Protected Species

As protected species and commercial interests increasingly intersect in urban centers, in the ocean, near watersheds or industrial operations, and on agricultural land, businesses must respond to the social, economic and regulatory uncertainties of balancing economic growth and species protection.  While compliance with the federal Endangered Species Act (ESA) and state species protection regulations has long been a part of conducting business in the western U.S., ESA compliance is now an emerging issue throughout the country. 

Key Contacts

Sarah Stauffer Curtiss Partner Portland, OR
Barbara D. Craig Partner Portland, OR
Michael J. Sherman Partner Sacramento, CA
Cherise M. Gaffney Partner Seattle, WA
See all contacts
Overview

ESA issues can arise in various contexts such as project finance, commercial banking, real estate transactions and project development, and in both urban and rural landscapes.  When projects are subject to species protection requirements as well as other federal, state and local environmental compliance obligations, it is critical to be familiar with the regulations, agency processes and stakeholders involved.  Having advisors who are familiar with your industry, and whose constructive working relationships with regulators, public officials and other stakeholders assist in identifying the common ground needed to achieve your business goals, is a great way to avoid legal problems down the road.

Our nationally recognized ESA attorneys have the compliance and litigation experience to anticipate, reconcile and address competing interests through effective compliance strategies and, when necessary, litigation. Our experience across all areas of environmental regulation is a distinct advantage,

Some of our attorneys have backgrounds in science, engineering, geology, economics and public policy and bring these valuable experiences to each matter.  Many worked for the National Marine Fisheries Service (NMFS), U.S. Fish and Wildlife Service (USFWS), Bureau of Reclamation, U.S. Forest Service, U.S. Department of Justice (Environment and Natural Resources Section), U.S. Environmental Protection Agency, and Northwest Power and Conservation Council and are periodically invited by the government to help shape ESA policy.

Our Services

  • ESA Section 7 consultation
  • ESA compliance
  • Conservation plans and mitigation strategies
  • Bald and Golden Eagle Protection Act compliance
  • Migratory Bird Treaty Act (MBTA) compliance
  • Bird and Bat Conservation Strategies compliance
  • Marine Mammal Protection Act compliance (MMPA)

ESA Section 7 Consultation
We combine an understanding of our clients’ businesses with scientific knowledge of species and habitats to shepherd projects through authorized incidental take statements.  Working with your development teams and technical consultants, we negotiate compliance requirements, draft compliance provisions to ease implementation, and represent you before the agency, at hearings and at public approval meetings.  We’re effective negotiators and advocates who can achieve your development goals while protecting and restoring species habitats.

ESA Compliance
ESA compliance obligations continue after a project is approved and built.  We advise you through implementation of ESA compliance requirements that can span decades and cross jurisdictional borders, and we’re always on-call to assist should unexpected circumstances arise.

Avian Species Protection
Avian species protection is growing in complexity.  The Bald and Golden Eagle Protection Act, the MBTA, and related bird and bat conservation plans are tools designed to ensure protection and conservation of avian species.  We provide strategic advice to ensure compliance and implementation of effective avoidance, minimization and mitigation measures.

Litigation
Some projects cannot avoid challenges from local and/or national environmental groups, neighborhood groups and project competitors.  We can help you strategically and proactively plan for such challenges by developing an administrative record that can withstand challenges and litigation.  When an appeal is initiated, we work to minimize delays and ensure the ultimate compliance requirements are reasonable.

We lead successful challenges to unsupported species listings and critical habitat decisions, including cases of first impression under the ESA and MMPA.  We defend you against government agency and citizen prosecutions that allege unlawful take of protected species, and challenges to ESA compliance strategies.  Our success is rooted in our significant experience litigating against agency decisions restricting land development, water use, timber harvests and hydropower operations at the administrative agency level, and through all state and federal judicial levels of appeal.

Matters
  • Counseled the Alaska Oil and Gas Association and the American Petroleum Institute in a successful challenge to the listing of Arctic ringed seal stocks as “threatened” under the ESA. The court ruled that NMFS made an arbitrary and capricious decision when it issued a rule listing the Arctic ringed seal as “threatened” because the rule was based on speculation regarding future climate change effects and the listing decision demonstrated no serious threat to the Arctic ringed seal population
  • Advised a wave energy developer on strategic permitting issues for a wave energy project on the Oregon coast, including federal licensing, ESA and MMPA permitting, and coastal zone issues; negotiated and drafted agreement with federal, state and non-governmental stakeholders resolving all issues for a 35-year license term.
  • Represent Northwest RiverPartners as intervenor-defendants in the longstanding challenge by environmental groups to the ESA biological opinion for the federal Columbia River Hydropower System.
  • Advised numerous wind energy companies on ESA, MBTA, BGPA and National Environmental Policy Act compliance for operation of existing wind projects as well as development of wind projects, including the development of Bird and Bat Conservation Strategies and Eagle Conservation Plans.
  • Represented various corporations and individuals in connection with federal criminal and civil penalty investigations, including investigations by the USFWS and NMFS, and under a variety of federal statutes, including the MBTA, Bald and Golden Eagle Act, and ESA.
  • Counseled the Hawaii Longline Association (HLA) in the successful defense of advocacy group claims that regulation of a fishery violates the Magnuson-Stevens Fishery Conservation and Management Act, international treaty provisions and other federal laws.The court ruled in favor of HLA and NMFS and dismissed the lawsuit.
  • Assisted in the development of a Safe Harbor Agreement (SHA) and issuance of a Section 10(a)(1)(A) Enhancement Survival Permit from the USFWS for SDS Company LLC and Broughton Lumber Company’s timberlands in Washington for the northern spotted owl.
  • Counseled a mid-Columbia River Public Utility District regarding multiple aspects of ESA compliance, including development of precedent-setting Habitat Conservation Plans and ESA Section 7 consultations, and preparation of hatchery genetic management plans and associated Section 10 permitting processes.
  • Represented the Washington State Snowmobile Association in a successful challenge to lynx critical habitat designation in federal court in Wyoming.
  • Assisted Alaska Oil and Gas Association in the development of an ESA 4(d) Rule strategy for the polar bear and coordinated with the State of Alaska and the USFWS. We successfully defended challenges by various environmental advocacy groups to the polar bear ESA “threatened” listing and 4(d) Rule. Successfully defended challenges to an incidental take regulation issued under the MMPA by the USFWS. The upheld regulations addressed the potential incidental take of Pacific walrus and polar bears associated with Arctic oil and gas operations.
  • Assisted the HLA in a regulatory process in which the NMFS authorized regulations implementing a Magnuson Act amendment involving the Hawaii-based longline swordfish fishery, engaged in associated ESA Section 7 consultation, and received an incidental take permit from the USFWS under the MBTA. We represented HLA in the successful defense of claims by two advocacy groups challenging the regulations and the MBTA permit under the Magnuson Act, the Administrative Procedure Act, the ESA and the MBTA. This case is currently pending on appeal in the Ninth Circuit.
  • Represent the Hawaii longline fishing industry in the negotiations and development regarding a take reduction plan for false killer whales under the MMPA.
  • Counseled an Alaska Native regional corporation in the successful defense to plaintiffs’ claims that a Clean Water Act site-specific water quality criterion harmed native fish stocks.
Team
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