ESA Section 9 Case Dismissed Because of Allegations re Take
Posted in Court Decisions

Earlier this month, the United States District Court for the Northern District of California dismissed a lawsuit brought under section 9 of the Endangered Species Act (ESA) because, instead of attacking a specific project or approval, the complaint and notice of intent generally attacked all land use permit decisions by the local agency.  Under section 9 of the ESA, it is illegal for any private or public entity to "take" an endangered species. 16 U.S.C. 1538(a)(1)(B).  The term "take" has been broadly defined to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19).  The species at issue was the endangered Sonoma County distinct population segment of the California tiger salamander ("Salamander").  The complaint generally alleged that the County of Sonoma had engaged in "take" by issuing permits within 1.3 miles of a known Salamander breeding site, a known occurrence, and/or within critical habitat corridors.  Without a specific project or approval to review, the court found that the "action would devolve into a speculative exercise," and therefore the project was simply "not yet ripe for adjudication."  California River Watch v. County of Sonoma, No. C 14-00217 (N.D. Cal. July 10, 2014).  In addition to finding that the matter was not ripe, the court also found that dismissal was appropriate because the 60-day notice of intent failed to comply with the ESA, as it failed to provide a specific geographic area, project or approval, and therefore "failed to provide sufficient information for the County to identify or attempt to abate the alleged violation."

      

  • Partner

    Ben Rubin assists developers, public agencies, landowners, and corporate clients on a variety of complex land use and environmental matters.  He counsels clients on matters dealing with the Federal and State Endangered Species ...

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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