By Leslie Z. Walker

The U.S. Court of Appeals for the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s (“USFWS”) designation of 850,000 acres as critical habitat for fifteen endangered or threatened vernal pool species, against procedural attacks by the Homebuilders Association of Northern California (“Homebuilders”). In Homebuilders et al. v. U.S. Fish and Wildlife Service, (9th Cir. Aug. 9, 2010, No. 07-16732) ____ F.3d____ 2010 U.S. App. LEXIS 16439, Homebuilders claimed USFWS violated the Endangered Species Act (“ESA”) (16 U.S.C. § 1531 et seq.) in issuing its final rule designating the critical habitat by: 1) improperly identifying primary constituent elements on the property; 2) failing to identify the habitat as either occupied or unoccupied habitat; 3) failure to predict when the species will be conserved; 4) improper textual exclusion of development areas from critical habitat designation; and 5) failure to conduct a cumulative economic impacts analysis. Giving deference to USFWS’s determination, the appellate court, like the trial court, upheld the habitat designations, rejecting the Homebuilders arguments for the reasons described below.

Continue Reading U.S. Fish and Wildlife Service not Required to Predict the Point of Return for Critical Habitat under the Endangered Species Act

By Emilio Camacho & Leslie Walker

The County of Sacramento kicked off Phase 2 of the Climate Action Plan development at a workshop on Wednesday, August 25, 2010. Phase 2 will develop strategies to implement the Climate Action Plan (CAP), a comprehensive plan for becoming more resource efficient and reducing greenhouse gas (GHG) emissions, originally released in May 2009. 

Continue Reading Sacramento County Climate Action Plan – Part Two

By Katherine J. Hart

The City of Los Angeles generally prohibits freeway, supergraphic and off-site billboards, but has adopted a few exceptions to the rule. For instance, it permits freeway signs and supergraphic and off-site signs in areas where specific plans are adopted to govern such signs or pursuant to development agreements, in accordance with its police power (the power to control local land use). Numerous billboard companies erected freeway and supergraphic signs all over the city. In 2008, the city adopted a moratorium on new supergraphic and off-site signs.

Continue Reading Police Power Gives Cities Wide Discretion in Enforcing Billboard Bans

By Katherine J. Hart

In Northwest Environmental Defense Center, et al. v. Marvin Brown, et al., an environmental group sued various timber companies along with the Oregon State Forester and the individual members of the Oregon Board of Forestry for violations of the Clean Water Act on the grounds they did not obtain permits from the Environmental Protection Agency (EPA) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels, which is eventually discharged into forest streams and rivers. The Ninth Circuit Court of Appeals concluded that such runoff from logging roads is a point source discharge and thus, an NPDES permit is required. The Court all but directed the EPA to prepare a general NPDES permit for stormwater runoff from logging roads which is discharged to navigable waters via ditches, culvert, and channels, and further indicated its confidence that the EPA would be able to do so in an expeditious manner. In California, the State Water Resources Control Board will be tasked with preparing and adopting such a general permit.

On May 17, 2011 the Ninth Circuit denied reconstruction of it forest roads decision in NEDC v. Brown.

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

By Diane Kindermann Henderson and Cori M. Badgley

The Ninth Circuit Court of Appeals upheld a biological opinion (“BO”) by the U.S. Fish & Wildlife Service (“FWS”) authorizing the destruction of critical habitat for three species, where the BO applied a percentage formula to ascertain whether there would be adverse modification or destruction of critical habitat. The Ninth Circuit concluded, “The FWS’ determination that critical habitat would be destroyed was not inconsistent with its finding of ‘no adverse modification.’ After all, the project would affect only a very small percentage of the total critical habitat or vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.” (Butte Environmental Council v. U.S. Army Corps of Engineers (9th Cir. 2010) 607 F.3d 570.)

Continue Reading Ninth Circuit Upholds Application of Percentage Methodology to Determine Whether There Has Been an Adverse Modification to Critical Habitat

Sacramento County released the general strategy component of its Climate Action Plan (“CAP”) in May of 2009. A workshop on Wednesday August 25, 2010 will focus on strategies for the implementation component of the CAP. The workshop will take place on August 25, 2010 at 3:00 p.m. in the Board of Supervisors Chambers at 700 H Street, Sacramento, California 95814. More information is available on Sacramento County’s Sustainability Web Page.

By Leslie Z. Walker

In a case with a curious procedural posture, the Court of Appeal, First Appellate District, ruled that the Department of Water Resources is a “Person” for the purposes of Fish and Game Code section 2080 and thus is prohibited from taking an endangered or threatened species under the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal.App.4th 969.

Continue Reading Department of Water Resources is a “Person” for Purposes of the California Endangered Species Act

By Glen Hansen

In Pinnacle Museum TowerAssn. v. Pinnacle Market Development (UC), LLC (D055422, July 30, 2010), 2010 Cal.App. LEXIS 1261, the California Court of Appeal for the Fourth Appellate District held that an arbitration provision in a declaration of covenants, conditions and restrictions (CC&R’s) recorded by a condominium project developer did not constitute an “agreement” sufficient to waive the constitutional right to jury trial for construction defect claims brought by the homeowners association against the developer.

Continue Reading Arbitration Clause in Condominium Project CC&Rs Unenforceable in Construction Defects Action by Homeowners’ Association against Developer

By Cori M. Badgley

Adam Bros. Farming, Inc. (“Adam”) has spent many years and a lot of money battling the County of Santa Barbara (“county”) over its wetlands delineation that covered land farmed by Adam. The saga began in California superior court, in which Adam brought suit claiming violations of the federal Equal Protection, Due Process and Takings clauses and seeking damages and declaratory and injunctive relief. The superior court found the takings claims were not ripe, and Adam amended its complaint to eliminate those claims. At trial, the court awarded Adam declaratory and injunctive relief and a jury awarded Adam damages. On appeal, the appellate court eliminated the damages, but upheld the declaratory and injunctive relief, holding that the wetlands delineation was contrary to law. See $5 Million Judgment Against Santa Barbara County Overturned by Appellate Court.

Continue Reading The Adam Bros. Farming Saga Ends at the Ninth Circuit

By William W. Abbott

While land use litigation is not overly complex, it contains two procedural rules which occasionally trip up project opponents. First, CEQA requires that the petitioner request a hearing within 90 days. Public Resources Code section 21167.4 An oral request is insufficient. Second, if the challenge is to a tentative map approval, the petitioner must also obtain and serve a summons. Government Code section 66499.37. In Torrey Hills Community Coalition v. City of San Diego (2010) ___ Cal.App.4th ____, the appellate court affirmed the action of a trial court dismissing a writ petition on both grounds. With respect to the dismissal of the CEQA claim, the court held that an oral request was insufficient as it was non compliant with the statutory obligation to serve the request on all parties. The Map Act dismissal was more intriguing. Petitioner claimed impossibility as a form of relief, based upon declarations establishing that the San Diego superior court routinely declined to issue a summons in cases involving CEQA writs, a scenario we highlighted in an earlier write up. Notwithstanding the evidence that a summons would not have been issued in the case, the appellate court concluded that the petitioner failed to establish sufficient facts to claim impossibility. The appellate court followed its earlier reasoning as set forth in Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, wherein the same court dismissed the related CEQA causes of action, based upon the non compliance with the Subdivision Map Act service rules. While the holding in Friends was published on November 24, 2008, and the 90 day period in Torrey Hills expired on December 15, 2008, there was no evidence that the petitioner had requested a summons between the publication date and end of the 90 day service period and consequently made an inadequate showing of impossibility.

William W. Abbott is a partner at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.