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.


House Committee Holds Hearing on Proposed Endangered Species Act Amendments

This morning, the House Committee on Natural Resources is holding a legislative hearing on six proposed amendments to the Endangered Species Act (ESA).  The live video webcast of the hearing can be accessed here.  The six proposed amendments are:

H.R. 1314 - establishing a procedure for approval of certain types of settlements

H.R. 1927 - providing congressional direction for implementation of the ESA as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the State of California

H.R. 4256 - requiring the wildlife agencies to include the number of species on State and private lands as determined by the State in counting the number of a species in a State for purposes of determining whether the species is an endangered or threatened species

H.R. 4284 - amending the ESA to encourage greater State input and authority over species and habitat management by allowing States to propose and implement State Protective Action before species are listed under the ESA

H.R. 4319 - requiring the Secretary of the Interior to publish and make available for public comment a draft economic analysis at the time a proposed rule to designate critical habitat is published

H.R. 4866 - reversing the Department of Interior's listing of the lesser prairie chicken as a threatened species under the ESA, preventing further consideration of listing such a species as a threatened species or endangered species under the ESA pending implementation of the Western Association of Fish and Wildlife Agencies' Lesser Prairie-Chicken Range-Wide Conservation Plan and other conservation measures

 

 

Listing May Be Warranted for Clownfish

In a 90-day finding (pdf) published this morning in the Federal Register, the National Marine Fisheries Service (NMFS) found that the listing of the orange clownfish (Amphiprion percula) "may be warranted" under the Endangered Species Act.  This finding was based in large part on the threat from "bleaching and subsequent loss of anemone habitat resulting from ocean warming" to three species of anemone that host the orange clownfish.  NMFS is now conducting a full status review of the species, and it has solicited scientific and commercial information pertaining to the species with respect to a variety of issues, including, among others:  (1) the historical and current distribution and abundance of the species throughout its range (2) historical and current population trends; (3) life history and habitat requirements; and (4) past, current, and future threats.  According to the notice in the Federal Register, information and comments must be received by November 3, 2014.

In the same 90-day finding, NMFS also found that the listing petition failed to "present substantial scientific or commercial information indicating" that listing may be warranted for six other Indo-Pacific fish species.

Court Reluctantly Upholds Designation of Critial Habitat for Frog

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky gopher frog (Rana sevosa), concluding that even though the frog was last spotted on the property in the 1960s and the only known wild populations of the frog are all located in the State of Mississippi, the designation by the U.S. Fish and Wildlife Service (Service) was not arbitrary or capricious.  Markle Interests, LLC v. U.S. Fish and Wildlife Service, No. 13-234c and 13-413 (Aug. 22, 2014).  

Before finalizing the critical habitat designation, the Service had analyzed the potential economic impacts of the designation on the private property, analyzing three scenarios:  (1) development without the need for a federal permit or approval; (2) partial development because the necessary federal permit or approval would require conservation of 60% of the property; and (3) no development because the necessary federal permit or approval could not be granted in light of impacts to the designated critical habitat.  The Service estimated that the economic impact under the second and third scenarios would be a loss of $20.4 million and $33.9 million, respectively.  In the final rule designating the critical habitat, the Service stated that because it "did not identify any disproportionate costs that are likely to result from the designation[,] the Secretary [did] not exercis[e] his discretion to exclude any areas from this designation of critical habitat for the dusky gopher frog based on economic impacts."  

After dismissing a challenge to plaintiffs' standing, the court explained that under the Endangered Species Act (ESA), both occupied and unoccupied property may be designated as critical habitat.  Thus, the mere fact that the frog was not currently occupying the private property was not determinative.  The court also explained, however, that in order for the Service to designate an area that is not occupied by the species, in addition to considering the economic impact of the designation, the Service must find, based on the best scientific data available, that the designation is "essential for the conservation of the species" and "a designation limited to [the] present range [of the species] would be inadequate to ensure the conservation of the species."

As every independent peer reviewer of the proposed rule concluded that limiting the critical habitat designation to occupied and unoccupied areas in Mississippi would be inadequate to "conserve" the frog, and as the land located in Louisiana contained ephemeral ponds that could play a key role in the future breeding success of the frog, the court found that the Service's "determination seems reasonable and, therefore, entitled to Chevron deference."  Turning to the issue of economic impacts, which the court described as "the most compelling issue advanced by plaintiffs in challenging the validity of the Rule," the court concluded that in light of the "somewhat paralyzing standard of review," it had to defer "to the agency's expertise in its methods for cost projections and its refusal to except [the property] from the designation."      

While the court's ruling was based primarily on the deference accorded the Service under the ESA and the Administrative Procedure Act, it was certainly not without its fireworks.  For example, in one portion of the opinion the court described defendants' attack on standing grounds as "utterly frivolous."  The court also stated, summarizing its view of the issues and the law:  "The Court has little doubt that what the government has done is remarkably intrusive and has all the hallmarks of governmental insensitivity to private property.  The troubling question is whether the law authorizes such action and whether the government has acted within the law.  Reluctantly, the Court answers yes to both questions."  

While plaintiffs did not prevail in the district court, this dispute is far from over.  First, as the court pointed out, plaintiffs did not allege in their complaint that the designation constitutes an unconstitutional taking under the Fifth Amendment.  Such a claim could still be presented to the Court of Federal Claims.  Second, a notice of appeal was filed just four days after the decision was issued.

 

   

U.S. Fish and Wildlife Service Lists Two Texas Minnows, Acknowledges Impacts to Water Management Likely

On August 4, 2014, the U.S. Fish and Wildlife Service (Service) announced its decision to list two small Texas minnows -- the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N. buccula) -- as endangered under the Endangered Species Act (ESA).  The two Texas minnows, which have been candidates species since 2002, measure less than 2 inches and have a life span of less than three years.  According to the announcement issued by the Service, the "two primary  factors affecting the status of the shiners are river fragmentation and alterations of the natural stream flow regime (caused by dams, groundwater withdrawal, saltcedar encroachment and drought)."  In a FAQ issued with the announcement, the Service acknowledges that as a result of the listing there will likely be impacts to water management in the area.  

In addition to listing the two minnows, the Service also announced the designation of approximately 623 miles of critical habitat in the Upper Brazos River Basin and the upland areas.  The FAQ issued with the announcement also states that the Service expects that the impacts from the critical habitat designation will be less than $84,000 per year.  

The final rule will become effective 30 days after publication.

ESA Section 9 Case Dismissed Because of Allegations re Take

Earlier this month, the United States District Court for the Northern District of California dismissed a lawsuit brought under section 9 of the Endangered Species Act (ESA) because, instead of attacking a specific project or approval, the complaint and notice of intent generally attacked all land use permit decisions by the local agency.  Under section 9 of the ESA, it is illegal for any private or public entity to "take" an endangered species. 16 U.S.C. 1538(a)(1)(B).  The term "take" has been broadly defined to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19).  The species at issue was the endangered Sonoma County distinct population segment of the California tiger salamander ("Salamander").  The complaint generally alleged that the County of Sonoma had engaged in "take" by issuing permits within 1.3 miles of a known Salamander breeding site, a known occurrence, and/or within critical habitat corridors.  Without a specific project or approval to review, the court found that the "action would devolve into a speculative exercise," and therefore the project was simply "not yet ripe for adjudication."  California River Watch v. County of Sonoma, No. C 14-00217 (N.D. Cal. July 10, 2014).  In addition to finding that the matter was not ripe, the court also found that dismissal was appropriate because the 60-day notice of intent failed to comply with the ESA, as it failed to provide a specific geographic area, project or approval, and therefore "failed to provide sufficient information for the County to identify or attempt to abate the alleged violation."

      

USFWS and NMFS Issue Joint Policy Interpreting ESA Listing Criteria

Today, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service issued their final interpretation of the phrase "significant portion of its range" for the purposes of applying the Endangered Species Act (ESA).  This phrase plays a key role in the listing and delisting of species, as it appears in the ESA's definition of "endangered species" and "threatened species."  Specifically, under the ESA, an "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range[,]" and a "threatened species" is defined as "any species which is likely to become an endangered species within the foreseeable future throughout all of a significant portion of its range."  16 U.S.C. 1532(6) & (20).  The accompanying announcement issued by USFWS states that under the new policy, which does not go into effect until July 31, 2014, a species could be listed "as threatened or endangered throughout its range if the best available science shows that the species is threatened or endangered in a vital portion of that range, the loss of which would put the species as a whole at risk of extinction."  The announcement also states that the "policy clarifies a species' 'range' as the geographical area within which that species is found at the time of the listing determination."  The website for the USFWS states that during the interim period between now and the policy's July 31 effective date, the USFWS "will consider the interpretations and principles in [the] final policy as nonbinding guidance in making individual listing determinations."

D.C. District Court Holds Pre-Violation Notice Ineffective

On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the U.S. Fish & Wildlife Service (Service) failed to timely act on a number of listing petitions because the violations stated in the pre-litigation notice and complaint did not occur until after the litigation was filed.  Friends of Animals v. Ashe, No. 13-1607 (D.D.C. June 23, 2014).  

Under the ESA, after a listing petition has been filed, the Service is obligated to issue a finding stating "whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted."  16 U.S.C. 1533(b)(3)(A).  The ESA requires the Service, to "the maximum extent practicable," to issue this finding "within 90 days after receiving the petition[.]"  Because of this generally applicable 90-day deadline, this finding is often referred to as the 90-day finding.  Further, if the Service finds that a listing "may be warranted," the ESA requires that the Service issue a second finding within 12 months concluding that: (1) the petitioned action is not warranted; (2) the petitioned action is warranted; or (3) the petitioned action is warranted but precluded by higher priority species.  16 U.S.C. 1533(b)(3)(B).  Because the Service is given a strict 12 months to issue this second finding, this finding is often referred to as the 12-month finding. 

If the Service fails to comply with these statutory deadlines, a citizen suit may be filed in federal court.  16 U.S.C. 1540(g)(1)(C).  However, at least 60 days before filing such a lawsuit, a citizen plaintiff must serve the Secretary of the Department of Interior with a notice of intent to sue stating, among other things, the alleged violation(s).  16 U.S.C. 1540(g)(2)(C). 

In the case at issue, in August 2013, Plaintiff Friends of Animals (Plaintiff) sent the Service a pre-litigation notice stating that the Service had failed to timely issue a 90-day finding and 12-month finding for 39 separate species.  In October 2013, more than 60-days after service of the notice, Plaintiff filed suit alleging that the Service had failed to timely issue 12-month findings for all 39 species.  Thereafter, the Service moved to dismiss the complaint for lack of jurisdiction.

Strictly applying the ESA's pre-litigation notice requirement, the district court granted the motion to dismiss.  The court explained that under the ESA, notice of the "statutory violation" must be served 60 days prior to the commencement of a lawsuit.  In this case, however, the basis for the litigation, the failure to issue timely 12-month findings, did not exist when the notice was served.  The court explained that as of the date of the notice, the Service had not issued 90-day findings for any of the 39 species.  Thus, as the deadline for a 12-month finding is triggered only when a 90-day finding has been issued, the Service as a matter of law could not have failed to timely issue a 12-month finding as of the date of the notice.   

In an attempt to avoid dismissal, Plaintiff argued that its technical failure should not preclude the court from proceeding to the merits, because 90-day findings had since been issued for all 39 species, and it had been more than a year since the last 90-day finding was issued and the Service had not issued a single 12-month finding.  The court, however, rejected this argument, noting that the lower courts have consistently dismissed "ESA citizen suits for failure to strictly comply with the 60-day notice and delay provision," and that as such Plaintiff's "pre-violation notice" was simply inadequate.   

Rose That Calls California and Nevada Home Listed as Threatened

On June 2, 2014, the U.S. Fish and Wildlife Service (Service) announced the listing of the Webber's ivesia (Ivesia webberi) as a threatened species under the Endangered Species Act, and the designation of 2,170 acres of critical habitat in Plumas, Lassen, and Sierra Counties in northeastern California, and in Washoe and Douglas Counties in northwestern Nevada.  As stated in a related announcement issued by the Service, the rule listing the Webber's ivesia and designating critical habitat will not become effective until July 3, 2014.  The identified threats to the species include "urban development, authorized and unauthorized road use, OHVs and recreation use, livestock grazing and trampling, wildfire and suppression activities, displacement by nonnative, invasive plant species, and inadequacy of existing regulatory mechanisms."

House Approves Bill Requiring the Executive Branch to Report Fees Awarded To Prevailing Parties

Yesterday, the House of Representatives approved the Open Book on Equal Access to Justice Act (H.R. 2919), which would amend existing law to require the Executive Branch to provide an annual report to Congress on the amount of fees and other expenses awarded to prevailing parties, other than the United States, in certain administrative proceedings and civil suits, including certain lawsuits under the Endangered Species Act and other environmental statutes.  The Act would require the report to account for all payments of fees and other expenses awarded made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to nondisclosure provisions.  The Act would also require the United States to create and maintain online a searchable database containing information related to the civil action or administrative proceeding and the award.  The bipartisan bill, which was approved by the House Judiciary Committee on February 5, 2014, was approved by the House after 40 minutes of debate. 

U.S. Fish and Wildlife Service Declines to Reclassify California Plant

On May 2, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding concluding that, based on the best available scientific and commercial information, the endangered Lane Mountain milk-vetch (Astragalus jaegerianus), a plant found in a small portion of the central Mojave Desert in San Bernardino County, should not be reclassified as threatened under the Endangered Species Act.  The Service found that the "primary threats to Lane Mountain milk-vetch are habitat loss and disturbance from military training, OHV use, recreational mining, and the effects of climate change."  The Service also found that, as these significant threats extend throughout the plant's entire range, the Lane Mountain milk-vetch is in danger of extinction.  The Service's 12-month finding was issued pursuant to a settlement agreement between the Service and the Pacific Legal Foundation.

 

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