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 Proposes Credit Program for At-Risk Species

The U.S. Fish and Wildlife Service (Service) recently announced a proposed policy establishing credits for voluntary prelisting conservation actions for imperiled species. The policy is intended to establish an additional measure for encouraging and awarding voluntary actions to protect species that may be listed as endangered or threatened under the Endangered Species Act (ESA).

The new policy would apply in two possible situations. For non-federal actions that may harm listed species and require a take permit under section 10 of the ESA, the policy would credit actions taken prior to listing and apply those credits towards mitigation to offset impacts that would occur after the species is listed. For federal agencies, credits from prelisting conservation actions would be used to offset adverse effects of the agency’s proposed action.

To be eligible for credits, conservation actions must be part of a state-administered program for conservation of the species. The policy is intended to engage states in designing and implementing programs to encourage voluntary prelisting conservation actions. All actions to be credited must occur before the species is listed under the ESA, and they cannot be required pursuant to any federal, state, or local regulation.

According to the Service, the policy enables any harm to a listed species to be offset by benefits provided prior to the listing of the species. Additionally, prelisting conservation actions could be combined with additional mitigation to offset any harm to the species. The Service has yet to define the metrics for measuring either the harm or benefit to the species.

States may choose to work with the Service to administer the prelisting conservation programs. Under the policy, the Service will assist states as needed in developing conservation plans, and in overseeing implementation and operation of the voluntary actions.
 

U.S. Fish and Wildlife Service Considers Listing the Humboldt Marten

 The U.S. Fish and Wildlife Service (Service) recently announced that it will be conducting a 12-month status review for the Humboldt marten (Martes americana humboldtensis) to determine whether to list the species as threatened or endangered under the Endangered Species Act (ESA). The Service’s notice (pdf) requests information on the Humboldt marten, and notes the uncertainty surrounding the subspecies’ taxonomic classification. The classification of martens has evolved dramatically over the years, and ongoing genetic research indicates uncertainty in the classifications in the Pacific marten subspecies. The purpose of the 12-month status review is to conduct an evaluation of a distinct population segment (DPS) of Pacific martens to determine whether or not the marten population in coastal northern California and Oregon should receive ESA protection.

The Humboldt marten is a mid-sized carnivore in the weasel family. Individuals are about the size of a common house cat and have a long, slender body with relatively large rounded ears, a triangular face, short limbs, and a bushy tail. The range of the Humboldt marten has shrunk dramatically in recent decades due to the fur trade and habitat loss from logging. While martens are generally common in most of their range in North America, the Humboldt marten was thought to be extinct until an individual was sighted in 1996.

The Center for Biological Diversity and Environmental Protection Information Center originally submitted a petition to list the Humboldt marten on September 28, 2010. The Service published its 90-day finding on the petition on January 12, 2012, which concluded that the petition presented substantial scientific and commercial information indicating that listing may be warranted.

U.S. Fish and Wildlife Service Ordered to Complete Recovery Plan for Canada Lynx

Recently, the United States District Court for the District of Montana ordered (pdf) the U.S. Fish and Wildlife Service (Service) to develop a timeline for completion of recovery planning for the Canada lynx (Lynx canadensis). The court determined that the Service’s purported justifications for not developing and implementing a recovery plan for the species were insufficient in light of its statutory duty and its own internal guidelines setting forth a timetable for recovery planning.

In Friends of the Wild Swan v. Ashe, 2014 U.S. Dist. LEXIS 65378 (D. Mont. 2014), plaintiffs alleged that the Service had unreasonably delayed preparing a recovery plan for the Canada lynx and sought a court order compelling the Service to prepare a plan in accordance with a specific deadline. The Endangered Species Act (ESA) requires that the Service designate critical habitat for any species listed as threatened or endangered, concurrent with listing. Further, it requires the Service to develop and implement a recovery plan for any listed species, but, notably, it does not provide a timetable for doing so. The Service listed the Canada lynx as threatened under the ESA in 2000, but did not designate critical habitat at that time or develop a recovery plan. The Service contended that due to the species’ low priority and the Service’s limited resources, recovery planning could not be completed until publication of the final rule designating the lynx’s critical habitat, which according to the Service has been “dogged by litigation at every turn.”

After rejecting the Service’s challenge to plaintiffs’ standing, the court explained that because the ESA does not specify a standard of review, judicial review is conducted under the Administrative Procedure Act (APA), which permits a reviewing court to compel agency action that is “unreasonably delayed.” Further, because the ESA does not supply a timetable for preparation and implementation of a recovery plan, the court found that the Service’s delay in developing a recovery plan should be governed by the “rule of reason.”

Though not binding on the Service, the court used the Service’s own guidelines to evaluate the reasonableness of the Service’s delay. These guidelines provide that a recovery outline for a species be submitted to the Regional Office within 60 days of listing; that the outline be approved within 90 days of listing; that a draft recovery plan be prepared for public comments and peer review within 18 months of listing; and that a final recovery plan be issued within 30 months of listing. Based on these guidelines, a recovery plan for the Canada lynx should have been in place in September 2002.

The court dismissed the Service’s argument that development of a recovery plan is necessarily contingent on publication of a final rule designating critical habitat for the species, and that the delay is not unreasonable because the species is a low priority with a high potential for recovery and low degree of threat. It stated that under this approach a recovery plan for the lynx could potentially never be developed, and the Service “cannot delay its obligation indefinitely.”

The court also rejected the Service’s longstanding claim that it had limited financial resources to both finalize the species’ critical habitat and begin recovery planning, stating that such justification was no longer persuasive in light of the extended passage of time (over a decade). The court then found that as “the Service has repeatedly stated that it will initiate recovery planning for the lynx,” and that, based on its most recent self-declared timeline of initiating the recovery planning process by close of 2014, “requiring completion of recovery planning on its represented timeframe will not bias its ability to balance competing interests.” The court thus held that the Service was bound by a deadline for recovery planning “unless it finds and documents that such a plan will not promote conservation of the lynx.” The court ordered the Service to file a proposed schedule for completion of recovery planning within 30 days of its decision.

The court’s decision in this case is notable because it diverges from other district court decisions in the Ninth Circuit regarding the Service’s duty to prepare and implement recovery plans for listed species, which have generally shown considerable deference to the Service’s timetables for recovery planning. For example, in Conservation Northwest v. Kempthorne, 2007 U.S. Dist. LEXIS 46089 (W.D. Wash. 2007), the court held that it did not have jurisdiction to decide whether there was an unreasonable delay in implementation of the North Cascades Grizzly Bear Recovery Plan, originally issued in 1982 and revised in 1993, because the Service’s duty to implement all terms of a recovery plan in a “timely manner” is a discretionary one. In Center for Biological Diversity v. Bureau of Land Management, 2014 U.S. Dist. LEXIS 46994 (N.D. Cal. 2014), while the court held that the Service’s requirement to prepare a plan was mandatory, not discretionary, it also ultimately deferred to the Service’s timeline for preparing a recovery plan for the Peirson’s milk-vetch. The milk-vetch had been listed in 1998, but the Service did not anticipate finalizing a recovery plan until July 31, 2019. The court noted that it was concerned about the Service’s failure to issue a recovery plan for the species, but did not hold that the more than 20 year delay was unreasonable.

California Fish and Game Commission Delays Listing Decision for Gray Wolf

 The Los Angeles Times reports that the California Fish and Game Commission (Commission) unanimously voted to postpone a decision on whether to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA). As we previously reported, the California Department of Fish and Wildlife recommended in February 2014 that the Commission not list the gray wolf under CESA, determining that the scientific evidence does not warrant listing the species at this time. The issue arose in 2011 when a single wolf, OR-7, was spotted in California for the first time.

The five-member panel delayed the Commission’s decision for 90 days following lengthy public debate at yesterday’s hearing. The Commission will hold an additional hearing to consider the issue in June.

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.