Posts in Litigation.

On May 18, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the Secretary of the Department of the Interior and other federal officials in an action brought by an environmental organization concerning the possible impacts of a Nevada solar power facility on the federally listed desert tortoise (Gopherus agassizii).  The Court rejected plaintiff’s contentions that U.S. Fish and Wildlife Service (FWS) and Bureau of Land Management (BLM) approvals for the construction and operation of the project ...

On May 17, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a ruling by the U.S. District Court for the District of Montana and upheld the U.S. Forest Service’s (Forest Service) decision to construct 4.7 miles of new roads in the Kootenai National Forest. The Kootenai National Forest is managed pursuant to the Forest Service’s Kootenai National Forest Plan (Forest Plan) that includes access-related amendments prohibiting any net permanent increase[] in linear miles of total roads.  These Forest Plan access amendments incorporate a 2011 Biological Opinion and ...

Two noteworthy cases have recently been issued by the Ninth Circuit Court of Appeals and the U.S. District Court for the Northern District of California.  The two cases address: (1) the interplay between the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) and (2) the use of the deliberative process privilege to withhold potential administrative record documents in ESA litigation.

In Center for Biological Diversity v. U. S. Environmental Protection Agency, 2017 U.S. App. LEXIS 1826 (9th Cir. Feb. 2, 2017), the Ninth Circuit reversed ...

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On December 28, 2016, the U.S. Fish and Wildlife Service (Service) published a proposed rule to reclassify the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii), downlisting the species from endangered to threatened under the Endangered Species Act (ESA).  The Service concluded that, while the Cactus is not in danger of extinction, it is likely to become endangered in the foreseeable future.  This proposed rule and the accompanying 12-month finding were precipitated by the same ESA petition, citizen suit, and settlement agreement that compelled the ...

On December 15, 2016, the U.S. Fish and Wildlife Service (Service) published a proposed rule to remove the black-capped vireo (Vireo atricapilla) from the list of Endangered and Threatened Species. The Service has concluded that listing is no longer warranted due to the species’ recovery.

The vireo is a small migratory songbird that breeds and nests in south-central Oklahoma, Texas, and the northern states of Mexico, and winters in Mexico’s western coastal states. The species was initially listed as endangered in October 1987 due to various threats, including nest parasitism ...

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 ...

On June 20, 2016, the U.S. Supreme Court issued a 6-2 opinion in Encino Motorcars, LLC v. Navarro et al., holding that the U.S. Department of Labor (Labor Department) was not entitled to receive Chevron deference with respect to its 2011 regulation addressing overtime exemptions in the auto industry.  No. 15-415, slip op. (June 20, 2016).  So-called Chevron deference arose out of a 1984 Supreme Court decision holding that agency regulations receive deference where a statute is ambiguous and the agency’s interpretation is reasonable.  Chevron U.S.A. Inc. v. Natural Resource Defense ...

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After filing an appeal with the U.S. Court of Appeals for the Fifth Circuit less than two weeks prior, on May 10, 2016, the U.S. Fish and Wildlife Service (Service) filed an unopposed motion to voluntarily dismiss its appeal of the district court decision that vacated the listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA).  The U.S. District Court for the Western District of Texas, Midland Division, identified a number of errors in the Service’s evaluation of the species under the criteria laid out in the ...

On April 4, 2016, the U.S. District Court for the District of Montana vacated the U.S. Fish and Wildlife Service’s (Service) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the North American wolverine (Withdrawal).  The Withdrawal signaled a complete departure from the Service’s February 2013 proposed rule to list the wolverine as a threatened species under the Endangered Species Act (ESA).  The court’s decision is the newest chapter in what has been a contentious and storied path to a listing decision for the North American ...

On March 15, 2016, in Alaska Oil & Gas Association v. National Marine Fisheries Service, case number 4:14-cv-00029-RRB, the U.S. District Court for the District of Alaska vacated a final regulation promulgated by the National Marine Fisheries Service ("NMFS") listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act ("ESA").  The State of Alaska, North Slope Borough and the Alaska Oil ...

On February 29, 2016, the U.S. District Court for the Western District of Texas rejected the U.S. Fish and Wildlife Service's (Service) request to reinstate federal Endangered Species Act (ESA) protections for the lesser prairie chicken (Tympanuchus pallidicinctus).  Permian Basin Petrol. Ass 'n v. Dep 't of the Interior, No. 7:14-CV-50 (W.D. Tex. Feb. 29, 2016.).  In September 2015, the court ruled on a challenge brought by the Permian Basin Petroleum Association and four New Mexico counties and vacated the final rule listing the lesser prairie chicken as threatened under the ESA.  ...

On December 3, 2015, the U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Oregon’s denial of a preliminary injunction sought by environmental plaintiffs to enjoin the Douglas Fire Complex Recovery Project in Oregon’s Klamath Mountains.  Cascadia Wildlands v. Thrailkill, No. 14-35819 (9th Cir. Dec. 3, 2015).  The environmental groups asserted that the Bureau of Land Management’s (BLM) combined recovery project and logging plan to salvage acreage burned by the Douglas Complex Fire would irreparably harm the threatened ...

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 ...

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court's recent decision in Horne v. Dep't of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer's raisin crop qualified as a "clear physical taking" requiring compensation under the Fifth Amendment to the U.S ...

Whether dealing with water or with endangered species directly, there have been a number of recent developments that are worth keeping on your radar.  Below is a quick summary of some of the more significant items:

July 16, 2015 - The House of Representative, in a largely partisan vote, passed H.R. 2898, the Western Water and American Food Security Act of 2015, by a vote of  245-176.  The Act, which is intended to ease some of the effects of the unprecedented drought gripping California, requires, among other things, for the U.S. Fish and Wildlife Service, the National ...

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 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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On Tuesday, May 26, 2015, the U.S. Court of Appeals for the District of Columbia Circuit rejected (pdf) the National Association of Home Builders’ and three other associations’ (collectively, NAHB) challenge to separate settlements between the U.S. Fish and Wildlife Service (Service) and two environmental organizations. The settlements direct the Service to make listing decisions on 251 species by specified dates.  The Court of Appeals affirmed a district court’s decision that NAHB lacked standing to raise its challenge.

As we previously reported, the district court ...

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In a decision issued April 28, 2015, a U.S. District Court for the District of Columbia dismissed an action challenging the U.S. Forest Service's (Service) 2012 National Forest Planning Rule (Planning Rule).  The Service is responsible for managing all federally owned forest and range lands, as well as the species that reside on those lands, pursuant to a three-tiered system established by the Organic Administration Act (OAA), the Multiple-Use Sustained-Yield Act (MUSYA), and the National Forest Management Act (NFMA).  This three-tier system consists of: (1) a ...

On April 3, 2015, a federal district court in California put the brakes on a proposed logging project, invalidating a habitat conservation plan and incidental take permit issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 10 of the Endangered Species Act (ESA), as well as a biological opinion and incidental take statement issued by NMFS under section 7. Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic and Atmospheric Administration, Case No. 13-cv-03717 (N.D. Cal. Apr. 3, 2015) (pdf).

A project can avoid the general take ...

On April 2, 2015, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the northern long-eared bat (Myotis septentrionalis) as threatened under the Endangered Species Act (ESA).  The Service determined that there are several factors affecting the species, but none as severe and immediate to its persistence as the disease known as white-nose syndrome (WNS).  The Service found that WNS is the predominant threat to the northern long-eared bat and, in the absence of WNS, the species would not be experiencing the dramatic decline that it has since WNS emerged.

The ...

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Although there were some notable downperiods when it came to Endangered Species Act news over the past twelve months, the past few weeks have been anything but slow.  Below are a few of the more recent newsworthy items that have rolled off the presses:

December 11, 2014 - U.S. Fish and Wildlife Service issues a final rule listing the rufa red knot (Calidris canutus rufa) as a threatened species.  The rufa red knot is a migratory shorebird that breeds in the Canadian Artic, and winters in parts of the United States, the Carribean, and South America.  The final rule states that the ...

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As we reported here, on October 6, 2014, a number of public water agencies and other entities that represent agricultural and municipal water users in California filed a petition for writ of certiorari with the U.S. Supreme Court.  The petition was filed after a divided panel of the United States Court of Appeals for the Ninth Circuit issued a decision affirming a biological opinion issued by the U.S. Fish and Wildlife Service with respect to continuing operations of the federal Central Valley Project and State Water Project. The panel held that the biological opinion and ...

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On November 4th, the U.S. District Court for the District of Utah invalidated the special rule issued by the U.S. Fish and Wildlife Service (Service) regulating take of the threatened Utah prairie dog, a species that only inhabits the state of Utah.  See People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Serv., Case No. 2:13-cv-00278 (pdf) In 2012, the Service issued a revised special rule pursuant to section 4(d) of the Endangered Species Act (ESA) that authorized take of the species by permit only on agricultural lands, [private property] within [.5 ...

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On October 23rd the Federal District Court for the Western District of Washington upheld the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program’s (NFIP) compliance with a 2008 reasonable and prudent alternative (RPA) stemming from previous litigation.  The National Wildlife Federation initially challenged the program for its impacts on endangered Pacific Northwest Chinook salmon, Puget Sound steelhead, Hood Canal chum salmon, and Southern Resident killer whales in National Wildlife Federation v. Federal Emergency Management Agency, 345 ...

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Recently, two separate petitions were filed with the U.S. Supreme Court seeking review of the Ninth Circuit’s decision in San Luis and Delta Mendota Water Authority v. Jewell, a case involving a challenge to the biological opinion and reasonable and prudent alternative issued by the U.S. Fish and Wildlife Service regarding continuing operations of the Central Valley Project and State Water Project in California. The two projects provide water to over 20 million Californians.

One petition (pdf) was filed on behalf of Stewart & Jasper Orchards, Arroyo Farms, and King Pistachio ...

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The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and Wildlife Service regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog (Rana sierrae) before proceeding further with the Project.

The Forest Service approved the Upper Echo ...

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Despite landmark settlements requiring the U.S. Fish and Wildlife Service (Service) to review the status of hundreds of species currently listed as candidate species under the Endangered Species Act (ESA), conservation groups continue to file lawsuits to force listing decisions.


For example, the Center for Biological Diversity (CBD) recently filed suit in an effort to force the Service to make final listing decisions for four freshwater aquatic species—the Barrens darter (Etheostoma forbesi), holiday darter (Etheostoma brevirostrum), Atlantic pigtoe mussel (Fusconaia ...

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On May 12, 2014, Appellees Kern County Water Agency, Coalition for a Sustainable Delta, State Water Contractors, and Metropolitan Water District of Southern California filed a petition for rehearing en banc, seeking further review of the recent Ninth Circuit decision relating to the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. San Luis & Delta-Mendota Water Authority v. Jewell, No 11-1587 (9th Cir. March 13, 2014). Two other petitions for rehearing en banc ...

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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 ...

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On May 7, 2014, a U.S. District Court for the Eastern District of North Carolina enjoined (pdf) coyote hunting in five North Carolina counties that provide a recovery area for the red wolf (Canis rufus), a species listed as endangered under the Endangered Species Act (ESA). In Red Wolf Coalition v. North Carolina Wildlife Resources Commission, No. 2:13-CV-60-BO (N.D.N.C. May 7, 2014), plaintiffs sought to enjoin the North Carolina Wildlife Resources Commission (Commission) from issuing permits for coyote hunting in an area spanning 1.7 million acres. The land serves as a recovery ...

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In Native Fish Society v. National Marine Fisheries Service, No. 3:12-cv-00431, environmental groups challenged the operation of the Sandy Hatchery along the Columbia River in Portland, Oregon. Among other things, plaintiffs argued that operation of the hatchery violates the Endangered Species Act (ESA) by causing take of listed fish species, including the Lower Columbia River Chinook, Lower Columbia River coho, Columbia River chum, and Lower Columbia River steelhead. Plaintiffs alleged the hatchery causes take due to competition from hatchery fish, introduction of ...

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On August 20, 2013, the U.S. Court of Appeals for the District of Columbia held (pdf) that appellants’ claims against the U.S. Fish and Wildlife Service (Service) for an alleged failure to take certain actions under the Endangered Species Act (ESA) with respect to the straight-horned markhor (Capra falconeri jerdoni) were moot. 

In 1976, the Service classified the markhor as endangered under the ESA. The species’ primary habitat is the Torghar Hills along the Pakistan-Afghanistan border. In response to the reduction of the markhor population, local tribal leaders formed ...

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In a recently issued press release, the Center for Biological Diversity (CBD) announced that it and the U.S. Fish and Wildlife Service had entered into two settlement agreements that would increase protection for the Mexican gray wolf (Canis lupus baileyi) in Arizona and New Mexico.  The press release states that under the two agreements the Fish and Wildlife Service will increase the wolf's recovery territory, stop capturing wolves entering the two states from Mexico, and finalize a rule to allow direct release of Mexican gray wolves into New Mexico.  Under one of the ...

On July 22, 2013, the U.S. District Court for the Western District of Washington held (pdf) that plaintiffs’ claims regarding the U.S. Fish and Wildlife Service’s (Service) alleged violation of section 10 of the Endangered Species Act (ESA) were not subject to the 60 day notice of intent to sue (NOI) requirement.

In 1997, the Washington Department of Natural Resources (DNR) adopted a habitat conservation plan to govern logging in the forests of southwest Washington.  The marbled murrelet (Brachyramphus marmoratus) is one of a number of endangered and threatened species covered ...

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The United States Court of Appeals for the Fifth Circuit stayed (pdf) an injunction issued by the United States District Court for the Southern District of Texas requiring the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act (ESA).  We reported on the lower court decision that State officials in Texas violated the ESA's prohibition on take of the federally listed whooping crane (Grus americana), here.  At the same time that the court stayed the injunction pending the outcome ...

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On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species ...

On December 4, 2012, the U.S. District Court for the District of Idaho denied a request to amend its previous order reversing the U.S. Fish and Wildlife Service's (Service) 2009 Final Rule listing the slickspot peppergrass (Lepidium papilliferum) as threatened under the Endangered Species Act (ESA).  Plaintiffs sought to reverse the court's August 2012 decision (pdf) to vacate the Service's determination in order to allow the listing to remain in place pending additional review.

The ESA defines "threatened" as "likely to become an endangered species within the foreseeable ...

On Tuesday October 24, 2012, several conservation groups wrote a letter to President Obama expressing concerns about an agreement that the Obama Administration entered into with the American Forest Resource Council, Carpenter Industrial Council, and Douglas County, Oregon (Plaintiffs), to remove critical habitat for the marbled murrelet (Brachyramphus marmoratus), a seabird listed as threatened under the Endangered Species Act (ESA).  The agreement still needs approval by the United States District Court for the District of Columbia.

Plaintiffs sued the U.S. Fish and ...

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On October 22, 2012, the Ninth Circuit Court of Appeals held that the U.S. Fish and Wildlife Service (Service) abused its discretion when it issued a biological opinion (BiOp) and incidental take statement for the Ruby Pipeline Project, and ordered the Service to prepare a revised BiOp.  Center for Biological Diversity v. U.S. Bureau of Land Management, No. 10-72356 (9th Cir. Oct. 22, 2012) (pdf). 

Specifically, the court held that the Service's "no jeopardy" and "no adverse modification" to critical habitat determinations relied on protective measures that are not ...

Posted in Litigation

Previously, we reported on the latest chapter in the decade-long dispute between environmental groups, federal agencies, and pesticide manufacturers over the impact of pesticides on the Pacific Northwest’s listed salmon populations.  The next chapter is scheduled for October 24, 2012, when the U.S. Court of Appeals for the Fourth Circuit will hear oral argument in DowAgrosciences LLC v. National Marine Fisheries Service. In that case, a consortium of pesticide manufacturers are arguing that a Biological Opinion (BiOp) issued by the National Marine Fisheries Service ...

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On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.

Posted in Litigation

In a case with a complicated procedural history, the United States District Court for the District of Oregon recently held (pdf) that a claim for failure to consult under section 7 of the Endangered Species Act (ESA) arises under the citizen suit provision of that Act rather than under the Administrative Procedure Act (APA).  In doing so, the Court followed the Ninth Circuit's reasoning in Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (pdf) and rejected a contrary interpretation included in proposed findings and recommendations (pdf) of the magistrate.  ...

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On Tuesday, March 27, the United States District Court for the Western District of Washington will hear argument in a suit filed by National Wildlife Federation against the Federal Emergency Management Agency (FEMA) for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service's (NMFS) biological opinion regarding the impacts of the FEMA's National Flood Insurance Program (NFIP) on listed species in the Puget Sound.

In 2004, the United States District Court for the Western District of Washington ruled

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A judge in the District of Washington D.C. recently denied a request by the Humane Society of the United States to halt the killing of sea lions that prey on endangered spring run salmon and steelhead on the Columbia River.  On March 15, 2012, the National Marine Fisheries Service (NMFS) reauthorized the removal of California sea lions that congregate at the Bonneville dam and feed on the listed species as they pass the dam.  NMFS's authorization would have allowed the removal of up to 92 sea lions annually through 2016.  The Humane Society challenged NMFS's decision, claiming that NMFS ...

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On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered ...

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On February 7, 2012, the California Department of Fish and Game (DFG) issued a 60-day notice of intent to sue to the United States Army Corps of Engineers over its national levee vegetation removal policy.  This notice follows a United States District Court's recent refusal to allow the Department of Fish and Game to intervene in a similar lawsuit brought by several environmental organizations.  That case is entitled Friends of the River, et al. v. U.S. Army Corps of Engineers, Case No. 2:11-cv-01650 (E.D. Cal.).  

The Corps' policy calls for a vegetation ...

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The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities.  The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.

The Government's case against each defendant was similar.  Defendants operated oil reserve pits on their respective sites.  Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well."  North Dakota state sets forth requirements for operation and remediation of reserve pits.  Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations.  On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.

Posted in Litigation

In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt.  The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action.  Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.

Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith.  At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed.  The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.

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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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