Replies

We’ve had protection of endangered species rulings in practically every state in the Union.

However, even the most liberal Appeals Court Circuit in the land can sometimes surprise:
Ninth Circuit Dismisses Action Alleging San Francisco Violated the Endangered Species Act

In a three-page memorandum decision, the United States Court of Appeals for the Ninth Circuit dismissed Wild Equity and other groups’ appeal from a lower court decision, dismissing as moot a lawsuit alleging that the City and County of San Francisco (“San Francisco”) violated the Endangered Species Act’s take prohibition as a consequence of its continuing operations of the Sharp Park Golf Course. (2015 U.S. App. LEXIS 4854 [pdf].)

The lower court dismissed the action on the grounds that the Fish and Wildlife Service issued a biological opinion and incidental take statement covering golf course operations. Wild Equity appealed, arguing that the incidental take statement does not become effective until the consulting agency – here, the Army Corps of Engineers – takes action by issuing the Clean Water Act (“CWA”) section 404 permit sought by San Francisco. While the appeal was pending, the Corps issued a CWA section 404 permit to San Francisco. Nonetheless, Wild Equity pursued the appeal, arguing in the alternative that the case falls within an exception to the mootness doctrine as a situation capable of repetition, yet evading review.

In a unanimous decision, the Ninth Circuit panel rejected Wild Equity’s contentions concluding that the case did not meet either of the two prongs of the Supreme Court’s capable of repetition exception. The court went on to state: “The issuance of the ITS and CWA permit have [ ] fundamentally changed the legal landscape within which the parties are operating, reducing the likelihood that this issue will arise again between these particular parties.”

Nossaman served as outside counsel to the City and County of San Francisco in this matter.