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California Land Use & Development Law Report Legal Commentary on Planning and Development

Category Archives: Endangered Species

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Airport Challenge Does Not Fly: Court Upholds Use of Addendum for Changes to San Jose Airport Master Plan

Posted in CEQA, Climate Change, Endangered Species

The City of San Jose’s use of an addendum for recent modifications to the San Jose Airport’s Master Plan has been upheld by the court of appeal.  Citizens Against Airport Pollution v. City of San Jose, H038781 (6th Dist.  July 2, 2014)  In 1988, the City of San Jose began to prepare an update to its… Continue Reading

State Water Resources Control Board May Weigh the Use of Water for Public Purposes Against Commercial Use by Riparian Users and Early Appropriators in Determining Reasonableness of Commercial Use

Posted in Endangered Species, Environmental Regulation, Water Supply

A court of appeals, for the first time, has upheld the  State Water Resources Control Board’s authority to restrict valid pre-1914 and riparian water rights on the ground that their exercise has become an unreasonable use of water under current circumstances. While it has long been accepted that California law requires that water be put to… Continue Reading

Criminal Penalties for Bird Deaths Caused by Wind Projects

Posted in Endangered Species, Environmental Regulation

In the first criminal case ever prosecuted under the Migratory Bird Treaty Act, the U.S. Fish and Wildlife Service and Department of Justice filed misdemeanor charges against Duke Energy for more than 163 migratory bird deaths, including golden eagles, at its wind power projects near Casper, Wyoming.  On November 22, 2013, the case was resolved by… Continue Reading

Federal Agencies Cannot Use Consent Decrees To Adopt Stricter Regulatory Requirements, According to Ninth Circuit

Posted in Endangered Species, Environmental Regulation, Land Use

Can a district court “approve resolution of litigation involving a federal agency though a consent decree, which substantially and permanently amends regulations that the agency could only otherwise amend by complying with statutory required rulemaking procedures”?  The Ninth Circuit’s answer was no.  Conservation Northwest v. Sherman (9th Cir. Case No. 11-35729, Apr. 25, 2013).  The case… Continue Reading

Definition of “Agency Action” under the Endangered Species Act to be Reheard by Ninth Circuit

Posted in Endangered Species, Environmental Regulation, Water Supply

In July 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar, 686 F.3d 1092 (9th Cir. 2012),  that the decision by the U.S. Bureau of Reclamation to renew a series of water service contracts in connection with the Central Valley Project did not constitute “agency action” under the Endangered… Continue Reading

California Supreme Court Agrees to Hear Case Under California Endangered Species Act

Posted in Endangered Species

The California Endangered Species Act allows interested parties to file a petition with the California Fish & Game Commission to list or delist a species as threatened or endangered.  If the Commission accepts the petition, it then decides whether to take the action requested in the petition, based on a scientific report by the California Department of… Continue Reading

Fish & Game Commission’s Decision To Deny Petition To Remove Coho Salmon From The State Endangered Species List Upheld

Posted in Endangered Species

The California Endangered Species Act allows interested parties to file a petition with the California Fish & Game Commission to list or delist a species as threatened or endangered.  If the Commission accepts the petition, it then decides whether to take the action requested in the petition, based on a scientific report on the species… Continue Reading

Court Overturns Biological Opinion That Relied On Unenforceable Conservation Measures

Posted in Endangered Species

The Ninth Circuit has overturned a Biological Opinion issued by the U.S. Fish & Wildlife Service for the Ruby Pipeline Project, a proposed natural gas pipeline that would extend nearly 700 miles from Wyoming to Oregon, encompassing almost 2,300 acres of federal land and crossing 209 rivers and streams.  The Biological Opinion relied on a… Continue Reading

Ninth Circuit Upholds Fish & Wildlife Service Regulations Against Environmentalists’ Challenge

Posted in Endangered Species, Environmental Regulation, NEPA

The Chukchi Sea off the North Slope of Alaska is a promising place for oil and gas development.  But it’s also home to polar bears and walruses.  This clash of interests led to a lawsuit by two environmental groups against the Fish & Wildlife Service, decided by the Ninth Circuit in the Service’s – and… Continue Reading

The Ninth Circuit Interprets “Agency Action” under the Endangered Species Act – Again

Posted in Endangered Species, Environmental Regulation

On July 17, 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar that the U.S. Bureau of Reclamation’s renewal of water delivery contracts with senior priority water rights holders was not “agency action” under section 7 of the Endangered Species Act. The panel held that because the Bureau… Continue Reading

The Wetlands Debate Intensifies As House Republicans Question Two Upcoming EPA Studies

Posted in Endangered Species, Environmental Regulation, Wetlands

In a recent post ["When is a Wetland a Wetland -- and How Do We Find Out?"] we described the significant uncertainties in ascertaining the reach of the Clean Water Act over wetlands, ponds, drainage ditches and other small aquatic features only remotely connected to navigable waterways such as rivers and lakes.  On June 12, the debate… Continue Reading

To Consult or Not To Consult – That Is the Question for the Ninth Circuit

Posted in Endangered Species, Environmental Regulation, NEPA

The Ninth Circuit is at center stage again in the debate over the interpretation and enforcement of federal environmental laws.  In a sharply divided 7-4 en banc decision, the Ninth Circuit ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) by allowing recreational gold mining activities in the Klamath National Forest in… Continue Reading

How Far Will USFWS Expand Incentives for Voluntary Conservation Actions Under the Endangered Species Act?

Posted in Endangered Species

The U.S. Fish and Wildlife Service tries to encourage landowners to take voluntary steps to benefit species that might become threatened or endangered.  The hope is that the landowners’ conservation actions will prevent the species from declining to the point that listing is required.  But as USFWS has recognized, the beneficial actions of one or… Continue Reading

Ninth Circuit Upholds Removal Of Endangered Species Act Protections for Gray Wolves

Posted in Endangered Species

Over the course of a decade, the U.S. Fish & Wildlife Service’s repeated attempts to “delist” a portion of the Rocky Mountain gray wolf population from the Endangered Species Act were rebuffed by the courts.  So, the proponents of the delisting turned to Congress.  The result was section 1713 of the 2011 Appropriations Act, which… Continue Reading