Ben Rubin

Ben Rubin

Nossaman LLP

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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

Utah Court Bucks the Trend: Holds Congress Lacks Power to Regulate Intrastate Species on Private Land

Contrary to every federal court of appeal decision that has addressed the issue, a federal court in Utah has held that the broad authority of the U.S. Fish and Wildlife Service (Service) to regulate "take" of threatened...more

11/12/2014 - ESA Fish and Wildlife Service Jurisdiction Private Land Property Owners Takings

U.S. Fish and Wildlife Service Re-Opens Comment Period for Cuckoo Critical Habitat

As we reported in October, after significant pressure from Congress, the U.S. Fish and Wildlife Service (Service) announced its intent to re-open the public comment period on its proposal to designate 546,335 acres of...more

11/12/2014 - Critical Habitat Fish and Wildlife Service Public Comment

NMFS Finds Listing Not Warranted for Queen Conch

On November 5, 2014, the National Marine Fisheries Service issued a 12-month finding for the queen conch (Strombus gigas), concluding that the species prized for its meat and shell does not warrant listing because it is “not...more

11/7/2014 - Endangered Species Act ESA Listings National Marine Fisheries Service

Coastal Commission’s Public Access Easement Found to Be A Taking

In a published decision, the California Court of Appeal for the Second Appellate District rejected the California Coastal Commission’s (“Commission”) finding that there is no rational nexus or rough proportionality between...more

11/4/2014 - Appeals California Coastal Commission Coastal Real Estate Easements Land-Use Permits Public Access Laws Sierra Club SurfRider Takings

U.S. Fish and Wildlife Service Re-Opens Comment Period for Cuckoo Under Pressure from Congress

Yesterday, the U.S. Fish and Wildlife Service (Service) announced that it will re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed...more

10/16/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service

Service Proposes to List Fisher DPS As Threatened

On October 6, the U.S. Fish and Wildlife Service (Service) issued a news release announcing its proposal to list the West Coast Distinct Population Segment (West Coast DPS) of fisher (Pekanian pennanti) as threatened under...more

10/9/2014 - Endangered Species ESA Listings Fish and Wildlife Service Marijuana Cultivation

Court Holds Lack of Specificity Dooms Wyoming Wolf Delisting

On September 23, 2014, the U.S. District Court for the District of Columbia invalidated the final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Wyoming Gray Wolf distinct population segment from...more

9/25/2014 - Endangered Species Endangered Species Act ESA Listings Fish and Wildlife Service

CEQA Reform in the Courts – Public Agency Can Recover Costs Despite Petitioner's Election

After Governor Brown took office for the second time, CEQA reform through the Legislature seemed like a distinct possibility. While that possibility has all but evaporated, recent rulings suggest that courts are taking a...more

9/23/2014 - CEQA CEQA Reform Environmental Policies

Environmental Review Required for Subdivision Map Approvals

On September 9, the Third District Court of Appeal held that tentative subdivision map approvals "always have at least the potential to cause" a direct or indirect physical change in the environment and thus are categorically...more

9/17/2014 - CEQA Environmental Impact Report Environmental Review Infrastructure Mitigated Negative Declaration Subdivision

House Committee Holds Hearing on Proposed Endangered Species Act Amendments

This morning, the House Committee on Natural Resources is holding a legislative hearing on six proposed amendments to the Endangered Species Act (ESA). The six proposed amendments are...more

9/10/2014 - Endangered Species Legislative Agendas Natural Resources

Listing May Be Warranted for Clownfish

In a 90-day finding published this morning in the Federal Register, the National Marine Fisheries Service (NMFS) found that the listing of the orange clownfish (Amphiprion percula) "may be warranted" under the Endangered...more

9/4/2014 - Endangered Species Endangered Species Act ESA Listings Fish and Wildlife Service

Court Reluctantly Upholds Designation of Critial Habitat for Frog

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky...more

8/28/2014 - Critical Habitat Endangered Species Act ESA Listings Fish and Wildlife Service

California Legislature Moves One Step Closer to Authorizing Eminent Domain for Martins Beach

Just in case you lost track of the Martins Beach saga, here is a quick summary and update. According to reports, a couple of years after billionaire Vinod Khosla bought beachfront property in San Mateo County for over $30...more

8/19/2014 - Eminent Domain Takings

Fifth Circuit Holds that the Army Corps of Engineers' Jurisdictional Determination Does Not Constitute a Reviewable "Final Agency...

On July 30, 2014, the United States Court of Appeals for the Fifth Circuit held that the issuance of a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) is not a final agency action subject to...more

8/14/2014 - Administrative Procedure Act Clean Water Act Jurisdiction US Army Corps of Engineers Water

California Supreme Court Holds No CEQA Review Required for a Voter Initiative-Sponsored Ordinance

In a relatively short decision, the California Supreme Court held in Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (Tuolumne Jobs) that the California Environmental Quality Act (CEQA) does not...more

8/13/2014 - CEQA Environmental Impact Report Environmental Policies Environmental Review Popular Wal-Mart

U.S. Fish and Wildlife Service Lists Two Texas Minnows, Acknowledges Impacts to Water Management Likely

On August 4, 2014, the U.S. Fish and Wildlife Service (Service) announced its decision to list two small Texas minnows -- the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N. buccula) -- as endangered under the...more

8/6/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service Water

How Untimely Service Can Be Deadly To Your Takings Claim

If you ask ten attorneys what keeps them up at night, at least six of them will recount nightmares about missing a filing deadline. I know what you're thinking. How hard can it be? You just look in the Code, find the...more

7/29/2014 - CEQA Estoppel Filing Deadlines Mineral Leases Oil & Gas Service of Process Well Drilling

ESA Section 9 Case Dismissed Because of Allegations re Take

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...more

7/17/2014 - Endangered Species Endangered Species Act ESA Listings Land-Use Permits Notice of Intent Section 9 Takings

USFWS and NMFS Issue Joint Policy Interpreting ESA Listing Criteria

On Friday, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service issued their final interpretation of the phrase "significant portion of its range" for the purposes of applying the Endangered...more

6/30/2014 - ESA ESA Listings Fish and Wildlife Service National Marine Fisheries Service

D.C. District Court Holds Pre-Violation Notice Ineffective

On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the...more

6/25/2014 - Endangered Species Endangered Species Act ESA Listings Fish and Wildlife Service

Supreme Court Strikes Part of EPA Rule Regulating Greenhouse Gases, Affirms Balance of Rule

In a 5-4 decision, the U.S. Supreme Court held that EPA acted unlawfully when it sought to impose a permit requirement on stationary sources solely on the basis of greenhouse gas emissions from those sources under programs...more

6/24/2014 - Carbon Emissions Clean Air Act EPA Greenhouse Gas Emissions Power Plants SCOTUS Utility Air Regulatory Group v EPA

Calif. Projects Must Take Health Impacts Into Account

In Sierra Club v. County of Fresno, a decision that will likely impact projects across California, the Court of Appeal for the Fifth Appellate District issued its second major California Environmental Quality Act ("CEQA")...more

6/18/2014 - Air Quality Standards Appeals CEQA Environmental Impact Report Health Safety Mitigation Sierra Club Sierra Club v County of Fresno

City of San Clemente Shoreline Project On the Horizon

On June 10, 2014, President Obama signed into law the Water Resources Reform and Development Act of 2014, which, among other things, streamlines the U.S Army Corps of Engineers' infrastructure authorization process,...more

6/16/2014 - Environmental Policies Public Projects Water WRRDA

Rose That Calls California and Nevada Home Listed as Threatened

On June 2, 2014, the U.S. Fish and Wildlife Service (Service) announced the listing of the Webber's ivesia (Ivesia webberi) as a threatened species under the Endangered Species Act, and the designation of 2,170 acres of...more

6/3/2014 - Critical Habitat Endangered Species Act ESA Listings Fish and Wildlife Service

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