Ben Rubin

Ben Rubin

Nossaman LLP

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ESA Roundup – Legislation, Listings, and Litigation

Whether dealing with water or with endangered species directly, there have been a numbers of recent developments that are worth keeping on your radar.  July 16, 2015 – The House of Representative, in a largely partisan...more

7/22/2015 - Bureau of Reclamation Central Valley Distinct Population Segment Drought Endangered Species ESA Fish and Wildlife Service National Marine Fisheries Service PETA State Water Project Water

Ninth Circuit Holds Critical Habitat Designations Not Subject to Cost-Benefit Analysis

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...more

7/10/2015 - Administrative Procedure Act Cost-Benefit Analysis Critical Habitat Economic Impact Analysis Endangered Species Act National Marine Fisheries Service

California Supreme Court Holds Inclusionary Zoning Subject to Rational Basis Review

2013 was a banner year for developers under the takings clause, as both the U.S. Supreme Court and California Supreme Court issued decisions expanding the developers’ ability to challenge exactions as unconstitutional. In...more

6/18/2015 - Affordable Housing CA Supreme Court Construction Industry Exactions Inclusionary Housing Ordinance Real Estate Development Rough Proportionality Test Takings

California Supreme Court Holds Facial Challenge to Inclusionary Zoning Ordinance Subject to Deferential Standard of Review

In a decision with major repercussions for the building industry in California, the California Supreme Court unanimously rejected a constitutional challenge to San Jose's affordable housing ordinance. California Building...more

6/17/2015 - Affordable Housing CA Supreme Court Essential Nexus Exactions Inclusionary Housing Ordinance Land Use Restrictions Local Ordinance Police Power Rough Proportionality Test Standard of Review

How One Misstep Resulted in a $2.5 Million Lesson

Every so often, a decision comes out that makes you stop for a second and take a breath. Generally, these decisions have two essential components: (1) they deal with a statute of limitations; and (2) they involve millions of...more

6/11/2015 - Appeals Petition for Writ of Mandate Real Estate Development Statute of Limitations Takings

Ninth Circuit Holds Consultation Unnecessary for Wind Energy Project

On May 27, 2015, the U.S. Court of Appeals for the Ninth Circuit provided some additional guidance as to what constitutes agency action for purposes of triggering the consultation requirement under the Endangered Species Act...more

6/5/2015 - Appeals Bureau of Land Management Consultation Endangered Species Act Fish and Wildlife Service Sierra Club Wind Power

U.S. Fish and Wildlife Service to Consider Expanding Incidental Take Authorization Under Migratory Bird Treaty Act

This week, the U.S. Fish and Wildlife Service (Service) published a notice in the Federal Register identifying its intent to prepare an environmental impact statement analyzing various approaches for regulating incidental...more

5/28/2015 - Comment Period Environmental Impact Report Federal Register Fish and Wildlife Service Incidental Take Permits Migratory Bird Treaty Act

Federal Government Proposes Revisions to Endangered Species Act Regulations

While a number of Endangered Species Act (ESA) reform bills continue to wind their way through Congress (see our May 6, 2015 post), Monday, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)...more

5/19/2015 - Center for Biological Diversity Critical Habitat Delisting Endangered Species Endangered Species Act Fish and Wildlife Service Habitat Conservation Plan National Marine Fisheries Service

Citing Conservation Plan and $45 Million in Funding, FWS Concludes Listing for Bi-State Population of Greater Sage Grouse is...

While the larger controversy is far from over, for the California and Nevada populations of the greater sage grouse (Centrocercus urophasianus), the controversy does appear to be put to rest. In 2013, the U.S. Fish and...more

4/23/2015 - Critical Habitat Endangered Species ESA Listings Fish and Wildlife Service Proposed Regulation

Federal Court Strikes Down HCP: No Piggybacks Under Section 10

While decisions dealing with lawsuits alleging violations of section 7 or section 9 of the Endangered Species Act (ESA) are rather common, it is far less common for courts to address suits under section 10. In fact, in any...more

4/14/2015 - Critical Habitat Endangered Species Act Fish and Wildlife Service Habitat Conservation Plan Incidental Take Permits National Marine Fisheries Service NOAA Section 10

Federal Court Strikes Down Habitat Conservation Plan and Biological Opinion for Logging Project in Northern California

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...more

4/14/2015 - Conservation Endangered Species Act Fish and Wildlife Service Habitat Conservation Plan Incidental Take Permits Logging NOAA

When Uncertainty Surrounds California Solar Project, Court Defers to Agency Not Tortoise

Project opponents have been invoking the Endangered Species Act (ESA) with increasing regularity in an attempt to block the construction of large-scale renewable energy projects. ...more

4/7/2015 - Construction Industry Endangered Species Act Energy Projects Fish and Wildlife Service Renewable Energy Solar Energy

Agencies Must Aim for Recovery of the Species When Designating Critical Habitat

In a decision issued earlier this week, a U.S. District Court rejected the U.S. Fish and Wildlife Service’s (Service) interpretation of the Endangered Species Act (ESA), finding that its interpretation of the critical habitat...more

3/27/2015 - Critical Habitat Endangered Species Act Fish and Wildlife Service Statutory Interpretation

Can Comments By a Federal Employee Result in a Taking Requiring Compensation Under the Fifth Amendment?

It depends. A recent decision out of the Federal Circuit tackled this very issue, and the court’s decision strongly suggests that a taking could arise under the right circumstances. (Filler v. U.S. (Fed. Cir. Mar. 10, 2015)...more

3/17/2015 - Defamation Federal Employees Fifth Amendment Inverse Condemnation Just Compensation National Marine Fisheries Service Online Reviews Takings Clause Tortious Interference

U.S. Supreme Court Agrees to Take a Second Look at Takings Case

The burning question, is why? While this is not the first time the U.S. Supreme Court has ever granted a petition for review in the same case, it is certainly not common. And, it is downright uncommon for the Supreme Court...more

2/19/2015 - Affirmative Defenses Enforcement Actions Horne v USDA Legal History SCOTUS Takings USDA

A Closer Look At T-Mobile V. Roswell

On Jan. 14, the U.S. Supreme Court issued its long-awaited decision in T-Mobile South LLC v. City of Roswell, holding that the city violated the "in writing" requirement of the Federal Telecommunications Act of 1996, 47...more

2/4/2015 - Cell Towers Municipalities Operational Permits SCOTUS Substantial Evidence Standard T-Mobile South v City of Roswell Telecommunications Act of 1996 Written Notice

U.S. Supreme Court Holds in Favor of Cell Tower Siting Applicants

On January 14, the U.S. Supreme Court in T-Mobile South, LLC v. City of Roswell, held that the City of Roswell ("City") violated the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii) (the "Telecommunications...more

1/19/2015 - Cell Phones Municipalities Operational Permits Permits SCOTUS Substantial Evidence Standard T-Mobile T-Mobile South v City of Roswell Telecommunications Telecommunications Act of 1996

Equal Access To Justice Act: Why Prevailing On Only 1 Out Of 3 Claims In Oregon Forestry Case Can Still Be Quite Rewarding

Generally, a failure rate of two-thirds would indicate that what you are doing isn't profitable. However, when dealing with environmental law, that clearly isn't the case. In Cascadia Wildlands v. Bureau of Land Management,...more

1/8/2015 - Access To Justice Attorney's Fees Bureau of Land Management Environmental Assessments FLPMA NEPA

California Supreme Court Grants Review of Coastal Act Decision with Takings Implications

In September 2014, the Court of Appeal for the Fourth Appellate District issued a surprising decision, finding that even if an applicant maintains that it is accepting imposed permit conditions “under protest” and expressly...more

12/23/2014 - Building Permits California Coastal Commission Coastal Real Estate Petitions for Review Public Access Laws

Endangered Species Act Roundup – Three For the Price of One

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...more

12/17/2014 - Endangered Species Endangered Species Act Fish and Wildlife Service

Notice Period Doesn't Cause 9th Circ. To Pause on ESA

The decision by the Ninth Circuit in Alliance for the Wild Rockies v. U.S. Dep't of Agriculture, No. 13-35253 (9th Cir. Nov. 20, 2014), permitting plaintiffs to amend a complaint to add claims under the federal Endangered...more

12/15/2014 - Amended Complaints Department of Agriculture Endangered Species Act Notice of Intent

This Proposed Rulemaking Should be Mandatory Reading for All Public Transportation Agencies

On November 24, 2014, the Federal Highway Administration (FHWA) published a proposed rule that would amend the regulations governing how Federal grant recipients acquire, manage, and dispose of real property. Thus, the...more

12/2/2014 - Federal Grants Federal Highway Administration Government Entities Highways Infrastructure Proposed Regulation Public Projects Public Property

Ninth Circuit Lifts the Veil: Explains How to Comply With Endangered Species Act 60-Day Notice Requirement

The federal Endangered Species Act (ESA) imposes certain procedural hurdles on any would-be plaintiff commencing a citizen suit to compel compliance with the ESA. One of the more substantive requirements is the 60-day notice...more

11/26/2014 - Citizen Suits Endangered Species Act Fish and Wildlife Service National Park Service National Parks NEPA NFMA Notice Requirements Pre-Suit Notice Written Notice

Opponents of Arena Project Foul Out

On November 20, 2014, the Third District Court of Appeal (Court) handed a partial victory to the City of Sacramento (City), rejecting petitioners' appeal and thereby authorizing the continued construction of the Sacramento...more

11/25/2014 - Appeals CEQA Construction Industry Construction Project Environmental Impact Report Public Resources Code

Federal Court States Rationale for U.S. Take of California Land a “Sham”

The question now is, is the court’s statement merely a bump in the road or a roadblock? The United States filed the eminent domain action seeking to condemn certain access rights so it could increase its profitability when...more

11/14/2014 - Affirmative Defenses Condemnation Eminent Domain Government Land GSA Takings

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