Ben Rubin

Ben Rubin

Nossaman LLP

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Wolf-Rider Introduced in House Funding Bill

As recently reported by the Center for Biological Diversity, a rider has been proposed for an appropriations bill that would provide $1.5 billion to the U.S. Fish and Wildlife Service in 2017.  The controversial rider would...more

5/26/2016 - Appropriations Bill Endangered Species Endangered Species Act (ESA) Environmental Policies Legislative Agendas Proposed Legislation US Fish and Wildlife Service

Court Rejects ESA Challenge to County’s Local Land Use Planning

On April 8, the United States District Court for the Middle District of Florida held that Collier County’s (County) land use planning regulations were complimentary, not contrary to the Endangered Species Act (ESA). The...more

4/13/2016 - Conservation Critical Habitat Endangered Species Endangered Species Act (ESA) ESA Listings Public Projects Roads

Will the Next Supreme Court Justice Reshape Environmental Law?

Yes, no, maybe so. With the passing of Justice Antonin Scalia, many have already started to prognosticate about the sea change that will inevitably follow. While it is certainly possible that such a sea change will come to...more

2/15/2016 - Antonin Scalia Clean Air Act Clean Power Plan Environmental Policies EPA Judicial Appointments Nominations SCOTUS

U.S. Fish and Wildlife Service Concludes Northern Wolf Species Doesn’t Merit Listing

On January 6, 2016, the U.S. Fish and Wildlife Service (Service) issued its 12-month finding on the petition to list the Alexander Archipelago wolf (Canis lupus ligoni) as an endangered or threatened species under the...more

1/11/2016 - Endangered Species Endangered Species Act (ESA) ESA Listings US Fish and Wildlife Service

Court Holds Pre-Violation Notice Under the Endangered Species Act Is Akin to No Notice At All

Under the Endangered Species Act (ESA), a citizen plaintiff is required to provide a notice no less than 60-days before filing certain types of lawsuits against the federal government.  For example, a 60-day notice is...more

12/28/2015 - Endangered Species Act (ESA) ESA Listings Notice Requirements

Court Rejects Some, But Not All Challenges to Critical Habitat Designation of Private Land

In 2012, the U.S. Fish and Wildlife Service (Service) published a final rule designating 1,724 acres as critical habitat for the endangered Riverside fairy shrimp (Streptocephalus woottoni).  Included in that designation were...more

11/20/2015 - Critical Habitat Endangered Species Endangered Species Act (ESA) Private Property US Fish and Wildlife Service

[Event] Nossaman's 2015 Environmental and Land Use Seminar - September 22nd, Newport Beach, CA

Nossaman will host a complimentary half-day seminar comprised of panel discussions on a spectrum of critical federal and state environment and land use issues, including new federal rules implementing the Clean Water Act and...more

9/15/2015 - CEQA Clean Water Act Drought Endangered Species Act (ESA) Events Land Use Restrictions Land-Use Permits Real Estate Development

Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA “Take” Prohibition

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...more

9/11/2015 - Bird Fatalities Clean Air Act Electricity Energy Sector Migratory Bird Treaty Act Oil & Gas Refineries US Fish and Wildlife Service Utilities Sector

A Legal Morass: Overlapping Takings Law With the Endangered Species Act

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act...more

8/25/2015 - Agricultural Land Compensation Standards Eminent Domain Endangered Species Act (ESA) Farms Fifth Amendment Horne v USDA Private Property SCOTUS Takings

California Supreme Court Holds that State Agencies May Not Escape CEQA Mitigation Requirements Based on Failure of the Legislature...

In a decision that enhances the ability of local interests to obtain mitigation funds from state agencies, the California Supreme Court held that the California Environmental Quality Act ("CEQA") requires the Board of...more

8/6/2015 - Appeals Board of Trustees CA Supreme Court CEQA Environmental Impact Report (EIR) Mitigation Reversal Universities Urban Planning & Development

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 Drought Endangered Species Endangered Species Act (ESA) National Marine Fisheries Service PETA State Water Project US Fish and Wildlife Service 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 (ESA) 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 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 (ESA) Sierra Club US Fish and Wildlife Service 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 (EIR) Federal Register Incidental Take Permits Migratory Bird Treaty Act US Fish and Wildlife Service

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 (ESA) Habitat Conservation Plan National Marine Fisheries Service US Fish and Wildlife 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 Proposed Regulation US Fish and Wildlife Service

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 (ESA) Habitat Conservation Plan Incidental Take Permits National Marine Fisheries Service NOAA US Fish and Wildlife Service

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 (ESA) Habitat Conservation Plan Incidental Take Permits Logging NOAA US Fish and Wildlife Service

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 (ESA) Energy Projects Renewable Energy Solar Energy US Fish and Wildlife Service

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 (ESA) Statutory Interpretation US Fish and Wildlife Service

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 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

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