Endangered Species

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By William W. Abbott and Nathan Jones

While green energy is on the rise, there are casualties of even the most well-intentioned projects. In Center for Biological Diversity v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, the Court of Appeal, First Appellate District upheld the dismissal of a public trust enforcement action against the owners and operators of wind turbines in the Altamont Pass area (the “Operators”). According to the Center for Biological Diversity (“CBD”), the turbines injure and kill raptors and other birds. Ultimately, CBD was successful in clarifying that the birds are a public trust resource of all the people of the state. However, the appellate court held that the proper party to bring an action against is the public agency with permitting authority, rather than the Operators.
Continue Reading Wildlife Protected by the Public Trust Doctrine, but Doctrine Can Only be Enforced Against Public Agencies

By William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized areas, developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species.
Continue Reading Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

By Janell M. Bogue

In the case of Coos County Board of County Commissioners v. Kempthorne (June 26, 2008) 2008 U.S.App.Lexis 13475, the United States Court of Appeals for the Ninth Circuit reiterated that the appropriate way for a species to be removed from the protections of the Endangered Species Act (“ESA”) is via a petition for delisting. The court held that there is no mandatory duty imposed upon the U.S. Fish and Wildlife Service (“USFWS”) to delist species through the five year review process. (See 16 U.S.C. § 1533(c)(2).)…
Continue Reading Ninth Circuit Court of Appeals Confirms That USFWS Has No Ongoing Duty to Remove Endangered Species from List; Appropriate Method is to Petition for Delisting

By Cori Badgley

On April 16, 2008, the United States District Court for the Eastern District of California issued an opinion in Pacific Coast Federation of Fishermen’s Associations v. Gutierrez (Case No. 1:06-cv-00245) that invalidated portions of the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) for the Long-Term Central Valley Project and State Water Project Operations Criteria Plan (“2004 OCAP”).
Continue Reading California’s Water Supply Potentially Endangered by Invalid Biological Opinion

By Janell M. Bogue

Recently, the Third Appellate District held that the Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018.
Continue Reading HCPs and Hawks and Snakes…Oh My!

By Cori Badgley

The Endangered Species Act (“ESA”) is a complex web of provisions that are not always easily interpreted. A recent case decided by the 9th Circuit Court of Appeals, Center for Biological Diversity v. U.S. Fish and Wildlife Service (2006) 450 F.3d 930, illustrates the intricacies of the ESA and provides a warning to all those wishing to claim violations of its provisions – do your homework.
Continue Reading Recent Case Illustrates Great Deference Given to Fish and Wildlife Service’s Interpretation of Endangered Species Act

by William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized metropolitan areas developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This paper discusses recent CEQA cases dealing with these questions and provide insight on how to address endangered species concerns in order to comply with CEQA.
Continue Reading Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update