Ben Rubin

Ben Rubin

Nossaman LLP

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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

Fifth District Says Show Me the Health Impacts, Not Just the Numbers

In a decision that will likely impact projects all across the state, the Court of Appeal for the Fifth Appellate District issued its second major CEQA decision of the year, finding that when a project will result in pollutant...more

6/2/2014 - Air Quality Standards Appeals Carbon Emissions CEQA Environmental Assessments Environmental Impact Report Health Safety Sierra Club Sierra Club v County of Fresno

The Grapes of Wrath Part II - A Return to Horne

In June of last year, the U.S. Supreme Court issued a unanimous opinion in Horne v. Department of Agriculture holding that California raisin handlers could assert a takings claim as an affirmative defense to an enforcement...more

5/16/2014 - Affirmative Defenses Department of Agriculture Enforcement Actions Horne v USDA SCOTUS USDA

House Approves Bill Requiring The Executive Branch To Report Fees Awarded To Prevailing Parties

Yesterday, the House of Representatives approved the Open Book on Equal Access to Justice Act (H.R. 2919), which would amend existing law to require the Executive Branch to provide an annual report to Congress on the amount...more

5/8/2014 - Equal Access to Justice Act ESA Litigation Fees & Costs Proposed Amendments Reporting Requirements

U.S. Fish And Wildlife Service Declines To Reclassify California Plant

On May 2, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding concluding that, based on the best available scientific and commercial information, the endangered Lane Mountain milk-vetch (Astragalus...more

5/5/2014 - Classification Endangered Species Fish and Wildlife Service

'Urban Decay' Still Plagues Calif. Big-Box Retail Plans

The California Environmental Quality Act has long been a key weapon in the ongoing war over development in California. In the last few years, the front line of the war has shifted to big-box retail projects. Originally...more

4/24/2014 - Automotive Industry CEQA Mitigation Retailers Urban Planning & Development

Calling On The "God Squad"

As reported by Kristi Pihl of the Tri-City Herald earlier this week, the Columbia-Snake Irrigators Association has requested that the Governors of Washington, Oregon, and Idaho proceed through the "God Squad" process under...more

4/24/2014 - Endangered Species Act Exemptions Mitigation

City Fails to Adequately Mitigate "Urban Decay" and Energy Impacts of Big Box Retail Project

In the latest decision addressing challenges to "big box" projects under the California Environmental Quality Act ("CEQA"), on February 28, 2014, the California Court of Appeal invalidated the approval of a retail project in...more

4/7/2014 - CEQA Environmental Impact Report Environmental Policies

FTA And FHWA Issue New MAP-21 Guidance That Could Penalize Wildlife Agencies

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects. Included in MAP-21 is a provision requiring all Federal...more

4/2/2014 - Endangered Species Act Federal Funding Federal Transit Administration MAP-21

U.S. Fish And Wildlife Service Proposes To Reclassify California Toad

On March 27, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding and proposed rule to reclassify the arroyo toad (Anaxyrus californicus), a species that is believed to exist exclusively in California,...more

4/1/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service

Rails-to-Trails Decision: Supreme Court Holds that Government Does Not Retain Reversionary Interest

The "Rails-to-Trails" program sounds like such a great idea in theory: take old, abandoned railroad right of way and turn it into public trails. Who would complain about that? Well, it turns out lots of people might...more

3/13/2014 - Brandt Irrevocable Trust v Us Railways Reversionary Rights SCOTUS

9th Circ. Reminds BOEM About The Importance Of Evidence

On Jan. 22, 2014, the Ninth Circuit held that the final environmental impact statement ("FEIS") and supplemental environmental impact statement ("SEIS") regarding the effects of proposed leases for oil and gas development in...more

3/12/2014 - BOEM Environmental Impact Report Environmental Policies Evidence NEPA

U.S. Fish And Wildlife Service Issues Revised Recovery Plan For The Pallid Sturgeon

The U.S. Fish and Wildlife Service (Service) has announced the availability of a revised recovery plan for the pallid sturgeon (Scaphirhynchus albus), a species that is found in the Missouri and Mississippi River basins, has...more

3/7/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service Recovery Plans

U.S. Fish And Wildlife Service Announces Listing Of Two Texas Salamanders

The U.S. Fish and Wildlife Service has announced a final rule listing the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eureycea chisholmensis) as threatened species under the Endangered Species Act. The...more

2/24/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service

After More Than Five Years, Proposed Rule To Delist Hawaiian Hawk Reopened For Comment

In August 2008, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to delist the Hawaiian hawk (Buteo solitarius), also referred to as the io, from the federal list of endangered or threatened species. The...more

2/20/2014 - Endangered Species Endangered Species Act Fish and Wildlife Service Migratory Bird Treaty Act

Court Sides With Federal Government Over Santa Monica Airport

As we reported last month, the United States of America and the Federal Aviation Administration had filed a motion to dismiss a lawsuit brought by the City of Santa Monica in federal court seeking to confirm its alleged right...more

2/17/2014 - Airports FAA

Ninth Circuit Denies Rehearing of Clean Air Act Suit and War of Words Ensues

On February 3, 2014, the United States Court of Appeals for the Ninth Circuit declined to rehear en banc a decision handed down last October by a three-judge panel, thereby leaving in place a decision that could significantly...more

2/10/2014 - Carbon Emissions Clean Air Act Environmental Claims Environmental Liability EPA Greenhouse Gas Emissions Oil & Gas Power Plants SCOTUS

Legislation Requiring the Purchase of Private Property

As recently reported by Aaron Kinney of the San Mateo County Times, State Senator Jerry Hill is planning to introduce legislating requiring the California State Lands Commission to acquire the private property of a Silicon...more

2/10/2014 - Private Property

For The First Time Ever, U.S. Fish And Wildlife Service Declares Fish Recovered

As recently reported in The Oregonian, the U.S. Fish and Wildlife Service (Service) has declared the Oregon chub (Oregonichthys crameri) recovered, and will remove the species from the list of federally threatened and...more

2/5/2014 - ESA Listings Fish and Wildlife Service

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