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. ...
Under the Migratory Bird Treaty Act (MBTA), it is unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird" protected by the Act. 16 U.S.C. 703(a) & 704(a). In a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA imposes a strict liability standard for any of the aforementioned acts, in order for an unlawful "taking" to occur, the defendant must have taken a "deliberate act done directly and intentionally to migratory birds." United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. Sept. 4 ...
In an article forthcoming in the Journal of Environmental Studies and Sciences, Dr. Dennis Murphy and I examine a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to amend the existing regulations that implement the interagency consultation process set out in Section 7 of the Endangered Species Act by codifying their pre-existing practice of using surrogates to express the amount or extent of incidental take of listed species. We describe the proposed rule, place the use of surrogates for conservation planning in historical context, and ...
The Trinity River Hatchery, which is operated by the California Department of Fish and Wildlife and funded by the U.S. Bureau of Reclamation, has a production capacity of approximately 40 million salmonid eggs. Operations at the Hatchery are intended to mitigate for lost salmonid habitat due to the construction and operation of various water projects. However, a recent lawsuit filed by the Environmental Protection Information Center alleges that instead of mitigating for impacts to endangered and threatened salmon and steelhead, the Hatchery is "taking" the protected species ...
On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals. The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines.
The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises. The proposed rule would authorize over 31 million takes during a five-year period.
All of the 62 species at issue are protected under the Marine ...
In a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim. Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012). Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead ...
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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