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1. 2 Recent, Key Developments in Endangered Species Act Law & Policy CWAG Annual Meeting July 2010 Richard Frank Executive Director Center for Law, Energy.

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Presentation on theme: "1. 2 Recent, Key Developments in Endangered Species Act Law & Policy CWAG Annual Meeting July 2010 Richard Frank Executive Director Center for Law, Energy."— Presentation transcript:

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2 2 Recent, Key Developments in Endangered Species Act Law & Policy CWAG Annual Meeting July 2010 Richard Frank Executive Director Center for Law, Energy & the Environment Berkeley Law University of California Berkeley, CA 94720-7200 (510) 642-8305 rfrank@law.berkeley.edu www.clee.berkeley.edu In 2010: Visiting Professor | U.C. Davis Law School | (530) 752-7422

3 3 ESA—Key Provisions: § 4: Listing Species § 7: Consultation Process § 9: Prohibitions & Enforcement §10: Exceptions/Alternate Processes

4 4 §4 Listing/De-listing Issues The Polar Bear

5 5 §4 Listing/De-listing Issues The Pika Cf. the Pika listing controversy under California’s state ESA

6 6 §4 Listing/De-listing Issues The Flat-Tailed Horned Lizard Tucson Herpetological Society v. U.S. (9 th Cir. 2009) 566 F.3d 870

7 7 §4 Listing/De-listing Issues The Grizzly Bear

8 8 §4 Listing/De-listing Issues De-listing the Brown Pelican

9 9 §4 Listing/De-listing Issues The Gray Wolf De-listing Reintroduction efforts & controversy

10 10 § 7 Consultation Issues The Bush Administration’s 2009 regulatory change The Obama Administration’s response Current status of § 7 consultation process rulemaking proceedings

11 11 § 7 Consultation Issues A case study of ESA consultation gone wrong? Deepwater Horizon & the Gulf Coast MMS vs. NOAA & the USFWS

12 12 § 9 Enforcement Issues The California Delta, State and CVP Water Projects, Long- Term Drought, Salmon & Smelt, & the “Wanger” Litigation A litigation update Senator Feinstein & the NAS weigh in

13 13 § 9 Enforcement Issues An update from the Pacific Northwest The Snake River The Columbia River © Dave Csonka

14 14 § 10-Exceptions/Alternate Processes The Saga of California’s Bay Delta Conservation Planning Process HCP NCCP (California)

15 15 ESA: Overarching Legal Issues Challenging the Constitutionality of the ESA Commerce Clause Takings Clause

16 16 Commerce Clause Litigation Stewart & Jasper Orchards v. Salazar, 9 th Cir. Docket No. 10-15192; decision below: 663 F.Supp.2d 922 (E.D. Cal. October 8, 2009) Cf. decisions from other Circuits: Alabama-Tombigbee Rivers Coalition v. Kempthorne (11 th Cir. 2007) 477 F.3d 1250 D.C., 4 th & 5 th Circuit decisions (accord)

17 17 Takings Litigation Does application of the ESA to restrict the use or value of private property trigger an unconstitutional “taking” of property, requiring compensation under the Takings Clause & comparable state constitutional provisions?

18 18 The ESA in an Era of Climate Change

19 19 The Ultimate Limits of the Endangered Species Act

20 20 For further information: Richard Frank Executive Director Center for Law, Energy & the Environment Berkeley Law University of California Berkeley, CA 94720-7200 (510) 642-8305 rfrank@law.berkeley.edu www.clee.berkeley.edu In 2010: Visiting Professor | U.C. Davis Law School | (530) 752-7422

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