Kelly Percival

Kelly Percival

Nossaman LLP

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National Marine Fisheries Service Declines to List Distinct Population Segment of Harbor Porpoise in the Baltic Sea

On Tuesday, March 24, 2015, the National Marine Fisheries Service (NMFS) issued a 12-month finding concluding that listing a distinct population segment (DPS) of the harbor porpoise (Phocoena phocoena) in the Baltic Sea as...more

3/26/2015 - ESA Listings National Marine Fisheries Service

Fourth Circuit Upholds U.S. Army Corps of Engineers' Finding of Jurisdiction Over 4.8 Acres of Wetlands in Chesapeake, Virginia

On March 10, 2015, the United States Court of Appeals for the Fourth Circuit held that the U.S. Corps of Engineers (Corps) had lawfully denied a permit to an applicant seeking to fill 4.8 acres of wetlands in order to build...more

3/23/2015 - Appeals Clean Water Act Real Estate Development US Army Corps of Engineers Wetlands

Court Denies Motion to Dismiss a Challenge to Natural Gas Projects in the Great Barrier Reef

On Friday, February 20, a federal district court denied (pdf) a motion to dismiss, thereby breathing life into an Endangered Species Act (ESA) challenge brought against the Export-Import Bank of the United States (Bank) for...more

2/27/2015 - Australia Endangered Species Act Export-Import Bank of the US Oil & Gas

Federal Agencies Revise Killer Whale Listing to Include Whales Held in Captivity

On February 10, 2015, the National Marine Fisheries Service and the National Oceanic Atmospheric Administration (“Services”) issued a final rule (pdf) to include captive killer whales in the Southern Resident killer whale...more

2/17/2015 - Endangered Species Act ESA Listings Final Rules National Marine Fisheries Service NOAA

Federal Court Holds U.S. Fish and Wildlife Service Violated Endangered Species Act by Delisting Gray Wolf in Nine States

The United States District Court for the District of Columbia recently held that the U.S. Fish and Wildlife Service (Service) violated the Endangered Species Act (ESA) when it issued a final rule delisting gray wolves in nine...more

12/31/2014 - Delisting Endangered Species Act ESA Listings Final Rules Fish and Wildlife Service

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

Court Holds Congress Lacks Power to Regulate Take of Intrastate Species that Has No Substantial Effect on Commerce

On November 4th, the U.S. District Court for the District of Utah invalidated the special rule issued by the U.S. Fish and Wildlife Service (Service) regulating take of the threatened Utah prairie dog, a species that only...more

11/10/2014 - Endangered Species Act Fish and Wildlife Service Takings

U.S. Fish and Wildlife Service Lists Western Yellow-Billed Cuckoo as Threatened

Last Friday, the U.S. Fish and Wildlife Service (Service) published its final rule listing the western yellow-billed cuckoo (Coccyzus americanus) as threatened under the Endangered Species Act (ESA). The species is an...more

10/7/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service

U.S. Fish and Wildlife Service Declines to List Two Buckwheat Plants

The U.S. Fish and Wildlife Service (Service) has declined to list two Nevada plants under the Endangered Species Act (ESA). On Wednesday, the Service published its 12-month findings on a petition to list the Churchill Narrows...more

9/26/2014

U.S. Fish and Wildlife Service Lists Two Florida Plants as Endangered

Last Thursday, the U.S. Fish and Wildlife Service (Service) issued a final rule listing two plants as endangered under the Endangered Species Act (ESA). The two species, Florida brickell-bush (Brickellia mosieri) and Carter’s...more

9/11/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service

California District Court Dismisses ESA Section 7 Case for Failure to Allege that Agency Action Took Place on the "High Seas"

On August 12, a judge for the Northern District of California granted a motion to dismiss claims alleging that a federal agency violated section 7 of the Endangered Species Act (ESA) by failing to consult with federal...more

8/18/2014 - Endangered Species Endangered Species Act ESA Listings

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

Two Final Rules Designate One of Largest Critical Habitat Areas in History

On Wednesday, two final rules were released designating critical habitat for the loggerhead sea turtle (Caretta caretta), a species listed as endangered under the Endangered Species Act (ESA). Together, the rules represent...more

7/14/2014 - Critical Habitat ESA ESA Listings Final Rules

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

State Governors Urge the Federal Government to Defer to State Conservation Efforts When Deciding Whether to List a Species Under...

Last week, the bipartisan Western Governors' Association (WGA) adopted a resolution urging the federal government to defer to state conservation efforts and to prioritize funding to avoid new listings under the federal...more

6/17/2014 - Endangered Species Endangered Species Act Fish and Wildlife Service

North Carolina District Court Enjoins Coyote Hunting In Five North Carolina Counties

On May 7, 2014, a U.S. District Court for the Eastern District of North Carolina enjoined coyote hunting in five North Carolina counties that provide a recovery area for the red wolf (Canis rufus), a species listed as...more

5/20/2014 - Endangered Species Endangered Species Act ESA Listings

House Natural Resources Committee Sends Four ESA Reform Bills To The House Floor

After a heated markup hearing on Wednesday, the House Natural Resources Committee voted to send four bills that would amend the Endangered Species Act (ESA) to the floor of the U.S. House of Representatives. ...more

5/2/2014 - Endangered Species Act Natural Resources

District Court Holds That The Incidental Take Statement Requirement Under Section 7 Of The Endangered Species Act Does Not Apply...

Last Thursday, a U.S. District Court for the Northern District of California held that the incidental take requirements in section 7 of the Endangered Species Act (ESA) do not apply to listed plant species. In Center...more

4/10/2014 - Endangered Species Act ESA Listings Incidental Take Permits

Australian Scientists Call For Country To Focus Conservation Efforts On Most Vital Endangered Species

Last Thursday, several prominent conservation biologists in Australia called on the Australian government to allow certain endangered animals to become extinct in order to focus conservation efforts on reviving more vital...more

3/26/2014 - Australia Critical Habitat Endangered Species

Alaska Urges National Marine Fisheries Service To Delist Subpopulation Of Humpback Whales

On February 26, the Alaska Department of Fish and Game petitioned the National Marine Fisheries Service (NMFS) to remove the Central North Pacific subpopulation of humpback whales from the federal list of endangered or...more

3/5/2014 - Endangered Species Act ESA Listings National Marine Fisheries Service

Clean Air Act Ruling May Curb Suits

Last month, the 9th U.S. Circuit Court of Appeals declined to re-hear en banc a decision handed down last October by a three-judge panel, thereby leaving in place a decision that could be a major hurdle for plaintiffs in...more

3/4/2014 - Clean Air Act Environmental Policies Sierra Club

Report Finds The U.S. Fish And Wildlife Service Relied On Inadequate Science To Propose Delisting The Gray Wolf

A report issued by a group of independent scientists claims that the U.S. Fish and Wildlife Service (Service) relied on inadequate scientific evidence to support its proposal to delist the gray wolf (Canis lupus) under the...more

2/14/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service

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

U.S. Fish And Wildlife Service Reopens Public Comment Period For Proposed Special Rule For The Lesser Prairie-Chicken

On January 29, the U.S. Fish and Wildlife Service (Service) announced the reopening of the public comment period for a special rule originally proposed on May 6, 2013 that would allow for limited take of the lesser...more

2/4/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service

Congress To Consider Exempting "Three Amigos" Antelopes From Endangered Species Act

The U.S. Senate is set to consider exempting three antelope species from protection under the Endangered Species Act (ESA). The scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope...more

1/20/2014 - Endangered Species Endangered Species Act ESA Listings Fish and Wildlife Service

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