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.


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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Calling on The "God Squad"

As reported by Kristi Pihl of the Tri-City Herald earlier this week, the Columbia-Snake Irrigators Association has requested that the Governors of Washington, Oregon, and Idaho proceed through the "God Squad" process under the federal Endangered Species Act (ESA) to seek to exempt those who operate on the rivers from having to provide any further mitigation for the local salmon and steelhead populations. 

In the 1979 amendments to the ESA, Congress created the Endangered Species Act Committee (aka, the "God Squad").  The God Squad has the authority to exempt an agency action from the requirements of section 7(a)(2) of the ESA if the God Squad makes certain determinations.  The God Squad is composed of seven members:  the Secretary of Agriculture, Secretary of the Army, Chairman of the Council of Economic Advisors, Administrator of the Environmental Protection Agency, Secretary of the Interior, Administrator of the National Oceanic and Atmospheric Administration, and one individual from the affected State, as determined by the Secretary of the Interior and appointed by the President.  The God Squad process is initiated when a Federal agency, a Governor of the State in which an agency action will occur, or in certain circumstances, a permit or license applicant, submits an application to the Secretary of Commerce or Secretary of the Interior (the recipient of the application depends upon which species is being impacted).  In order for the exemption to be granted, five out of the seven members of the God Squad must vote in favor of the exemption.

As stated in the report by Kristi Pihl, the request was prompted by a notice of intent to sue sent to the Bonneville Power Administration alleging that the company had failed to comply with the ESA.

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.