Robert Thornton

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Robert Thornton is one of the foremost natural resources and Endangered Species Act lawyers in the country. He has represented landowners, resource developers and public agencies on high profile matters, successfully defending over $5 billion in regional transportation improvements and developing regional conservation plans that now protect hundreds of thousands of acres.

Over three decades, Mr. Thornton has demonstrated his ability to use innovative strategies - such as habitat conservation plans (HCPs) - to ensure successful project delivery. His workRobert Thornton is one of the foremost natural resources and Endangered Species Act lawyers in the country. He has represented landowners, resource developers and public agencies on high profile matters, successfully defending over $5 billion in regional transportation improvements and developing regional conservation plans that now protect hundreds of thousands of acres.Over three decades, Mr. Thornton has demonstrated his ability to use innovative strategies - such as habitat conservation plans (HCPs) - to ensure successful project delivery. His work is well respected by his colleagues and clients who have ranked him among the nation's top lawyers. Mr. Thornton has been ranked as one of the nation's top 10 environmental lawyers by United States Lawyer Rankings from 2006 through 2010.


EPA Not Required to Consult on Air Quality Regulation Regarding Four Corners Power Plant

On July 23, 2014, the United States Court of Appeals for the Tenth Circuit held that the U.S. Environmental Protection Agency (EPA) was not required to consult with the U.S. Fish and Wildlife Service regarding potential endangered species impacts of air quality regulations designed to reduce visual impacts of the Four Corners Power Plant on the Grand Canyon and other national parks.  WildEarth Guardians v. EPA, 2014 U.S.App.LEXIS 13968.  The court concluded that the EPA decision not to regulate air pollutants with potential to impact endangered fish was not an “action” subject to the consultation requirements of section 7 of the Endangered Species Act (ESA).  The decision suggests that federal agencies may avoid ESA consultation obligations by restricting the scope of federal agency actions.

EPA adopted a federal Clean Air Act implementation plan for the power plant in order to reduce haze in the Grand Canyon, Mesa Verde and Arches National Parks.  The EPA plan regulated oxides of nitrogen and particulate matter – two pollutants contributing to haze in the national parks.  EPA elected not to require the power plant to further reduce emissions of mercury and selenium.  Plaintiffs alleged that mercury and selenium emissions from the plant were having an adverse impact on endangered fish in a river close to the plant.  Plaintiffs claimed that EPA had discretion to impose additional restrictions on mercury and selenium emissions in the Clean Air Act implementation plan.

Relying on National Environmental Policy Act and ESA precedent that federal agency inaction does not constitute “action”, the court reasoned that the ESA consultation obligation “cannot be invoked by trying to piggyback nonaction on an agency action by claiming that the nonaction is really part of a broader action.”  The court concluded that the EPA’s consultation obligation was bounded by EPA’s limits on the scope of the Clear Air Act plan to the regulation of pollutants causing haze in the national parks.  “[T]he possibility that the EPA would have discretion in some other regulatory proceeding to directly regulate mercury and selenium did not impose a duty to consult under the ESA.” 

Proposed Critical Habitat Rules Expand Reach of Critical Habitat Protections Under the Endangered Species Act

On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service proposed two important new rules (50 CFR Part 402 and 50 CFR Part 424) implementing the critical habitat provisions of the Endangered Species Act (ESA).  The proposed rules expand the regulatory definition of “critical habitat” and “adverse modification” – key ESA terms governing federal agency actions on tens of millions of acres of public and private land throughout the nation.  The federal wildlife agencies also proposed a new policy governing the exclusion of areas from critical habitat based on economic and other impacts.  Collectively, the proposed rules and policy constitute the most significant regulatory interpretations of the ESA in the last two decades.  They will almost certainly trigger significant public controversy.

With limited exceptions, the ESA requires the wildlife agencies to designate critical habitat for every threatened and endangered species.  The ESA prohibits federal agency actions that “adversely modify” critical habitat.  16 U.S.C. § 1536(a)(2).  The ESA also requires the wildlife agencies to weigh and balance the economic and other impacts of designating critical habitat and authorizes the exclusion of areas from critical habitat based on these impacts.  16 U.S.C. § 1533(b)(2).  The critical habitat provisions of the ESA have stimulated a tsunami of litigation by the environmental and regulated communities resulting in the reevaluation of dozens of critical habitat designations.

Important components of the proposed rules include the following:

  1. Elimination of restrictions on the designation of critical habitat in areas that are not occupied by the species;
  2. Broad discretion to designate critical habitat in degraded and sub-optimal habitat areas and in areas that do not presently contain features essential to the conservation of the species;
  3. Interpretation of “adverse modification” to include actions that affect the value of critical habitat for the recovery of the species;
  4. Interpretation of “adverse modification” to include activities that significantly delay habitat features supporting recovery of the species; and
  5. Establishment of an “adverse modification” standard based on impacts to the conservation value of the critical habitat areas as a whole.

The proposed policy describes an approach for excluding areas from critical habitat based on economic and other impacts.  Congress amended the ESA in 1978 to authorize the agencies to exclude areas from critical habitat “if the benefits of . . . exclusion outweigh the benefits of specifying such area as part of the critical habitat.”  16 U.S.C. § 1533(b)(2).  Since 1978, the agencies’ policy governing the use of the exclusion authority has varied widely.  For many years the U.S. Fish and Wildlife Service (Service) routinely excluded tribal lands and areas within approved habitat conservation plans (HCPs), candidate conservation agreements and safe harbor agreements from critical habitat.  In recent years, however, the Service has designated critical habitat on tribal lands and within areas with approved HCPs and other conservation agreements. 

While the proposed new policy reserves significant discretion to the agencies to determine whether to include or exclude tribal lands and HCP areas from the designation of critical habitat, it also states that the agencies will give “great weight” to tribal concerns and will “generally” exclude HCP and other similar conservation agreements that meet identified criteria. 

The public comment period on the proposed rules and policy closes on July 11, 2014.

 

California Court Recognizes Conservation Exception to Fully Protected Species Law

On an issue of first impression, a California court has created a judicial exception to the “take” prohibition in the state’s fully protected species statutes.  On March 20, 2014, the California Court of Appeal held that the live trapping and translocation of a fully protected species does not constitute prohibited “take” of the species.  Center for Biological Diversity v. California Dept. of Fish and Wildlife, 2014 Cal.App. LEXIS 256 (March 20, 2014) (pdf).  The decision addresses a common conundrum in California:  whether actions to protect a species authorized by the state and federal endangered species acts are nevertheless prohibited by the state’s fully protected species law.  The decision is the latest round in the long-running battle over the development of the Newhall Ranch project in northern Los Angeles County.

As a condition of approval of its project, the landowner agreed to implement various measures to protect the unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) – a fish protected by the state and federal endangered species acts and also by the California fully protected species law.  The measures included live trapping and transplanting of the stickleback away from construction areas.  The petitioners argued that the trapping and translocation measures would necessarily result in “take” of the stickleback prohibited by the fully protected species law.

The court read the “take” prohibition in the fully protected species law in conjunction with the definition of “conservation” in the California Endangered Species Act to conclude that the measures to conserve a species, including trapping and transplanting the species, do not constitute “take” prohibited by the fully protected species law. The decision is an important interpretation of the interplay of the two state laws and should provide greater flexibility to project proponents seeking to implement measures designed to conserve a fully protected species.

Court of Appeals Upholds Polar Bear Listing Based on Climate Change Impacts

In a major victory for advocates of regulatory action to address climate change, the Court of Appeals for the District of Columbia Circuit rejected challenges to the listing of the polar bear as a threatened species.  In Re:  Polar Bear Endangered Species Listing and Section 4(d) Rule Litigation (D.C. Cir. No. 11-5219, March 1, 2013).  The court held that the decision to list the polar bear based on predicted reductions in the sea ice habitat of the polar bear as a result of climate change is reasonable and adequately supported by the record.
The polar bear listing is the first and most high profile example of the use of the Endangered Species Act to force the federal government to adopt regulations addressing climate change.  Environmental organizations have sought to list several other species under the ESA based on potential climate change impacts on the species.  The petitioners for the listing of the polar bear have indicated their intention to use the regulatory protections provided by the ESA to challenge fossil fuel development and other activities with material greenhouse gas emissions.
 
Among several other arguments, the State of Alaska and other opponents of the listing argued that the U.S. Fish and Wildlife Service (Service) improperly used determinations by the Intergovernmental Panel on Climate Change (IPCC) in the evaluation of the likelihood of survival of the polar bear.  The court concluded that while the Service relied on the IPCC climate forecasts, the Service did not bind itself to the IPCC determinations to evaluate the survival of the polar bear.

California Legislature Authorizes Take of Fully Protected Species

The California Legislature has sent to the Governor legislation authorizing the Department of Fish and Game to permit the incidental take of 36 fully protected species pursuant to a natural community conservation plan approved by the Department. (Senate Bill 618 (Wolk).) The legislation, in effect, gives fully protected species the same level of protection as is provided under the Natural Community Conservation Planning Act (“NCCP Act”) for endangered and threatened species. (Cal. Fish & Game Code § 2835.)  The legislation removes a significant regulatory barrier to the development of regional conservation plans under the NCCP Act.  The NCCP Act, enacted in the 1990s, authorizes the incidental take of species “whose conservation and management” is provided for in a conservation plan approved by the Department of Fish and Game.

Existing state law prohibits the take of any of the 36 identified “fully protected species.”  The fully protected species laws were enacted prior to the California Endangered Species Act and the federal Endangered Species Act and were intended to prohibit hunting, catching, or harvesting of specific species.  The fully protected species laws were interpreted, however, to also prohibit “take” of the species from land development, farming, ranching and other activities – even when the activities had received take permits under the state and federal endangered species laws.

The 36 fully protected species are found in many areas of California and include such species as the salt marsh harvest mouse (Reithrodontomys raviventris), brown pelican (Pelecanus occidentalis), California least tern (Sterna albifrons browni), California clapper rail (Rallus longirostris levipes), peregrine falcon (Falco peregrinus anatum), bighorn sheep (Ovis canadensis), blunt-nosed leopard lizard (Crotaphytus wislizenii silus), and the San Francisco garter snake (Thamnophis sirtalis tetrataenia). Several of the fully protected species are also protected by the federal and state endangered species laws.
 

Court Holds That Fish and Wildlife Service Is Required to Amend Recovery Plan Before Delisting Species

In a decision that underscores the regulatory importance of recovery plans, the United States District Court for the District of Columbia invalidated the delisting of the Virginia northern flying squirrel on the grounds that the delisting rule modified delisting criteria in the recovery plan for the squirrel. Friends of Blackwater v. Salazar No. 09-2122 (D.D.C. March 25, 2011). The Court concluded that the Service violated section 4(f) of the Endangered Species Act (ESA) (requiring notice and comment on recovery plans) by relying on criteria to support delisting that varied from the criteria in the adopted recovery plan.

The court rejected the Service’s argument that the recovery plan merely provided guidance and that the Service could delist a species based on the factors for listing and delisting in section 4(a) of the ESA without first amending the recovery plan. Recovery plans are often ignored by the regulated community. This decision is a reminder that recovery plans have real world consequences.

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9th Circuit Rejects Commerce Clause Challenge to Delta Smelt Biological Opinion

The Ninth Circuit Court of Appeals held that the regulation of water deliveries from the State Water Project and Central Valley Project to protect the threatened delta smelt did not violate the Commerce Clause of the United States Constitution.  San Luis & Delta-Mendota Water Authority v. Salazar, No. 10-19152 (9th Cir. March 25, 2011). 

The decision is the latest in a series of decisions by the federal appellate courts rejecting Commerce Clause challenges to the Endangered Species Act (“ESA”). The court concluded that the protection of endangered and threatened species (including wholly intrastate species such as the delta smelt) bears a substantial relation to interstate commerce. The Supreme Court has, to date, declined to review any of the ESA Commerce Clause decisions.

The Ninth Circuit, however, rejected the argument of the Fish and Wildlife Service (and the conclusion of the district court below) that the farming company plaintiffs did not have standing to bring the lawsuit. The court concluded that the companies were not required to show a threat of imminent enforcement under the ESA. The coercive ability of the Fish and Wildlife Service to enforce the ESA is sufficient to satisfy the causation element of standing. The court’s decision provides additional support for the standing of economic interests in other pending Delta lawsuits brought under the ESA.

Court Upholds Exclusion of Critical Habitat Due To Conflict With Everglades Restoration Plan

The United States District Court for the District of Columbia upheld a decision by the Fish and Wildlife Service to exclude an area from the designation of critical habitat for the endangered Cape Sable seaside sparrow in Florida.  Center For Biological Diversity v. Salazar (D.D.C. Mar. 16, 2011) (PDF).  While conceding that the excluded area was “essential” to the sparrow’s conservation, the Service decided not to designate the area as critical habitat, in part, because of the conflict between critical habitat and the Comprehensive Everglades Restoration Project. 

The court concluded that the “balance between designating a crucial swath of critical habitat for the Sparrow, a single species, and greater flexibility for restoration of the Everglades to benefit the entire ecosystem and its many inhabiting species, is left to the Secretary’s discretion.”  Slip Op. at 32.  The decision is important because it affirms the Service’s broad discretion under the ESA to weigh and balance economic and environmental costs and benefits in the designation of critical habitat.  The Service’s decision here to balance the protection of individual species with a broader ecosystem plan stands in sharp contrast to other recent decisions by the Service to designate critical habitat in areas with approved habitat conservation plans.  These other recent critical habitat decisions create a disincentive for landowners to participate in habitat conservation plans.

Supreme Court Declines to Review Endangered Species Act Economic Impact Cases

The U.S. Supreme Court has denied (pdf) two petitions that sought to have the Court resolve a Circuit split regarding the evaluation of economic impacts of critical habitat designations under the federal Endangered Species Act.  The Court’s action leaves in place two recent decisions by the United States Court of Appeals for the Ninth Circuit upholding the use of the so-called “baseline” methodology by the U.S. Fish and Wildlife Service ("Service").  Under the “baseline” methodology, the Service restricts the evaluation of economic impacts of a potential critical habitat designation to the impacts of the designation alone and does not consider the cumulative impact of the critical habitat designation and the listing of the endangered species.  Arizona Cattle Growers' Assn. v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (pdf); Home Builders Assn. of Northern California v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010) (pdf). 

In sharp contrast to the above cases, the United States Court of Appeals for the Tenth Circuit invalidated the Service’s use of the “baseline” methodology.  New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001) (pdf).  The Tenth Circuit held that the Service’s use of the “baseline” methodology rendered an economic analysis relying on the baseline approach "virtually meaningless" because it allowed the agency, in all cases, to find no economic impact to the critical habitat designation.  As a result, in states within the Tenth Circuit, the Service evaluates the “co-extensive” economic impacts of listing and the critical habitat designation.  Use of the “co-extensive” methodology typically results in much higher estimates of economic impacts.

ESA Take Prohibition Does Not Apply to Endangered Plants On Privately-Owned Wetlands

The Ninth Circuit issued a decision (PDF) recently in which it held that the removal of an endangered plant from privately-owned “waters of the United States” is not a violation of the Endangered Species Act (ESA). Section 9(a)(2)(B) of the ESA makes it unlawful to “remove and reduce to possession any [endangered species of plant] from areas under federal jurisdiction.” The court rejected plaintiffs’ argument that the term “areas under federal jurisdiction” includes areas that qualify as wetlands and other “waters of the United States” under the Clean Water Act. The decision is important because it is the first circuit court decision to interpret the jurisdictional scope of the plant protection provisions of section 9 of the ESA.

Employees of the California Department of Fish and Game identified the endangered Sebastopol meadowfoam on private land within an area determined to be an “adjacent wetland” under the federal Clean Water Act. Suspecting that the plants had been unlawfully transplanted, a Fish and Game employee removed the plants to a Fish and Game evidence locker. Plaintiffs sued the Fish and Game employees and the landowner for violating the ESA. The plaintiffs argued that the term “areas under federal jurisdiction” in section 9(a)(2) of the ESA included areas within the regulatory jurisdiction of the U.S. Army Corps of Engineers under section 404 of the Clean Water Act. The Ninth Circuit disagreed. It concluded that the term “areas under federal jurisdiction” was ambiguous, and interpreted the term “as not including all of the ‘waters of the United States’ as defined by the [Clean Water Act] and its regulations. The court acknowledged that the decision did not foreclose the possibility that the U.S. Fish and Wildlife Service might adopt some other statutory construction. In this case, the Service sided with the defendants and argued that ESA prohibition on “removing” endangered plants applies to endangered plants on federal land and on federal property interests such as conservation easements, leasehold estates, and special management areas.