Posts in Legal.

On August 6, 2019, the U.S. Fish and Wildlife Service (FWS) published a 90-day finding that listing the Yellowstone Park bison (Bison bison bison) under the Endangered Species Act is not warranted. FWS also found that listing the Mojave poppy bee (Perdita meconis) and revising the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) may be warranted ...

The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA).  On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States ...

The U.S. Fish & Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach ...

On April 23, 2019, the U.S. Court of Appeals for the Ninth Circuit found that environmental groups have standing to challenge the federal government’s killing of gray wolves in Idaho without conducting additional analysis under the National Environmental Policy Act (NEPA). Western Watersheds Project et al. v. Grimm, No. 18-35075 (9th Cir. 2019).

Environmental groups brought an action against the U.S. Department of Agriculture Wildlife Services (Wildlife Services), alleging that NEPA requires Wildlife Services to prepare an Environmental Impact Statement and ...

On March 15, 2019, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Wildlife.  As we reported here, the Service announced its intention to issue the proposed rule earlier this month.  According to the Service, the species’ population has rebounded considerably since it was originally listed in 1978, when the population estimate was approximately 1,000 individuals.  Now, the Service estimates there is a Great Lakes meta-population with approximately 4,400 individuals, along with an ...

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On January 28, 2019, the Superior Court for San Diego County upheld the California Fish and Game Commission’s (Commission) 2015 decision to list the gray wolf (canis lupus) under the California Endangered Species Act (CESA). (Cal. Cattlemen’s Assn. v. Cal. Fish & Game Com. (Super. Ct. San Diego County, 2019, No. 37-2017-00003866-CU-MC-CTL).)

CESA defines an endangered species as a native species or subspecies of bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or ...

Nossaman’s Environmental Practice attorneys will be off to a great start in 2019 presenting at many key events around the U.S. focused on endangered species and environmental issues.

First, on January 10th, Austin-based Environment & Land Use Partner Brooke Wahlberg will speak at the Texas Public Policy Foundation’s 2019 Policy Orientation in Austin.  Brooke’s presentation is entitled Frogs or Freedom:  Are New Limitations Coming for the Endangered Species Act?  Policy Orientation is the premier gathering for all Americans interested in the future of the Lone Star State—and the country.  At Policy Orientation, scholars ...

On December, 10, 2018, the United States Supreme Court granted a petition for writ of certiorari in Kisor  v. Wilkie (No. 18-15), which raises the issue of whether Auer deference should be overruled.  Auer deference (also known as Seminole Rock deference) requires courts to defer to an agency's reasonable interpretation of its own ambiguous regulations.  Auer deference is similar to Chevron deference, which requires courts to defer to an agency's reasonable interpretation of ambiguous statutes.  As this blog has noted, agency deference has been in the spotlight recently ...

On November 27, 2018, the U.S. Supreme Court ruled that an area is eligible to be designated as critical habitat under the Endangered Species Act (ESA) only if the area is habitat for the relevant threatened or endangered species.  Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71.  The Court vacated the U.S. Court of Appeals for the Fifth Circuit’s decision, which held that the ESA has no habitability requirement, and remanded the case to the Fifth Circuit to consider the meaning of habitat under the ESA.  Additionally, the Court held that a decision by the U.S. Fish and ...

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 ...

On October 1, 2018, the U.S. Supreme Court heard oral argument in the first case of its new term, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71. The case concerns the designation of critical habitat under the Endangered Species Act (ESA) for the dusky gopher frog (Rana sevosa) in an area that is not currently capable of sustaining a frog population. The central issue in the appeal is whether an area that currently does not possess some of the characteristics deemed essential for the frog’s survival may nevertheless be designated as unoccupied critical habitat for ...

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The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA):

  • In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis). The court held that the Service violated the ESA when it delisted the Greater Yellowstone grizzly distinct population segment (DPS) without any analysis of ...
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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 ...

Posted in Legal

On September 4, 2018, the Center for Biological Diversity filed a lawsuit under the federal Freedom of Information Act against the U.S. Fish and Wildlife Service (Service).  The lawsuit alleges that the Service has used irresponsible scientific methods while conducting its review of the endangered status for the American burying beetle (Nicrophorus americanus) pursuant to the Endangered Species Act (ESA).  The lawsuit was triggered, in part, by a letter to the Service authored by one of the scientists who initially participated in the Service’s risk assessment for the beetle ...

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The U.S. District Court for the District of New Mexico granted New Mexico’s motion for summary judgment in a case brought by the Humane Society seeking to invalidate State trapping regulations related to cougars (Puma concolor).  Plaintiffs argued that the regulations, which amended existing regulations that authorize trapping of cougars, violate the Endangered Species Act’s prohibition on take of protected species.  Plaintiffs reasoned that the amended regulations would inevitably cause the take of listed Mexican wolves (Canis lupus baileyi) since cougars and wolves ...

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.

In late May 2018, the Klamath Tribes filed a complaint in the United States District Court for the Northern District of California seeking to shut down the Bureau of Reclamation’s Klamath Irrigation Project, which supplies water to thousands of family farms in northern California and southern Oregon. The gravamen of the Tribes’ complaint is that two fish – the Lost River sucker and shortnose sucker – are in dire straits and threatened with extinction by diversion of water from Upper Klamath Lake to support farming.  On the heels of filing their complaint, the Tribes filed a ...

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On April 2, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a district court order directing that the National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers (Corps) and U.S. Bureau of Reclamation (Bureau) (collectively, the Federal Agencies) conduct spill operations and fish monitoring at dams and related facilities in the Federal Columbia River Power System (FCRPS).  The appeal was the latest development in a long-running dispute regarding salmon and steelhead species listed under the Endangered Species Act (ESA) that are impacted by FCRPS ...

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In Friends of the River v. National Marine Fisheries Service, the U.S. District Court for the Eastern District of California rejected challenges to Army Corps of Engineers and National Marine Fisheries Service decisions regarding the impact of dams, hydropower facilities, and water diversions along the Yuba River on listed fish species, the spring-run Chinook salmon (Oncorhynchus tshawytscha), the Central Valley steelhead (Oncorhynchus mykiss), and the North American green sturgeon (Acipenser medirostris).  In so doing, the court addressed a number of issues that may arise ...

On March 16, 2018, Nossaman Environment and Land Use Law Partner Svend Brandt-Erichsen will be serving as a member of the faculty for The Seminar Group’s CLE and Foresters program Pacific Northwest Timberlands Management: Regulations, Litigation, and Business Considerations. 

The full conference, held from March 15-16, 2018, at the Portland, Oregon World Trade Center, will also be available via live webcast and on demand following the live presentation.  Mr. Brandt-Erichsen’s presentation, entitled Practice Pointers for Energy Projects on Timberlands, will take place at 2:30 p.m. PT and will cover:  energy project permitting needs and timelines; potential wildlife impacts and related mitigation needs; and providing construction access and access during the project’s operating life.

Additional topics to be addressed at the conference include:

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) that the U.S. Fish and Wildlife Service’s (Service) permit allowing take of the barred owl (Strix varia) to protect the threatened Northern spotted owl (Strix occidentalis caurina) did not violate the Migratory Bird Treaty Act (MBTA).  The U.S. District Court for the District of Oregon held that nothing in the MBTA limits take of a species for scientific purposes to only those situations where the research is aimed at conservation of the species taken.

The case arose from the Service’s 2008 Recovery ...

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On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit partially reversed and remanded a decision by the United States District Court for the District of Hawaii, delaying if not derailing an expansion in shallow-set longline swordfish fisheries.  Environmental groups brought claims against the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and the National Environmental ...

On May 8, 2017, the U.S. District Court for the Northern District of California granted, in part, a motion for summary judgment brought by plaintiffs in a suit challenging the U.S. Environmental Protection Agency’s (EPA) approval of the registration and use of 73 pesticides containing the active ingredients clothianidin and thiamethoxam.  See Ellis v. Housenger, Case No. 13-cv-01266-MMC, 2017 U.S. Dist. LEXIS 70107 (N.D. Cal. May 8, 2017).  Plaintiffs, a collection of individuals and a number of environmental and advocacy groups, alleged that EPA’s decision to allow ...

On March 29, 2017, the U.S. Court of Appeals for the Tenth Circuit held (PDF) that Congress has authority under the Commerce Clause to regulate the take of the Utah prairie dog (Cynomys parvidens).  Because Congress has this authority, it could authorize the U.S. Fish and Wildlife Service (Service) to do the same.

The Utah prairie dog lives only in Utah.  Approximately 70 percent of the species’ population is on nonfederal land.  It was originally listed as an endangered species under the Endangered Species Act (ESA) in 1973, but was reclassified as threatened in 1984.  At the time it was ...

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Posted in Legal

Pending before the U.S. Court of Appeals for the Tenth Circuit is the U.S. Fish and Wildlife Service’s (Service) appeal from a district court decision enjoining the Service from releasing Mexican wolves into New Mexico without the requisite state permits. In June 2016, the New Mexico Department of Game and Fish (Department) challenged the Service’s intended release of Mexican wolves into an experimental population within the state, without first obtaining the required permits from the Department.  New Mexico moved for a preliminary injunction, which the U.S. District Court ...

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The election of Donald Trump as President, together with Republican majorities in the House and Senate, is likely to lead to important policy changes across a range of issues. While administration of the Endangered Species Act and other federal wildlife laws has not been high profile during the election season, it is an issue area in which we are likely to see big changes.  The five key issues are as follows:

Department heads.  There will be a clean slate of Department heads, including new Secretaries of Commerce and the Interior.  Rumored candidates for Commerce include Chris Christie ...

On August 15, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision granting summary judgment to the Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service (USFWS) on the issue of whether an incidental take statement is required for plant species.  In Center for Biological Diversity v. Bureau of Land Management, No. 14-15836, 2016 U.S. App. LEXIS 14949, the Center for Biological Diversity (CBD) challenged BLM’s adoption of a Recreational Area Management Plan (Plan) for off-road vehicles in the Imperial Sand Dunes Special Recreation ...

In a 2-1 decision, the United States Court of Appeals for the Fifth Circuit rejected challenges to the final rule designating critical habitat for the dusky gopher frog (Rana sevosa) under the Endangered Species Act (ESA) and National Environmental Policy Act.  Markle Interests, L.L.C. v. U.S. Fish and Wildlife Service, No. 14-31008 (5th Cir. June 30, 2016).  The decision is remarkable because it upholds the determination by the U.S. Fish and Wildlife Service (FWS) to designate areas as critical habitat that are not currently habitable by the frog and have not been shown likely to be ...

On November 30, 2015, the California Supreme Court issued its much-anticipated decision in Center for Biological Diversity v. California Department of Fish & Wildlife, Case No. S217763 (Nov. 30, 2015).  The decision comes at the conclusion of a nearly five-year legal battle over the California Department of Fish and Wildlife’s (CDFW) approval of an environmental impact report (EIR) for the Newhall Ranch development project (Newhall Ranch) in Los Angeles County.  Newhall Ranch was approved as a mixed-use development on nearly 12,000 acres of land along the Santa Clarita River.  ...

On September 14, 2015, the U.S. District Court for the Eastern District of California granted the state and federal defendants’ motion to dismiss for lack of subject matter jurisdiction.  Center for Environmental Science, Accuracy & Reliability (CESAR) v. Cowin, No. 1:15-cv-00884 (pdf). Plaintiff CESAR claimed that the construction and operation of an emergency drought salinity barrier (Project) in the Sacramento-San Joaquin River Delta—which is designated as critical habitat for the threatened delta smelt (Hypomesus transpacificus)—violates the section 9 ...

In Building Industry Association of the Bay Area v. U.S. Department of Commerce, a decision with significant implications for property owners, the building industry, and the development community at large, the U.S. Court of Appeals for the Ninth Circuit rejected various challenges to the National Marine Fisheries Service’s (NMFS) critical habitat designation for the southern distinct population segment of North American green sturgeon (Acipenser medirostris), holding that (1) while NMFS must consider the economic impacts of designating areas as critical habitat, NMFS is ...

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On June 18, 2015, the U.S. District Court for the Eastern District of California denied a motion for a temporary restraining order and preliminary injunction, finding the plaintiff failed to establish that an emergency salinity barrier would imminently harm species listed under the Endangered Species Act (ESA).  Center for Environmental Science, Accuracy & Reliability (CESAR) v. Cowin, No. 1:15-cv-00884-LJO-BAM (E.D. Cal Jun. 18, 2015) (pdf).

CESAR filed an action against the California Department of Water Resources (DWR) and the U.S. Fish and Wildlife Service (Service) on ...

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On June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit upheld the Bureau of Safety and Environmental Enforcement’s (Bureau) approval of oil spill response plans (OSRPs) relating to oil leases in the Beaufort and Chuckchi seas on Alaska’s Arctic coast.   Alaska Wilderness League v. Jewell, No. 13-35866 (9th Cir. June 11, 2015).  Among other things, environmental groups alleged that the Bureau violated the Endangered Species Act (ESA) by failing to consult regarding the impacts of the OSRPs on endangered species.  The Bureau argued it was not required to consult ...

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Posted in Legal

Nossaman is pleased to announce that it has reinforced its nationally renowned endangered species practice by adding a team of attorneys, led by Alan Glen and Steve Quarles, that also includes J.B. Ruhl, Brooke Wahlberg, Rebecca Barho, and Sarah Wells.  More details are provided in this press release.

In a three-page memorandum decision, the United States Court of Appeals for the Ninth Circuit dismissed Wild Equity and other groups' appeal from a lower court decision, dismissing as moot a lawsuit alleging that the City and County of San Francisco ("San Francisco") violated the Endangered Species Act’s take prohibition as a consequence of its continuing operations of the Sharp Park Golf Course. (2015 U.S. App. LEXIS 4854 [pdf].)

The lower court dismissed the action on the grounds that the Fish and Wildlife Service issued a biological opinion and incidental take statement ...

On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court.  (A short discussion of the history leading up to these settlements can be found here and here.) 

The Safari Club asserted that it had a procedural ...

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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