Endangered Species Act

The National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“USFWS”) (together, the “Services”) have released three final rules related to implementation of the Endangered Species Act (ESA). The rules are available on USFWS’s website and are expected to be published in the Federal Register in the coming days.

The Services have

I should start writing a regular segment titled “On the Chopping Block this Week.” While Congress’ hands seem to be tied, the President surely doesn’t have the same problem with overturning policies from the Obama Administration.  This week was no exception, with the release of Trump’s Executive Order on Energy Independence and Interior Secretary Zinke’s

Newton’s Third Law apparently not only applies in physics, but in politics as well.  Last week, the California Senate leadership unveiled the “Preserve California” legislative package to oppose the rollback of federal environmental protections by President Trump and the GOP-controlled U.S. Congress.  The package included California State Senate Bill 49, aka the “California Environmental Defense Act,” which would adopt pre-Trump federal environmental and safety regulations as the minimum standards under California law.

Specifically, Senate Bill 49 would apply to the pre-Trump federal regulations issued under the federal Clean Air Act, Clean Water Act, Endangered Species Act, Safe Drinking Water Act, Fair Labor Standards Act, Occupational Safety and Health Act, and Mine Safety and Health Act.  The bill was introduced because Trump and the GOP have “signaled a series of direct challenges to these federal laws and the protections they provide ….”  Right on cue, President Trump released his plan yesterday to significantly limit the definition of waters of the United States protected by the Clean Water Act.
Continue Reading California to Thwart Trump’s Rollback of Federal Environmental Protections, Including Waters of US Deregulation

In a narrow win for plaintiff Wild Fish Conservancy (“Plaintiff”), the U.S. District Court for the Eastern District of Washington held that the biological opinion (“BiOp”) for the Leavenworth National Fish Hatchery (“Hatchery”) was arbitrary and capricious because the National Marine Fisheries Service (“NMFS”) failed to adequately consider the effects of climate change.

This case concerns a Hatchery located on Icicle Creek about three miles south of Leavenworth, Washington.  The purpose of the Hatchery is to replace spawning habitat impacted by construction of the Grand Coulee Dam, and it is operated by the U.S. Fish and Wildlife Service (“FWS”) and the Bureau of Reclamation (“BOR”).  Icicle Creek is home to two Endangered Species Act (“ESA”) listed species: the Upper Columbia River Chinook salmon and the Upper Columbia River steelhead.Continue Reading Up the Creek Without a Paddle: District Court Holds that Biological Opinion Must Consider Climate Change Impacts

El Niño has recently brought lots of rain to California, but it’s not quite time to start loading the animals two-by-two. However, the California Fish and Game Commission (Commission) did its part yesterday to save a potentially imperiled species by designating the Humboldt marten as a candidate species under the California Endangered Species Act (California ESA).

Humboldt marten, a mammal in the weasel family, can currently be found in forested areas in Northern California. Candidacy listing means the Humboldt marten now has full protection under the California ESA pending the review to list as threatened or endangered.  Those who work near Humboldt martens–mostly timber companies–now have two options during the candidacy period: (1) obtain authorization from the California Department of Fish and Wildlife (CDFW) to take Humboldt martens, which can be a time consuming process; or (2) assume the risk of an enforcement action for take violations if Humboldt martens are not avoided.

While this listing may appear to only affect a small geographic area, the decision has much broader implications for species listings throughout the state.
Continue Reading California Fish & Game Commission Adopts “Very, Very Low” Standard for Candidacy under California ESA

Looks like Christmas came early, again, for the Center for Biological Diversity (CBD).  Based on a petition submitted by CBD, the California Fish and Game Commission voted earlier this month to designate the tricolored blackbird as a candidate species under the California Endangered Species Act (ESA).  The tricolored blackbird now enjoys the same legal protections, including the “take” prohibition, that apply to endangered or threatened species under the California ESA.

Within the next 12 months, the Department of Fish and Wildlife will prepare a status report with a listing recommendation.  Based on staff comments at the candidacy hearing, it appears that report will take the full 12 months to prepare.  Consequently, the Commission would likely make its final determination to list (or not to list) the tricolored blackbird as endangered at a public hearing in early 2017.
Continue Reading Your Tricolored Blackbird Problem Just Got Worse With Candidate Listing Under the California ESA

While many of us were busy hitting refresh for those great Cyber Monday deals, the California Supreme Court quietly issued its decision on the Newhall Ranch project.  In a decision reminiscent of the snail darter era, the Court held that “fully protected fish” are just that — fully protected under California law from all forms of incidental “take” resulting from a development project.  The Court also found that project opponents had exhausted their administrative remedies by submitting comments during an “optional comment period.”  Further, the Court found inadequacies in the “business-as-usual” analysis of GHG impacts from the project.  Stay tuned for a post later this week from one of my air quality colleagues on the implications of the GHG analysis.

I won’t bore you with the long history of this litigation again and again, but in 2010 the California Department of Fish and Wildlife (CDFW) issued an incidental take permit and master streambed alteration agreement to facilitate the build out of the Newhall Ranch project, a mixed-use development project on nearly 12,000 acres in LA County.  Permitting and litigation for the project has been ongoing for over 15 years.

The opposition’s battle cry has consistently been the project’s potential negative impacts to multitudes of fauna and flora.  The showdown before the Court, however, involved only one tiny fish: the unarmored threespine stickleback (stickleback).  While the name may not scream “poster species,” the stickleback has “fully protected” status under California law.  Consequently, the California Fish & Game Code prohibits the “take” of stickleback, i.e. a person may not “hunt, pursue, catch, capture, or kill” or attempt any of those actions.
Continue Reading Take of Fully Protected Fish Stops Large Housing Development Project in LA County

On June 12, the State Water Board issued a notice of “unavailability of water” and the “need for immediate curtailment” from various water users holding pre-1914 water rights.  Less than two weeks later on June 23, lawyers for the State Water Board reportedly stated in court this curtailment notice is advisory only, which would seem

On June 4, 2015, the Court of Appeal ruled that California Fish and Game Code section 1602 (“Section 1602”) unambiguously requires notification to the Department of Fish and Wildlife (“Department”) if an entity or individual plans to “substantially divert” water, even when the legal right to use the water was previously established. (Siskiyou

On January 26, the U.S. Fish and Wildlife Service (“USFWS”) issued a letter to the California High-Speed Rail Authority (the “Authority”) that found that the Authority’s contractors are not in compliance with the Authority’s original environmental commitments to the USFWS in performing the preliminary work on the first segment of the high-speed rail project (the