• Posts by Brian Ferrasci-O'Malley
    Associate

    Brian Ferrasci-O’Malley's practice focuses on environmental and natural resource litigation, permitting, and review.  He assists clients in cases arising under CERCLA, MTCA, the Clean Water Act, the Clean Air Act, and the ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

On August 15, 2019, the U.S. Fish and Wildlife Service (FWS) published a series of notices in the Federal Register announcing the agency’s 12-month and 90-day findings on petitions to list a number of species under the Endangered Species Act (ESA).  Most prominently, the FWS declined to list two species commonly known as the Joshua tree (Yucca brevifolia and Yucca jaegeriana) ...

On May 22, 2019, the U.S. Fish and Wildlife Service (FWS) announced a proposal to list two intriguing North Carolina aquatic species under the Endangered Species Act (ESA). The FWS was spurred to act in part by a 2010 petition and subsequent litigation from environmental organizations to list over 400 aquatic species found in the southeastern United States. The two species the agency deems as needing protection in this proposed rule are the Carolina madtom (Noturus furiosus), a poisonous catfish, and the Neuse River waterdog (Necturus lewisi), a freshwater salamander.

The Carolina ...

On January 31, 2019, the U.S. Fish and Wildlife Service (USFWS) announced plans to amend up to 182 Endangered Species Act (ESA) recovery plans, which potentially cover over 305 animal and plant species, over the next year. These amendments will revise each recovery plan to include quantitative recovery criteria as part of the Department of the Interior’s Agency Priority Performance Goals. USFWS kicked off this 12-month push by releasing a notice of availability of 26 draft recovery plan amendments ...

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (Combs), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (Service).  As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is ...

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the ...

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and the Second Amendment, the addition of Justice Kavanaugh to the Supreme Court could also have significant effects on a range of environmental laws and regulations, including the Endangered Species Act (ESA).

One of Judge Kavanaugh’s most well-known environmental opinions is from Otay Mesa Property, L.P. v. Interior, 646 F.3d 914 (D.C. Cir. 2011). In Otay Mesa, the U.S. Fish and Wildlife Service (Service) had observed four endangered San Diego fairy shrimp (Branchinecta sandiegonensis) in one location on a dirt road on the plaintiffs’ 143-acre property. Based on that single observation, the Service designated the plaintiffs’ property as occupied habitat for purposes of its critical habitat designation under the ESA. The D.C. Circuit held that substantial evidence did not support the Service’s designation of critical habitat for the San Diego fairy shrimp. Judge Kavanaugh explained that while the Service may protect areas outside of the geographic range occupied by an ESA-protected species as essential to the species’ conservation, it had instead asserted that this was occupied habitat for the fairy shrimp. Judge Kavanaugh found that a single observation of a species did not provide sufficient evidence that the area was occupied habitat. And while the Service was under no requirement to continue looking for the endangered shrimp, Judge Kavanaugh noted that the lack of such an obligation is not the same as an authorization to act without data to support its conclusions. 646 F.3d at 918. This opinion suggests that Judge Kavanaugh is likely to narrowly interpret the provisions of the ESA.

Similarly, Justice Kavanaugh’s position on Chevron deference may have wide ranging consequences for environmental statutes, including the ESA.

Today, the U.S. Fish and Wildlife Service (Service) finalized its reclassification of the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii), a small cactus found in Texas, downlisting the species from endangered to threatened under the Endangered Species Act (ESA).

As previously reported here, the Service concluded that downlisting the cactus was warranted given an increase in the number of observed individuals. While only 200 cactuses were known when the species was listed as endangered in 1979, the Service now estimates there are more than 3,300 ...

On April 2, 2018, the U.S. Fish and Wildlife Service (Service) proposed downlisting the Hawaiian goose (Branta sandvicensis), locally known as the nene, from endangered to threatened under the Endangered Species Act (ESA).  The Service also proposed adopting a special rule pursuant to ESA section 4(d), known as a section 4(d) rule, allowing incidental take of nene for particular conservation and law enforcement functions.

The nene was federally listed as endangered in 1967, after the population fell below 30 individuals on Hawaii’s Big Island.  The Service instituted a ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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