David Miller

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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.

U.S. Fish and Wildlife Service Announces Listing of Lesser Prairie-Chicken

 Yesterday, the U.S. Fish and Wildlife Service (Service) announced (pdf) the final listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The Service identified drought and habitat fragmentation as threats to the species, and concluded the lesser prairie-chicken is likely to become endangered in the foreseeable future.

In connection with the final listing decision, the Service also announced a final special rule under section 4(d) of the ESA that will retain some degree of state responsibility for managing the lesser prairie-chicken. Over the past decade, a number of conservation programs have been implemented across the species’ five-state (Texas, New Mexico, Oklahoma, Kansas and Colorado) range, including the 2013 Western Association of Fish and Wildlife Agencies’ (WAFWA) Lesser Prairie-Chicken Range-Wide Conservation Plan. Collectively, these efforts are similar to a recovery plan. 

There had been some fear among landowners that the Service’s listing would have a severe adverse impact on the energy industry and private developers. The Service’s approach is anticipated to provide regulatory certainty for landowners and businesses enrolled in WAFWA’s range-wide conservation plan and the U.S. Department of Agriculture’s Lesser Prairie-Chicken Initiative. The special rule will allow for incidental take of the lesser prairie-chicken associated with: (1) activities conducted pursuant to WAFWA’s Lesser Prairie-Chicken Range Wide Conservation Plan; (2) conservation practices carried out in accordance with a conservation plan developed by the Natural Resources Conservation Service in connection with the Lesser Prairie-Chicken Initiative; and (3) the continuation of routine agricultural practices on existing cultivated lands.

The Service determined that listing critical habitat for the lesser prairie-chicken is prudent, but cannot be determined at this time. The Service has one year from the final listing determination to propose any critical habitat for the species.

U.S. Fish and Wildlife Service Proposes Delisting Two Death Valley Plant Species

 The U.S. Fish and Wildlife Service (Service) recently issued (pdf) a proposed rule to remove Eureka Valley evening-primrose (Oenothera avita ssp. eurekensis) and Eureka dune grass (Swallenia alexandrae) from the federal list of endangered species. The Service’s proposed rule follows its 12-month finding on the Pacific Legal Foundation’s petition to delist the species.

Eureka Valley evening-primrose and Eureka dune grass are endemic to three dune systems in the Eureka Valley, located in Inyo County, California. Eureka Valley is managed by the National Park Service (Park Service) because it is located within federally designated wilderness areas of Death Valley National Park.

At the time of listing, the primary threats to Eureka Valley evening-primrose and Eureka dune grass were identified as off-highway vehicle activity at the Eureka dunes, as well as impacts from camping associated with such off-highway activities. The Service determined that these threats have been ameliorated by Bureau of Land Management (BLM) and the Park Service actions, including habitat protections and ongoing management of off-highway activities. According to the Service, remaining potential threats, including predation, stochastic events, climate change, and competition with Russian thistle, may be causing some stress to certain populations of the species, but these potential impacts do not rise to a level that warrants listing either species as threatened.

The two species were originally listed as endangered on April 26, 1978. On May 18, 2010, Pacific Legal Foundation filed a petition requesting that the Service delist Eureka Valley evening-primrose and Eureka dune grass, based on the Service’s analysis and recommendations in its 2007 five-year status review for the species. On March 27, 2013, Pacific Legal Foundation filed a lawsuit challenging the Service’s failure to issue the required 12-month finding. The Service’s issuance of its 12-month finding came pursuant to a settlement agreement and revised court order in that litigation.


U.S. Fish and Wildlife Service To Analyze Stakeholder Plan for Lesser Prairie-Chicken

The U.S. Fish and Wildlife Service (Service) announced (pdf) that it will prepare an Environmental Impact Statement (EIS) on a proposed application for an Incidental Take Permit (ITP), including a Habitat Conservation Plan (HCP), under the Endangered Species Act (ESA). The application concerns the lesser prairie-chicken (Tympanuchus pallidicintus), which the Service has proposed to be listed as threatened under the ESA.

A group of stakeholders representing energy, agricultural, and conservation industries and organizations (Stakeholders) submitted the application. If issued, the ITP and HCP would provide sufficient “take” authorization to enable various regional construction, operation, and maintenance activities associated with multiple commercial energy facilities, agricultural activities, and conservation management activities within six states to continue in the event the Service ultimately lists the lesser prairie-chicken.

The HCP will include measures related to take avoidance, minimization of take through best management practices, and mitigation of the impacts of take through habitat preservation, restoration, and enhancement measures. The HCP’s planning area includes the occupied range of the lesser prairie-chicken in five states, including portions of New Mexico, Colorado, Kansas, Oklahoma, and Texas. It also includes areas where the species’ populations could expand with appropriate conservation initiatives, which includes portions of Nebraska.

The Service originally received a petition to list the lesser prairie-chicken in October 1995. In July 1998, the Service determined that listing the species was warranted, but precluded by other higher priority species. In December 2012, the Service published a proposed rule to list the species as threatened.

National Marine Fisheries Service Proposes Protection for Captive Killer Whale "Lolita" under Endangered Species Act

The National Marine Fisheries Service (Service) recently announced (pdf) a proposed amendment to the regulatory language of the Endangered Species Act (ESA) listing for the Southern Resident killer whale Distinct Population Segment (DPS).  The amendment would remove the language excluding captive members of the population from ESA protection. The Service’s action comes in response to a petition submitted by the People for the Ethical Treatment of Animals to include “Lolita” as a protected member of the DPS. Lolita, the sole captive member of the Southern Resident killer whale DPS, is currently precluded from receiving ESA protection.

The Southern Resident killer whale DPS was listed as endangered under the ESA in 2005. Lolita was collected from the wild in 1970. She is currently located at the Miami Seaquarium in Miami, Florida.

U.S. Fish and Wildlife Service Announces Availability of Draft Economic Analysis for Proposed Critical Habitat for Three Amphibian Species

The U.S. Fish and Wildlife Service (Service) recently released (pdf) its draft economic analysis (DEA) for its proposal to designate critical habitat for the Sierra Nevada yellow-legged frog (Rana sierrae), the northern distinct population segment of the mountain yellow-legged frog (Rana muscosa), and the Yosemite toad (Anaxyrus canorus). The proposed critical habitat designation encompasses approximately 1,831,820 acres of habitat in California.

The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the three amphibian species over the next 17 years. The DEA estimates that the costs will be between $630,000 and $1.5 million. Because 97 percent of the designated habitat would be on federal lands, these cost are primarily associated with federal agency consultations pursuant to section 7 of the Endangered Species Act (ESA) for actions such as fish stocking, water operations, grazing, and recreation.

Due to the release of the DEA, the Service also announced (pdf) that it reopened the public comment period on its April 25, 2013 proposed rule to list the Sierra Nevada yellow-legged frog and the northern distinct population of the mountain yellow-legged frog as endangered species, and the Yosemite toad as a threatened species under the ESA. It also reopened the public comment period on the proposed rule to designate critical habitat for the three species. The Service will consider any comments received or postmarked on or before March 11, 2014. The Service will hold a public hearing on the proposed rules in Sacramento, California on January 30, 2014 at 1:00 p.m. and 6:00 p.m.

U.S. Fish and Wildlife Service Denies Listing for Rare Orchid

 The U.S. Fish and Wildlife Service (Service) recently announced (pdf) the completion of its status review (pdf) of Coleman’s coralroot (Hexalectris colemanii), a species of orchid found in southeastern Arizona and southwestern New Mexico. The Service determined that listing the orchid as threatened or endangered under the Endangered Species Act (ESA) is not warranted at this time.

The Center for Biological Diversity (CBD) petitioned the Service to protect Coleman’s coralroot under the ESA in September 2010. Originally thought to be part of the Chisos coralroot, the Service recognized Coleman’s coralroot as a separate species in 2011. At that time, the species was thought to occur only in three sites in the Santa Rita and Dragoon Mountains of southern Arizona. However, as of July 2013, the species has been identified in 22 colonies across seven mountain ranges in Arizona and New Mexico.

Mining, livestock grazing, nonnative invasive plant species, wildfire, drought, and climate change were all identified by CBD as potential threats to the habitat or range of Coleman’s coralroot. The threat due to mining was of particular concern because it is a significant component of the history and economy of the southwest, including southeastern Arizona. After assessing the best available science on the magnitude and extent of these threats, the Service determined that the destruction, modification, and curtailment of the species’ habitat or range are not a threat to the species. The Service determined that, while mining operations may affect a small percentage of the species’ habitat, it and other potential threats have not resulted in measurable population declines.

House Natural Resources Committee to Hold Hearing on Department of the Interior's 2011 Endangered Species Act Settlements

On Thursday, December 12, 2013, the House Natural Resources Committee (Committee) will hold a full committee oversight hearing (pdf) titled “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies.” This hearing is part of a series of hearings announced by the Committee to review the Endangered Species Act (ESA) and conduct an assessment of the law’s strengths and weaknesses.

As we previously reported, in 2011, the U.S. Fish and Wildlife Service (Service) developed a six-year work plan that would allow it to systematically review and address more than 250 candidate species as part of a settlement agreement with WildEarth Guardians and the Center for Biological Diversity. Under the settlement agreement, the Service agreed to prioritize listing decisions for several candidate species, and the environmental groups agreed to refrain from filing actions to compel findings on new listing petitions that they submit.

Republicans have largely condemned the settlement, arguing that the “sue-and-settle” approach has led to excessive litigation that requires federal agencies to spend great time and financial resources addressing lawsuits rather than species recovery. The Service, on the other hand, regards the settlement as a success, noting that setting deadlines for final decisions on candidate species has spurred cooperation from states and private landowners in creating conservation plans that address concerns about the species without necessarily requiring the need for listings.

The Committee’s hearing will be held at 10:00 a.m. EST, in room 1324 Longworth House Office Building, Washington, DC.

Bureau of Land Management Continues to Develop a National Greater Sage-Grouse Planning Strategy

 The Bureau of Land Management (BLM) today issued (pdf) a draft Oregon Greater Sage-Grouse Land Use Plan Amendment and Environmental Impact Statement (LUP Amendment/EIS) for the Oregon Sub-Region.  Once finalized, the LUP Amendment/EIS will cover over 10 million acres of sage-grouse habitat in the species’ Oregon range.

The draft LUP Amendment/EIS is one of fifteen separate planning efforts being undertaken as part of the “National Greater Sage-Grouse Planning Strategy.”  As we previously reported, BLM has already issued the draft LUP Amendment/EIS for the Nevada and Northeast California range of the greater sage-grouse.

The draft LUP Amendment/EIS addresses key planning issues such as special status species management, energy and mineral development, lands and realty (including transmission), vegetation management, and livestock grazing.  It evaluates six alternatives, including the “preferred alternative,” or Alternative D, which includes conservation measures BLM developed with cooperating agencies.  BLM is accepting comments on the draft LUP Amendment/EIS through February 20, 2014. 

U.S. Fish and Wildlife Service Reopens Public Comment Period for Proposed Listing of Gunnison Sage-Grouse

The U.S. Fish and Wildlife Service (Service) recently announced (pdf) the reopening of the public comment periods for its January 11, 2013 proposed rules to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA) and to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah. The Service also announced that it was rescheduling two public information sessions and public hearings for the proposed rules, as well as adding a third public informational session and public hearing. These hearings will be held November 19-21, 2013 in Colorado and Utah. The public can submit comments on the proposed rules through December 2, 2013.

As we previously reported, on March 13, 2013, the Service previously extended the comment periods for the proposed rules. The prior extension was the result of several requests to extend the 60-day comment period to ensure that the public had an adequate opportunity to review and comment on the proposed rules.

U.S. Bureau of Land Management Issues Draft Proposal to Protect Nevada and Northeast California Greater Sage-Grouse

On November 1, 2013, the U.S. Bureau of Land Management (BLM), as lead agency, and the U.S. Forest Service (Service), as cooperating agency, issued the Nevada and Northeast California Greater Sage-Grouse Draft Land Use Plan Amendment and Environmental Impact Statement (EIS).  The EIS evaluates six alternatives for land use plan management amendments (LUPA) focusing on conservation measures covering approximately 17.7 million acres of land administered by BLM and the Service in Nevada and northeast California spanning 16 Nevada counties, four California counties, and one county in Idaho.  BLM prepared the EIS as part of its ongoing effort to develop a "National Greater Sage-Grouse Planning Strategy" that would stretch across 10 western states and cover the estimated 47 million acres of sage-grouse habitat under BLM control.

The EIS’s “preferred alternative” – Alternative D – would restrict some uses of managed lands, including closing such lands to motorized vehicle use in the most sensitive areas, and limiting motorized vehicles to existing routes in others. It would also close most of the federal lands to mining and solar and wind energy development. More stringent alternatives evaluated in the EIS would also foreclose cattle grazing and rights-of-way for energy transmission lines or pipelines.

The draft EIS was prepared in response to the U.S. Fish and Wildlife Service’s (FWS) determination that protection under the Endangered Species Act (ESA) for the greater sage-grouse was “warranted, but precluded.” FWS specifically identified inadequate regulatory mechanisms as a significant threat to the species. The draft EIS notes that changes in the management of greater sage-grouse habitat are necessary to avoid continued decline of the species across its range. The purpose of the LUPA is to identify and incorporate appropriate conservation measures in relevant Land Use Plans to conserve, enhance, and restore greater sage-grouse habitat by reducing, eliminating, or minimizing threats to their habitat, including threats such as wildfire, invasive species, conifer invasion, infrastructure, climate change, grazing, hard rock mining, oil and gas development, and human uses.

In 2010, the FWS issued its 12-month finding for petitions to list the greater sage-grouse as threatened or endangered under the ESA. The FWS determined that, while listing of the species was warranted, listing was precluded by higher-priority listing proposals.

BLM is accepting comments on the EIS through January 29, 2014. Representatives from BLM and the Service have stressed that elements from various alternatives may be combined in the final recommendations, which is expected to be issued next year. Following completion of the final EIS, the FWS will review the proposed actions to determine whether they are sufficient to avoid listing the greater sage-grouse as threatened or endangered under the ESA.