife Service Announces Listing of Two Texas Salamanders

The U.S. Fish and Wildlife Service has announced a final rule listing the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eureycea chisholmensis) as threatened species under the Endangered Species Act.  The final rule is scheduled to be published in the Federal Register on Monday.  According to an article by Claire Osborn of the Austin American-Statesman, "Williamson County officials have said the area would lose millions of dollars in development if the salamanders are listed."

After More Than Five Years, Proposed Rule to Delist Hawaiian Hawk Reopened for Comment

In August 2008, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to delist the Hawaiian hawk (Buteo solitarius), also referred to as the io, from the federal list of endangered or threatened species.  The proposed rule states that the proposed action is "based on a thorough review of the best available scientific data, which indicates that range-wide population estimates have been stable for at least 20 years, and the species has recovered and is not likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range."  While the official comment periods on the proposed rule and the proposed post-delisting monitoring plan closed on August 4, 2009, the Service did not make a final determination on the proposed rule. 

Last week, on February 12, 2014, the Service announced the reopening of the public comment period on the proposed rule to delist the Hawaiian hawk.  In the announcement, the Service states that "[a]lthough new information shows negative habitat trends due to urbanization and nonnative plant species invasion, efforts at habitat restoration that benefit the Hawaiian hawk are achieving success," and that even in the face of potential habitat concerns "the Hawaiian hawk is resilient enough to maintain itself over time in a variety of habitat types." 

The announcement states that comments submitted during the prior comment periods do not need to be resubmitted.  However, comments on the new information presented in the announcement "must be received or postmarked no later than April 14, 2014." 

The proposed rule acknowledges that if the Hawaiian hawk is delisted, thereby stripping away all protection provided by the Endangered Species Act, the hawk would still be protected by the Migratory Bird Treaty Act. 

For another take on the Service's announcement and proposed action, see the following article by Carolyn Lucas-Zenk in the West Hawaii Today.

For The First Time Ever, U.S. Fish and Wildlife Service Declares Fish Recovered

As recently reported in The Oregonian, the U.S. Fish and Wildlife Service (Service) has declared the Oregon chub (Oregonichthys crameri) recovered, and will remove the species from the list of federally threatened and endangered species.  According to the report, this is the first fish ever taken off the endangered species list.  In a previous report, the Service stated that the fish's improved status was attributable to the efforts of the Oregon Chub Working Group, and "successful introduction of Oregon chub into new locations within their historical range and the discovery of new, previously undocumented populations." 

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Congress Exempts U.S. Population of Endangered Species From ESA

On January 17, 2014, President Obama signed into law the $1.1 trillion dollar Omnibus Spending Bill, thereby funding the federal government through October 1.  Included in the Bill was a provision directing the Secretary of the Interior to reinstate an exemption that exempted the scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope (Addax nasomaculatus) from the Endangered Species Act.  The rider was introduced by Representative John Carter (R-Tex).  As we recently reported, proponents of the rider believe that exempting the species will incentivize ranchers to maintain their populations in order to profit from hunting revenue.  Since the species were re-listed as endangered in 2012, their populations have fallen significantly.      

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Sage Grouse Controversy Continues

As we previously reported, the U.S. Fish and Wildlife Service (Service) has proposed to list the Gunnison sage-grouse (Centrocercus minimus) and the Greater sage-grouse (Centrocercus urophasianus) as endangered and threatened species under the Endangered Species Act, and to designate millions of acres of land as critical habitat for the species.  (See our prior posts on January 23, 2013 and October 29, 2013.)  Because of the controversy surrounding the proposed listings and designations, the Service has extended the comment period on the proposals to ensure that the public has an adequate opportunity to review and comment on the proposed rules.  (See our prior posts on December 19, 2013 and November 13, 2013.)  In an effort to avoid any further action by the Service, a number of State and local agencies are attempting to develop a sage grouse management plan that would avoid the need for listing either of the two species.  (See articles by Heather Sackett on January 5, 2014, post by Mack Cole on January 6, 2014, article by Glenn Oppel on January 8, 2014.)  Only time will tell whether these efforts are successful. 

U.S. Fish and Wildlife Service Extends Comment Period for Greater Sage-Grouse and Designates Critical Habitat for Franciscan Manzanita

Today, the U.S. Fish and Wildlife Service ("Service") announced (pdf) the extension of the public comment period on the proposals to list and designate critical habitat for the the Bi-State Distinct Population Segment (DPS) of greater sage-grouse (Centrocercus urophasianus) along the California-Nevada border under the Endangered Species Act, and also announced the designation of approximately 230 acres in San Francisco County as critical habitat for the endangered Franciscan manzanita (Arctostaphylos franciscana).  The Service also released the final economic analysis of the estimated incremental impact of the critical habitat designation in San Francisco County, which projected that the direct incremental cost of the critical habitat designation would be $31,435 over the next 20 years.  The economic analysis concludes that a large portion of the estimated costs would be due to additional consultation costs.  As for the sage-grouse DPS, the Service's announcement states that the comment period on the proposed listing and the proposed 1.86 million acre critical habitat designation would both be extended to February 10, 2014.   

District Court Upholds Biological Opinion for Wind Energy Project in Imperial County, California

On November 20, 2013, the United States District Court for the Southern District of California rejected a challenge by various plaintiffs and upheld the biological opinion and incidental take statement issued by the U.S. Fish and Wildlife Service (Service) for the Ocotillo Wind Energy Facility Project (Project) located in the Sonoran Desert in Imperial County, California.  See The Protect Our Communities Foundation v. Ashe, No. 12-cv-2212 (S.D. Cal. Nov. 20, 2013) (pdf).  The proposed Project, a utility-scale wind power project, would be comprised of 112 wind turbines located on more than 10,000 acres of public land operated by the Bureau of Land Management (BLM).  Because the Project required authorization from the BLM, a federal agency, and overlapped with known usable forage habitat for the endangered Peninsular Bighorn Sheep, a distinct population segment of the desert bighorn sheep (Ovis Canadensis nelson), consultation with the Service was required under Section 7 of the Endangered Species Act.

In 2011, the BLM initiated consultation with the Service and submitted a biological assessment.  Although the Project would potentially reduce suitable forage habitat by approximately 3,962 acres, in 2012 the Service issued a biological opinion concluding that “the proposed action is not likely to jeopardize the continued existence” of the Peninsular Bighorn Sheep.  The Service also issued an incidental take statement authorizing the incidental take of up to five adult ewes and five lambs. 

Plaintiffs challenged the biological opinion in federal court.  As summarized by the district court, the plaintiffs’ challenge was based on the following four arguments:  (1) “the biological opinion is arbitrary and capricious because it improperly downplays the significance of lower elevation, valley-floor habitat,” (2) the biological opinion “is arbitrary and capricious because it ignores evidence that bighorn sheep are poor dispersers,” (3) the biological opinion “is arbitrary and capricious because it improperly downplays the potential for the project to cause stress and associated adverse effects,” and (4) the biological opinion “fails to use the best available scientific evidence.”

Foreshadowing its ultimate holding, the district court began its analysis by explaining that the biological opinion and the conclusions therein are subject to a “highly deferential” standard of review.  The district court then addressed and dismissed each of the plaintiffs’ arguments, finding that the biological opinion “is rationally based on the facts and data from the administrative record,” and the Service “used the best scientific data available.”  For example, the district court found that the biological opinion “presents a rational connection between the facts found and the conclusion that the Project would not affect connectivity among Bighorn sheep habitats.”  Accordingly, the district court upheld the biological opinion and entered judgment in favor of the Service.