Real Estate, Land Use and Environmental Law Blog - Up-to-date information on Real Estate, Land Use and Environmental Law

Kern County Water Agency v. Watershed Enforcers, No. A117715 (1st Dist. June 17, 2010)

By Keith Garner and Alex Merritt

Last month the California Court of Appeal for the First District held that the California Endangered Species Act ("CESA") prohibits a state agency from taking threatened or endangered species without proper permit authority. In reaching this conclusion, the court resolved an interesting question of statutory construction, finding that a state agency is a "person" for purposes of CESA. The decision also indicates that courts will construe CESA liberally to promote the Legislature's goal of conserving threatened and endangered species.

Arizona Cattle Growers' Ass'n v. Salazar, No. 08-15810 (9th Cir. June 4, 2010)

By Robert Uram, James Rusk & Alex Merritt

The Ninth Circuit Court of Appeals this month decided two key issues related to the designation of critical habitat for species protected under the Endangered Species Act ("ESA"): (1) what constitutes an "occupied" area for purposes of designating critical habitat; and (2) the proper approach to analyzing the economic impacts of a critical habitat designation. The Ninth Circuit ruled for the Fish & Wildlife Service (“FWS”) on both issues, deferring to the agency's interpretation of "occupied" and approving the agency's use of the "baseline" approach.

Butte Environmental Council v. United States Army Corps of Engineers, No. 09-15363 (9th Cir. June 1, 2010)

By Robert Uram, Keith Garner & Brenna Moorhead

In Butte Environmental Council v. United States Army Corps of Engineers, No. 09-15363 (9th Cir. June 1, 2010), the Ninth Circuit Court of Appeals affirmed that it is appropriate for the Corps to consider an applicant’s project purpose, and that an area of a species’ critical habitat can be destroyed without appreciably diminishing the value of the species’ critical habitat overall.

By James Rusk

The U.S. Environmental Protection Agency ("EPA") has proposed to rescind the Clean Water Act ("CWA") section 404 permit for a controversial mountaintop removal coal mining project in West Virginia, more than three years after the U.S. Army Corps of Engineers ("Corps") issued the permit. It would be a rare application of the EPA's "veto" authority to a previously issued permit. When viewed in combination with other pending actions by the EPA, the proposed action appears to signal a decision by the agency to take a more assertive stance toward regulation of mountaintop removal mining operations generally.

By Robert Uram and Keith Garner

The Fish and Game Commission has published a notice of proposed regulatory action and invited interested parties to provide oral or written comments relevant to the proposed action prior to or at its May 5 hearing. The proposed regulation would add the California tiger salamander ("CTS") to the list of species protected under the California Endangered Species Act ("CESA"), but it provides no guidance on how hybrid salamanders would be treated under the rule. Continue Reading Questions & comments

By Robert Uram, Keith Garner and Brenna Moorhead

It was a close call. On March 3, 2010, the California Fish and Game Commission voted 3-2 that listing of the California Tiger Salamander ("CTS") pursuant to the California Endangered Species Act was warranted. The Commission was under court order to accept the listing petition, which it did declaring CTS a candidate species just over a year ago. Now that listing has been determined to be warranted, the listing process ensues. The actual listing action for CTS will not be finalized for months, at a minimum. The state action is in addition to the existing protection under the federal Endangered Species Act. Under federal law, the CTS is protected under three separate listing actions—one for the Sonoma population, one for the Santa Barbara population and one for the remainder of the state under the central California population.

By Robert Uram and Robyn Christo

The United States Fish and Wildlife Service (the "Service") is accepting public comments through November 23, 2009, on its proposed Strategic Plan for Climate Change ("Strategic Plan") and accompanying 5-Year Action Plan ("Action Plan"). Both Plans are part of the Department of the Interior's (the "Department's") commitment to organizing a Department-wide effort to protect the country's water, land, fish and wildlife against the effects of global warming. The Service developed the Plans to provide the basic framework for and specific details of its overall strategy for working with others to "ensure the sustainability of fish, wildlife and habitats in the face of climate change." The Strategic Plan lays out the Service's general climate change goals whereas the Action Plan identifies specific actions the Service will take to accomplish those goals. 
 

Coeur Alaska, Inc. v. Southeast Alaska Conservation Counsel, et al., 557 U.S. ____ (2009).

By Katharine E. Allen and Robert J. Uram

On June 22, 2009, the United States Supreme Court held that the new source pollution standards in Section 306(b) of the Clean Water Act (the “CWA”) did not apply to discharges of slurry from a rehabilitated “froth-flotation” gold mine into a nearby navigable lake. It did so because these discharges are properly regulated under Section 404 of the CWA governing the discharge of dredge and fill materials, rather than by an NPDES permit under Section 402 of the CWA, and because the new source pollution standard in Section 306(b) does not apply to Section 404 permits. The Supreme Court's decision reversed the Ninth Circuit Court of Appeal's determination that the issuance of a permit for the slurry discharges by the United States Army Corps of Engineers (the “Corps”) under Section 404 of the CWA violated the new source performance standard set forth in Section 306 of the CWA. In the dissenting opinion, Justices Ginsburg, Stevens and Souter disagreed with the majority's holding, emphasizing the potentially weighty implication of the outcome, which they argued effectively allowed the operator of the mine to utilize Section 404 of the CWA to evade the more stringent requirements of the new source performance standard.

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. ____, No. 07-1355 (2009)

By Robert J. Uram, Ella Foley-Gannon and James Rusk

On April 1st, the Supreme Court held that the federal Clean Water Act (the “Act”) allows the Environmental Protection Agency (the “EPA”) to use cost-benefit analysis in setting the performance standards that power plants must meet to reduce the impact of cooling water intakes on aquatic organisms. Entergy Corp v. Riverkeeper, Inc., 556 U.S. ____ (2009), reverses a decision of the Second Circuit that held the EPA had unlawfully weighed the costs of environmental remediation measures against their benefits in setting “best technology available” standards for existing facilities. The opinion has major implications because the challenged regulations apply to facilities that account for more than half of the nation’s electricity generating capacity and may allow those facilities to avoid billions of dollars annually in increased compliance costs. The Court’s reasoning also may open the door to use of cost-benefit analysis under the Act in other contexts, such as storm water regulation, where it is not currently considered.

Summers v. Earth Island Institute,___U.S. ___(March 3, 2009, Case No. 07-463)

By Elizabeth S. Anderson

On March 3, 2009, the United States Supreme Court determined that Respondents, a group of organizations dedicated to protecting the environment, did not have standing to challenge certain United States Forest Service (“Service”) regulations respecting salvage timber sales. In reversing the Ninth Circuit, the Court held that while Respondents’ affidavit of a member’s recreational use was sufficient to establish standing initially, once a settlement was reached, the affidavit was insufficient to provide standing to proceed, even though the trial court proceeded to adjudicate the merits of Respondents’ challenge. The Court also held that Respondents’ affidavit that a member had suffered injury in the past from development on Service land, had visited many National Forests, and had plans to visit several unnamed National Forests in the future was insufficient because it failed to allege that “any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [the affiant] to enjoy the National Forests.”

Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers, No. 07-1355 (4th Cir. 2009)

by Robert J. Uram, Aaron Foxworthy, and James Rusk

The Fourth Circuit Court of Appeals recently reversed a District Court decision and upheld a decision by the Army Corps of Engineers (the "Corps") to prepare Environmental Assessments and mitigated FONSIs under the National Environmental Policy Act ("NEPA") for four Clean Water Act section 404 permits issued for mountaintop removal coal mining projects in West Virginia. In Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers, No. 07-1355 (4th Cir. 2009), the court held that the Corps did not err in focusing its NEPA review on the impact of the filling of jurisdictional waters of the United States, and excluding from consideration the impacts on surrounding upland areas from associated mining activities. This decision highlights the ability of the Corps to focus its NEPA review of Section 404 permits on the impacts associated with the fill of jurisdictional waters, rather than on the larger project necessitating the permit.

By Keith Garner

The California Fish and Game Commission (“Commission”), at its February 5, 2009, meeting in Sacramento, accepted for consideration the petition to list the California tiger salamander (“CTS”) under the California Endangered Species Act (“CESA”), and the CTS was declared a candidate species. The Commission had initially rejected the petition, but it had been ordered to accept the petition by an appellate court. The CTS is already listed under the federal Endangered Species Act.

By Robert J. Uram and Keith Garner

On February 5, 2009, the California Fish and Game Commission will consider whether to accept a petition originally filed by the Center for Biological Diversity on January 30, 2004, to add the California tiger salamander (“CTS”) to the state’s list of endangered species under the California Endangered Species Act (“CESA”).  The action of the Commission on the petition is not in doubt—the Commission will accept the petition and the CTS will become a “candidate” species.  The CTS is listed as a federal endangered species in three distinct population segments—Sonoma, Santa Barbara, and Central California.  The state’s candidacy status will cover all CTS populations.

Fairbanks North Star Borough v. U.S. Army Corps of Engineers (Sept. 12, 2008, 9th Cir. No. 07-35545) ___ F.3d ____

By Stephanie J. Helfrich

In Fairbanks North Star Borough v. USACE, 07-35545, the Ninth Circuit held that an approved jurisdictional determination issued by the Army Corps of Engineers is not a final agency action for purposes of judicial review under the Administrative Procedures Act (APA), 5 U.S.C. §704.

Center for Biological Diversity v. Cal. Fish & Game Comm’n, __ Cal.App. 4^th __ (Sept. 2, 2008, Case No. C055059)

By Robert Uram and Keith Garner

On September 2, 2008, the Third District of the California Court of Appeal decided that the California Fish and Game Commission (“Commission”) erred by rejecting at the threshold a petition to list the California tiger salamander (“CTS”) under the California Endangered Species Act ("CESA").  The Commission had rejected the petition in 2004, finding that it provided insufficient information to indicate that listing “may be warranted,” the standard for the accepting a petition for further evaluation under Fish and Game Code section 2074.2.  The petitioner sued, and the trial court granted the petitioner’s request to overturn the Commission’s decision.  The decision has major implications for the administration of the California Endangered Species Act.

Center for Biological Diversity v. Marina Point Development, (Aug. 6, 2008, 9th Cir. Nos. 06-56193, 07-55243, 07-56574) ___ F.3d ____

By Brenna Moorhead

In Center for Biological Diversity v. Marina Point Development, the Ninth Circuit rejected citizen suits against the Marina Point Development Company and others (“Marina Point”).  The Center for Biological Diversity and other environmental organizations (“Center”) had sued Marina Point for violations of the Clean Water Act under the Act’s citizen suit provision. [1] On appeal, the court vacated the district court’s judgment on the merits and ordered the district court to dismiss for lack of subject matter jurisdiction.  The court held that the four 60-day notices sent by the Center to Marina Point and the U.S. Army Corps of Engineers (“Corps”) were insufficient for lack of specificity or untimely because either the alleged violator or the Corps had already responded to alleged violations.

Environmental Protection and Information Center v. California Department of Forestry and Fire Protection (July 17, 2008, S140547) __ Cal.4 ___.

By James Rusk

The state Incidental Take Permit (the “ITP”) and the Sustained Yield Plan (the “SYP”) approved under the Headwaters Agreement of 1996, which allowed the Pacific Lumber Company (“PLC”) to log old growth redwood forests in Humboldt County, are invalid, the California Supreme Court ruled last week.  The Court held the state ITP invalid because it provided “no surprises” assurances that unlawfully limited PLC’s obligation to fully mitigate its impacts on endangered and threatened species.  The SYP was invalid for two reasons: First, the California Department of Forestry and Fire Protection (“CDF”) never approved an “identifiable final SYP,” as required by California law.  Second, the environmental analysis performed by PLC for the SYP did not examine watershed impacts of logging at a sufficiently detailed level.

By Robert J. Uram and Chase Ensign

On May 15, 2008, the Army Corps of Engineers issued a public notice describing and seeking public comment on five templates that seek to standardize the process of obtaining approvals of proposals for mitigation banks.  The templates, which are available for use now, should expedite the review and approval of mitigation bank proposals to offset impacts to waters of the United States under the Section 404 permitting program of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.  The templates are the products of many years of deliberation between the Corps, the Environmental Protection Agency, the Fish and Wildlife Service, the California Resources Agency, the National Marine Fisheries Service, the Natural Resources Conservation Service, and the California Department of Fish and Game.  The documents define the parameters of what credits are available for each mitigation bank and how the mitigation bank will operate.

By S. Keith Garner

On January 28, 2008, the U.S. Army Corps of Engineers modified the procedures for coordinating review of jurisdictional delineations involving significant nexus determinations with the EPA.  Significant nexus determinations are required under the Corps and EPA's joint Rapanos Guidance to determine whether the following aquatic features are jurisdictional under Section 404 of the Clean Water Act:  non-navigable tributaries that are not relatively permanent; wetlands adjacent to non-navigable tributaries that are not relatively permanent; and wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary.

By Robert J. Uram and Aaron Foxworthy

In Northern California River Watch v. City of Healdsburg, the Ninth Circuit held that a man-made pond that (a) contains and is largely surrounded by wetlands, (b) is separated from a traditionally navigable water only be a levee, and (c) shares a significant nexus with the adjacent navigable water can be considered a regulable water of the United States.  (Case No. 04-15442, slip op. at 9373, August 6, 2007).  The Healdsburg decision revised the court’s August 2006 opinion in the case.  (Earlier opinion at 457 F.3d 1023).

U.S. v. Moses, No. 06-30379 (9^th Cir. 2007)

By Stephanie J. Helfrich

In upholding an 18-month prison sentence, plus monetary fines, under the Clean Water Act (CWA) of an eastern Idaho developer who bulldozed a creek bed, the Ninth Circuit held that a seasonally intermittent stream which ultimately empties into a river that is a water of the United States can, itself, be a water of the United States. The Court further held that deposition of materials into the intermittent stream during the 10-month dry season still constituted a discharge of fill into waters of the United States.

By Robert Uram, Ella Foley-Gannon and Aaron Foxworthy

On June 5, 2007, the Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (US EPA) published long-awaited guidance on the United States Supreme Court's decisions in Rapanos v. United States and Carabell v. United States Army Corps of Engineers.  Posted on the agencies' respective web sites, the guidance sets out their interpretation of the Rapanos and Carabell decisions, particularly their effects on the agencies' regulatory jurisdiction under Section 404 of the Clean Water Act (CWA Jurisdiction).

National Wildlife Federation v. National Marine Fisheries Service, No. 06-35011 (9th Cir. 2007)

By Bob Uram and Keith Garner

On April 9, 2007, the Ninth Circuit held that the jeopardy analysis under the Endangered Species Act regulations must consider the effects of an action on a listed species’ chance of recovery in a Section 7 consultation.  The regulations, which were promulgated in 1986, prohibit any agency action “that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild.”  50 C.F.R. § 402.02.  In a challenge to a biological opinion issued for the proposed operations of the Federal Columbia River Power System dams and related facilities, the National Marine Fisheries Service had argued that the restriction bars only actions that will both reduce the likelihood of survival and recovery of the species.  Because a species may survive without recovering to the point where it is no longer imperiled, the requirement to reduce the species’ chance of both survival and recovery was effectively a survival standard.  The Ninth Circuit upheld a district court’s decision invalidating the biological opinion, noting that the agency’s interpretation “reads ‘and recovery’ entirely out of the text.” The decision also contains important guidance on the definition of discretionary federal actions and rejects the NMFS effort to view the scope of the federal action narrowly.

Stockton East Water District, et al. v. United States (February 20, 2007)

By Philip Atkins-Pattenson and Katharine Allen

In this action against the United States, the United States Court of Federal Claims held that the Bureau of Reclamation did not breach several 1983 state water contracts with two California water districts when it withheld water from the New Melones Reservoir for fish and wildlife purposes, as required by the Central Valley Project Improvement Act.  The court further found that the reduction in allocable water did not constitute a taking because the Bureau acted in its commercial capacity when it entered into the contracts, which meant that the plaintiffs’ only remedies were contractual.

By Robert Uram and Aaron Foxworthy

In San Francisco Baykeeper v. Cargill Salt Division, the Ninth Circuit Court of Appeals provided further guidance on the limits of Clean Water Act (“CWA”) regulatory authority.  ___ F.3d ___; Case No. 05-15051, slip op. at 2666 (9th Cir., filed March 8, 2007).  Cargill argued that a non?navigable, non?wetland pond does not fall within the Environmental Protection Agency’s definition of jurisdictional water of the United States simply by virtue of its adjacency to a navigable waterway.  The Court of Appeals agreed, holding that pursuant the agency’s CWA regulations, wetlands are the only waterbodies that  fall within CWA regulatory authority based on their adjacency to navigable waters of the United States.  Since the waterbody in question was a diked pond, not a wetland, the adjacency rule did not apply.  Baykeeper argued that the pond was nevertheless subject to regulatory authority because attendant circumstances indicated it had a “significant nexus” to navigable waters.  The court rejected this argument finding no indication in previous case law that the significant nexus test is intended to apply to waterbodies other than wetlands, and that, in any event, the evidence presented by Baykeeper did not indicate that water ever flowed from the pond to adjacent navigable waters.

By Ella Foley-Gannon and Julie Austin

On March 12, 2007, the U.S. Army Corps of Engineers released new and modified Nationwide Permits (NWP), which authorize dredge and fill activities that will cause minimal individual and cumulative adverse effects.  The revised NWPs include modified versions of several of the existing 43 NWPs, along with 6 new NWPs.  The NWPs include new and revised definitions and will be subject to 28 revised General Conditions.  (Final notice submitted to the Federal Register on March 12, 2007)  The new permits take effect on March 19, 2007 and will expire on March 18, 2012.  Under a grandfathering provision, projects that have commenced or are under contract to commence under prior NWPs will have until March 18, 2008 to complete the activity under the terms and conditions of those NWPs.  In addition, the Los Angeles, Sacramento, and San Francisco Army Corps Districts have published notices of proposed regional conditions that could significantly change the requirements of obtaining NWP coverage in those areas.  (See proposed regional conditions for Sacramento and Los Angeles.)  These regional conditions are still under consideration and no final regional conditions have been issued.  Also, the State Water Resources Control Board and Regional Water Quality Control Boards will consider whether any or all of the NWPs should be certified under Section 401 or whether individual certification for each project authorized under a NWP will be required.

By Robert J. Uram and Aaron Foxworthy

District courts for the Northern District of California and the District of Connecticut recently applied the Supreme Court’s 2006 Rapanos decision to decide whether certain intermittent and ephemeral streams and adjacent wetlands were subject to Clean Water Act regulatory jurisdiction.  (Please click for further discussion of Rapanos).  In both instances, the courts found that plaintiffs had not presented sufficient evidence that the streams or wetlands in question had a significant effect on downstream navigable waters.

National Association of Homebuilders v. U.S. Army Corps of Engineers, 01-274 JR (D. D.C. Jan. 30, 2007)

By Robert J. Uram and Stephanie J. Helfrich

On January 30, 2007, U.S. District Judge James Robertson ruled in favor of several major trade associations when he held that a rule jointly issued by the Army Corps of Engineers and the Environmental Protection Agency defining whether “incidental fallback” that can result from activities such as ditch digging and excavation, and subjecting the activity to Section 404 jurisdiction, was invalid.  Judge Robertson held that the rule does not properly address issues raised by a 1998 D.C. Circuit Court of Appeals Decision (National Mining Association v. United States Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998)) and that the rule violates the Clean Water Act.  This decision coupled with the Supreme Court’s ruling in the Carabell and Rapanos cases leaves the Section 404 program awash with uncertainty.

By Keith Garner

On December 18, 2006, the U.S. Army Corps of Engineers, San Francisco District, announced the publication of the Arid West Interim Regional Supplement ("Interim Supplement") to the 1987 Wetland Delineation Manual ("1987 Manual").  A similar public notice was released by the Los Angeles District on December 22, 2006.  The Interim Supplement provides technical guidance and procedures for identifying and delineating wetlands that may be subject to regulatory jurisdiction under Section 404 of the Clean Water Act within the Arid West Region, which covers all or part of 11 western states, including California.  The Corps believes use of the Interim Supplement will improve the accuracy of wetland delineation in Arid West.

By Bob Uram and Keith Garner

Judge Lloyd Connelly of the Sacramento Superior Court ordered the California Fish and Game Commission to accept the petition to list the California tiger salamander under the California Endangered Species Act. Center for Biological Diversity v. California Fish and Game Commission, No. 05CS00233 (Cal. Super. Ct. Sacramento filed Dec. 14, 2006). Unless the order is stayed pending appeal or special rules are adopted by the Commission, the decision may raise concerns for projects that are currently operating with federal take authorization for CTS.  It is not known if the Commission intends to appeal the decision.

By Robert Uram and Keith Garner

On September 26, 2006, the U.S. Army Corps of Engineers published a notice of its proposal to reissue and modify the existing Nationwide Permits, general conditions, and definitions, and to issue six new Nationwide Permits and one new general condition. The Corps proposes to retain the current acreage limits, but thirty-two of the existing Nationwide Permits and most of the general conditions would be modified in other ways. Some modifications are minor, intended to make the existing text clearer and more concise. Other changes are substantive. Some of the more important proposals are:

By Robert Uram and Keith Garner

Pursuant to its authority under the Clean Water Act, the U.S. Army Corps of Engineers has issued general permits, called Nationwide Permits, for activities that have minimal effect on the environment. Discharges of dredged or fill material in wetlands and other waters of the U.S. are permitted in connection with these activities upon verification by the Corps that an activity qualifies under a Nationwide Permit. The current Nationwide Permits were issued in January of 2002 and are scheduled to expire on March 19, 2007. The Corps has not yet commenced the rulemaking process that is required to reissue Nationwide Permits, and no announcements have been made concerning the Corps' intention or schedule for doing so. Although activities authorized under Nationwide Permits are supposed to finish before the expiration date, verifications are generally issued with a "grandfather" provision that gives activities that have commenced or are under contract to commence before the expiration date an additional year to be completed.

For more information please contact Robert Uram and Keith Garner.  Robert J. Uram is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office.  Keith Garner, AICP, is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office.

By Stephanie Helfrich

In what can be characterized as a win for habitat conservation planning generally, and for development in the Natomas Basin specifically, California's Third Appellate District has just published its August 9, 2006 decision, Environmental Council of Sacramento v. City of Sacramento et al., affirming the trial court's conclusion that the city of Sacramento and Sutter County's certification of the Environmental Impact Report (EIR) for the 2003 Natomas Basin Habitat Conservation Plan fully accounted for the environmental consequences of the HCP and implementation agreement under the California Environmental Quality Act (CEQA), and that the Department of Fish and Game met its responsibilities to protect threatened species through issuance of incidental take permits for the HCP under the California Endangered Species Act (CESA). The court concluded that plaintiffs failed to show an abuse of discretion under either statute.

On June 19, 2006, the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. ___ (2006), which consolidated two Clean Water Act (CWA) challenges to U.S. Army Corps jurisdiction, vacated and remanded both the Rapanos (04–1034) and Carabell (04–1384) decisions to the lower courts for further consideration.  The 5-4 decision resulted in three separate opinions: four Justices voted to severely restrict the scope of the Corps' CWA jurisdiction, four voted to uphold the Corps' current jurisdiction, and one Justice, Justice Kennedy, voted to add a new requirement that the Corps must satisfy, on a case-by-case basis, before it can claim jurisdiction.

By Robert J. Uram and Ella Foley-Gannon

On March 14, 2006, in Center For Biological Diversity v. Bureau of Land Management, et al., 2006 WL 662735 (N.D. Cal.), the United States District Court for the Northern District of California concluded that the U.S. Fish and Wildlife Service (the “Service”) improperly ignored the recovery goal of critical habitat in finding that there were no additional regulatory benefits to be gained by designating critical habitat in areas that were ultimately excluded. Additionally, the Court concluded the Service improperly considered economic impacts of critical habitat designation that are coextensive with restrictions resulting from the listing of milk-vetch in excluding significant areas from the final critical habitat designation.

By Robert Uram

The House has passed H.R. 3824, the Pombo ESA bill, by a vote of 229-193. Before voting on the bill, the House defeated, 216-206, a substitute introduced by Rep. George Miller (D-Calif.) and other representatives. 36 Democrats joined 193 Republicans in voting for the Pombo bill. Opposing were 158 Democrats and 34 Republicans, and one Independent.

By Robert Uram

On September 22, 2005, the House Resources Committee passed by a 26-12 margin H.R. 3824, the Threatened Endangered Species Recovery Act of 2005 ("TESRA"). TESRA represents the most significant effort to modify the Endangered Species Act ("ESA") in over a decade. TESRA is currently scheduled for debate and possible amendment before the full House on September 28 or 29, 2005.

By Doug Van Gessel

On August 4 the California Supreme Court ruled, in Grafton Partners v. Superior Court (Pricewaterhouse Coopers LLP), 2005 DJDAR 9387 that California contractual provisions in which the parties thereto pre-agree to waive the right to a trial by jury are unenforceable. The unanimous opinion stated that a right to a jury trial is a fundamental constitutional entitlement that cannot be waived in advance of a dispute between the contracting parties unless such a waiver is permitted by statute. Thus, the court has left the door open for the legislature to pass a statute allowing such waivers, and the forum for interests pursuing this debate will likely shift to the legislature now.

By Robert Uram and Ella Foley-Gannon

In a ruling with broad implications for land development in California, the Ninth Circuit Court of Appeals recently overturned the U.S. Fish and Wildlife Service's longstanding interpretation of the Endangered Species Act's requirement to prevent adverse modification of designated critical habitat.

By Robert Uram and Keith Garner

On September 3, 2004, the California tiger salamander (abystoma californiense) became protected throughout California under the Federal Endangered Species Act as a threatened species. Previously, the Federal Endangered Species Act had only protected the California tiger salamanders if they were found in either Sonoma County or in Santa Barbara County. Because of the extensive range of the California tiger salamander and its life history and habitat needs, this could be one of the most significant recent listings in terms of impact to the California economy.

By Robert Uram

In Westlands Water District v. Hoopa Valley Tribe, filed July 14th, 2004, the Ninth Circuit Court of Appeals affirmed a district court ruling that set aside two conditions included in nonjeopardy biological opinions as non-discretionary "reasonable and prudent measures." The biological opinions were issued by the Fish and Wildlife Service and the National Marine Fisheries Service for tribal and federal agency plans to redirect Trinity River water to revive three listed fish species.