Paul Weiland

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Paul Weiland is the Chair of Nossaman's Environment and Land Use Practice Group. He focuses on litigation, permitting, and compliance counseling. Mr. Weiland's clients include public agencies, private developers, large landowners, and trade associations. He counsels clients regarding land use, endangered species, wetlands, water quality, air quality, climate change, green building, transportation, and hazardous substances issues.

In addition, Mr. Weiland litigates environmental and natural resources matters both at the trial court and appellate court level. His experience includes litigation involving the Administrative Procedure Act, Clean Air Act, Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act, Endangered Species Act, Federal Land Policy and Management Act, National Environmental Policy Act, National Forest Management Act, Resource Conservation and Recovery Act, and Wilderness Act.

Prior to joining Nossaman, Mr. Weiland worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice. There, he was lead counsel for the United States in a number of high profile trial and appellate cases. He assisted federal agencies in the formulation of policies and rules and has drafted comments on proposed legislation regarding the Endangered Species Act, federalism and preemption, the National Environmental Policy Act, regulatory reform, small business, defense, and transportation.

NMFS Releases Final Recovery Plan for Central Valley Salmonids

The National Marine Fisheries Service (NMFS) has released its final recovery plan for Central Valley spring-run Chinook salmon, Sacramento River winter-run Chinook salmon, and Central Valley steelhead.  The website for the recovery plan is here.  Along with the recovery plan, NMFS released a number of supporting documents on the website.  Sacramento River winter-run Chinook salmon is listed as endangered under the Endangered Species Act (ESA), and Central Valley spring-run Chinook salmon and Central Valley steelhead are listed as threatened under the ESA.

At the same time that NMFS released its recovery plan, the California Department of Fish and Wildlife released its Ecosystem Restoration Program Conservation Strategy.  The two agencies issued a joint press release regarding the Recovery Plan and Conservation Strategy available here.

Fifth Circuit Rejects Strict Liability Standard and Reverses Trial Court Decision Imposing Endangered Species Act Section 9 Liability on State Officials for Whooping Crane Deaths

In The Aransas Project v. Shaw, the Fifth Circuit reversed a lower court’s finding that the Texas Commission on Environmental Quality violated section 9 of the Endangered Species Act through its combined actions and inactions with respect to management of water diversions in the San Antonio and Guadalupe River systems. We reported on the lower court decision here. Provided the decision stands, it suggests that the standard for liability under section 9 is not a strict liability standard, but instead requires courts to assess whether take was reasonably foreseeable drawing on common law tort principles.

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California Fish and Game Commission Votes to List the Gray Wolf as Endangered

In a split decision and contrary to the recommendation of the Department of Fish and Wildlife (Department), the California Fish and Game Commission (Commission) voted to list the gray wolf (Canis lupis) as endangered. The decision was lauded by representatives of environmental groups but opposed by representatives of farming and ranching interests. It affirms the willingness of the Commission, made up of political appointees, to overrule scientific staff when making critical decisions at the juncture of science and policy.

As we reported here, four environmental groups petitioned (pdf) the Commission to list the species as endangered in 2012 after a single gray wolf crossed the border from Oregon to spend several hours in California in 2011. The last gray wolf sighting in California prior to 2011 was in 1924. The petition notes that the wolf sighted in 2011 represented “the first confirmed wolf within California in over 80 years.”

Section 2072.3 of the Fish and Game Code provides that a petition must include “information regarding the population trend, range, distribution, abundance, and life history of a species, the factors affecting the ability of the population to survive and reproduce, the degree and immediacy of the threat, the impact of existing management efforts, suggestions for future management, and the availability and sources of information.” Section 2072.7 mandates that a Departmental recommendation regarding listing must include an evaluation of these same factors. The Department issued its recommendation (pdf) on February 5, 2014, as we reported here.

In a cover memo to the recommendation, the Director noted that the petition to list the gray wolf was unique because the species was “extirpated from the state for many decades.” The Department evaluated the petition based on a species-level review of the gray wolf, rather than a narrower taxonomic unit. It concluded that “the continued existence of the gray wolf in California is not in serious danger or is threatened by any one or any combination of the following factors: (1) present or threatened modification or destruction of its habitat; (2) overexploitation; (3) predation; (4) competition; (5) disease; or (6) other natural occurrences or human-related activities.”

In rejecting the Department’s recommendation, the Commission undoubtedly drew upon information beyond that recommendation. The Los Angeles Times reported that Commission President Michael Sutton said prior to the vote: “There is no more iconic animal in the American West than this one. We owe it to them to do everything we can to help them recolonize their historic range in our state” (Los Angeles Times, June 4, 2014, Julie Cart.) But the Department concluded that there is no reliable scientific information regarding historical wolf populations in California, a conclusion consistent with the findings of the U.S. Fish and Wildlife Service in its proposed rule (pdf) to delist the species.

The Commission’s decision – assuming it stands – represents a notable step forward for the concept of rewilding, which has to date been discussed mostly in academic circles. It entails introduction of large carnivores (and other mammals) in areas where they have been extirpated. More information about the concept can be found at the website for the Rewilding Institute.

The Commission’s decision also continues a trend toward consideration of taxonomic distinctions below the species level to justify listings. The California Court of Appeal affirmed the practice in California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal. App. 4th 1535, holding that the Commission can list subgroups of a species and opining that it is reasonable for the Commission to focus on the status of the species (or subgroup) within the state, rather than throughout its range.

A consequence of this trend is that the Commission has listed species that appear to be healthy throughout much of their range, including the longfin smelt (Spirinchus thaleichthys), which occurs from Alaska to California along the Pacific coast of North America. With respect to the wolf, the Commission’s decision to list comes at a time when the U.S. Fish and Wildlife Service has already delisted the species throughout many of the lower 48 states and has issued a proposed rule to delist it throughout the remainder of them, which we reported on here.


U.S. Fish and Wildlife Service Lists Three California Amphibians

The U.S. Fish and Wildlife Service (Service) published a final rule (pdf) in the Federal Register listing the Sierra Nevada yellow-legged frog (Rana Sierrae) and the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus Canorus) as threatened.  The agency proposed listing the species on April 25, 2013, following a decade of litigation intiiated by the Center for Biological Diversity, as describe in the proposed rule.


Recent research based on mitochondrial DNA, morphological information, and acoustic studies led the Service to recognize two distinct species of mountain yellow-legged frog in the Sierra Nevada.  The Sierra Nevada yellow-legged frog occupies the western Sierra Nevada north of the Monarch Divide (in Fresno County) and the eastern Sierra Nevada (east of the crest) in Inyo and Mono Counties.  The northern DPS of the mountain yellow-legged frog occupies the western Sierra Nevada from south of the Monarch Divide in Fresno County through portions of the Kern River drainage.  The species' historical range is set out in Figure 1, in the final rule, reproduced here.


The Yosemite toad is a moderately-sized toad with a range that  is predominantly on federal land.  Its distribution extends from the Blue Lakes region north of Ebbetts Pass in Alpine County to just south of Kaiser Pass in the Evolution Lake/Darwin Canyon area in Fresno County. The species historically spanned elevations from 4,790 to 11,910 feet above sea level.


En Banc Ninth Circuit Holds ESA Consultation Requirement Applies to Renewal of Long-Term Water Contracts

In a unanimous decision, eleven active judges on the United States Court of Appeals for the Ninth Circuit held that the duty to consult under section 7(a)(2) of the Endangered Species Act (ESA) when a federal agency action may affect a listed species or designated critical habitat of such species applies to the decision of the Bureau of Reclamation (Bureau) to renew long-term contracts to provide water to non-Federal parties. The decision, which reversed prior decisions by a three-judge Ninth Circuit panel and federal district court, effectively requires the Bureau to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of contract renewals on the threatened delta smelt and to renegotiate the contracts following such consultation.

The decision has potentially far-reaching implications in California because it suggests that even those who hold long-term contracts with the United States for the provision of water or senior water rights under state law must comply with the Endangered Species Act.

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New Article Takes Stock of Federal Agency Proposal to Use Surrogates to Establish Take Limits

In an article forthcoming in the Journal of Environmental Studies and Sciences, Dr. Dennis Murphy and I examine a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to amend the existing regulations that implement the interagency consultation process set out in Section 7 of the Endangered Species Act by codifying their pre-existing practice of using surrogates to express the amount or extent of incidental take of listed species.  We describe the proposed rule, place the use of surrogates for conservation planning in historical context, and describe caselaw respecting the use of surrogates.  We go on to contend that the proposed rule leaves the process of surrogate selection and application without essential implementation details and describe five essential steps in surrogate selection and validation.

  1. Provide an explanation of the reasons why the direct assessment in the form of take of a specified number of individuals of a listed species or a proportion of the population of that species cannot be measured and assessed.
  2. Apply a structured deductive process to match a prospective surrogate with the listed species, employing available demographic and geographic information, inferences from other species, and experiences from conservation planning efforts elsewhere, which have successfully or unsuccessfully engaged surrogate approaches.
  3. Present a clear description of similarities and differences between the likely responses of the surrogate and target species to salient environmental phenomena, and identify any uncertainties that may manifest as different responses to environmental stressors.
  4. Articulate a means by which post-determination implementation and monitoring will be designed, using adaptive management to explore continuously the relationship and ecological relatedness between the surrogate and the listed species, and the responses of both to environmental stressors.
  5. Provide assurance that reinitiation of consultation will occur if it is found that the surrogate does not adequately (accurately) reflect the salient ecological responses of the listed species at any point that the incidental take statement remains in effect.

A pdf copy of the article is available here (pdf).

New article explores structured decision-making for imperiled species

In an article (pdf) forthcoming in the Journal of Environmental Studies and Sciences, Dennis Murphy and I explore the potential for adaptive management through structured decision-making to improve efforts to conserve imperiled species.  We note the many impediments to effective management, which include frequent default to best professional judgment.  We then explore the potential for adaptive management to overcome these impediments if it is implemented as a step-wise, structured approach incorporating scientific information into decision-making.  We go on to identify  five essential points of engagement where science guides adaptive management: developing conceptual models, confronting management prescriptions with available data, building quantitative models, designing monitoring schemes, and interpreting returns from monitoring.

House Passes Healthy Forests Bill that Would Amend ESA with Respect to Forest Reserve Projects

On September 20, 2013, H.R. 1526, the Restoring Healthy Forests for Healthy Communities Act (pdf), was passed by the House of Representatives by a vote of 244-173. Shortly thereafter, the bill was referred to the Senate Committee on Energy and Natural Resources. Notably, H.R. 1526 includes provisions that, for certain projects authorized under the bill, would alter the way interagency consultation is conducted under section 7(a)(2) of the Endangered Species Act (ESA) and would foreclose parties from seeking relief in federal court prior to obtaining a final, unappealable decision on the merits.

The bill was introduced in the House of Representatives by Congressman Doc Hastings (R-Wash,) and has 22 co-sponsors. Its principal stated purpose is to “restore employment and educational opportunities in, and improve the economic stability of, counties containing National Forest System land, while also reducing Forest Service management costs, by ensuring that such counties have a dependable source of revenue from National Forest System land.” Section 103(a) of the bill calls for the Secretary of Agriculture to designate Forest Reserve Revenue Areas for each unit in the National Forest System. Section 104(a) authorizes and encourages the Secretary to commence covered forest reserve projects in Forest Reserve Revenue Areas.

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Federal Wildlife Agencies Issue Proposed Rule that Would Codify Practice of Using Surrogates in Incidental Take Statements

On September 4, 2013, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the Services) issued a proposal rule to amend the regulations governing consultation under section 7 of the Endangered Species Act (ESA) that would codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion. The Services indicate that these changes are proposed “to improve the flexibility and clarify the development of incidental take statements.”

Section 7(b)(4) of the ESA provides that, where an agency action and anticipated incidental take will not violate section 7(a)(2), the apposite Service shall issue an incidental take statement that, among other things, “specifies the impact of such incidental taking on the species.” The Services acknowledge in the proposed rule the congressional preference for numerical limits with respect to individuals of the listed species. At the same time, the Services reference court decisions recognizing that in some circumstance use of surrogates, or indicators, may be acceptable as an alternative to numerical estimates of individuals. The proposed rule states that “evaluating impacts to a surrogate such as habitat, ecological conditions, or similar affected species may be the most reasonable and meaningful measure of assessing take of listed species.”

The proposed rule goes on to indicate that surrogates may be used, provided the incidental take statement (or accompanying biological opinion), “(1) Describes the causal link between the surrogate and take of the listed species; (2) describes why it is not practical to express the amount or extent of anticipated take or to monitor take-related impacts in terms of individuals of the listed species; and (3) sets a clear standard for determining when the extent of taking has been exceeded.” Interestingly, the proposed rule does not make reference to the scholarly literature on surrogates, which spans more than a quarter century. A recent, in-depth, treatment of the subject is provided by Tim Caro in Conservation by Proxy (Island Press, 2010).

The Services are accepting comments on the proposed rule until November 4, 2013.

Corps of Engineers Issues Guidance Regarding Section 7(a)(2) Consultation

On June 11, 2013, the U.S. Army Corps of Engineers issued a guidance memo (pdf) regarding its obligations under section 7 of the Endangered Species Act.  The memo focuses on the Corps’ consultation obligations under section 7(a)(2).  Notably, the Corps makes no reference to the Corps’ obligation under section 7(a)(1) to “utilize [its] authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.”

Section 7(a)(2) requires a federal action agency such as the Corps to, among other things, consult with the appropriate wildlife agency (that is, either the Fish and Wildlife Service or National Marine Fisheries Service) to ensure that any action "authorized, funded, or carried out" by the agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]."

In the context of its obligations under section 7(a)(2), the guidance interprets the scope of the “action” as well as the “environmental baseline,” which includes past and present impacts of activities other than the action.  The guidance emphasizes the need to define the action “in a precise manner, to ensure that any measures intended to minimize adverse impacts pursuant to the ESA accurately account for only those activities over which the Corps has discretion.”  With respect to existing structures that the Corps has a responsibility to maintain, the guidance states that “the how and when of the maintenance activities” may be part of the action and therefore the subject of consultation, but “the results of the maintenance” are part of the environmental baseline.

The Consultation regulations (pdf) specify that section 7 applies to “actions in which there is discretionary Federal involvement or control.”  50 C.F.R. 402.03.  In addition, the Consultation Handbook (pdf) uses an example of a dam to demonstrate that ongoing effects of an existing facility are part of the environmental baseline but, for example, the addition of a turbine to that dam is an action subject to section 7(a)(2).  Consultation Handbook, p. 4-28.  The discussion of maintenance of existing facilities in the guidance constitutes further interpretation of the regulatory regime rather than a restatement of existing regulations or guidance.

The guidance also discusses the formulation of reasonable and prudent alternatives (RPAs).  RPAs only need be developed when a wildlife agency has opined that the action is likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of designated critical habitat.  The guidance emphasizes that an RPA is a suggestion or recommendation and not legally binding on the Corps.  It goes on to state that it is essential that the Corps work closely with the pertinent wildlife agency to ensure the RPA “can actually be implemented by the Corps within our existing legal, economic, and practical limitations.”

The Consultation Handbook indicates that the wildlife agencies “are committed to working closely with the action agencies and applicants in developing reasonable and prudent alternatives.”  Consultation Handbook, p. 4-44.  In the guidance, the Corps emphasizes that it has unique expertise on the requisite issues of whether the RPA is consistent with the purpose of the action, can be implemented consistent with the scope of the Corps’ jurisdiction, and is economically and technically feasible.  The Corps further states that the law recognizes deference is owed to the Corp with respect to these matters.

While it is within the purview of the Corps to issue guidance regarding the consultation process, it would be preferable for the Administration to propose adjustments to the existing regulatory scheme that apply across the board to further the consistent application of the Act, improve upon the efficiency with which it is presently administered, better integrate science into decision-making in the context of consultation, and allow for notice and comment to engage interested parties and promote transparency in decision-making.