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For CEMEX, Inc.: JMBM scored a significant victory in the Ninth Circuit Court of Appeals for a mine project, which involved the relationship of the federal Endangered Species Act to state law

On June 5, 2006, JMBM scored a significant victory for the firm’s client, CEMEX, Inc., when the Ninth Circuit Court of Appeals issued a published opinion in Center for Biological Diversity, et al. v. U.S. Fish & Wildlife Service, and CEMEX, Inc. 450 F.3d 930 (9th Cir. 2006). The Center’s lawsuit challenged authorizations by the Service in favor of the Soledad Canyon Sand and Gravel Mining Project, a project proposed by CEMEX, Inc. in Los Angeles County, which was also approved by the U.S. Bureau of Land Management. The underlying action concerned claims relating to alleged failures on the part of the Service in administering the Endangered Species Act in connection with potential impacts to the unarmored threespine stickleback fish. JMBM’s legal team, led by partner Kerry Shapiro, successfully represented CEMEX before both the District Court and the Ninth Circuit, in this case of first impression. The matter concerned the relationship of the federal Endangered Species Act (ESA) to state law — specifically, no prior cases had addressed how California’s “fully protected” species statute impacted the Service’s activities when acting under the ESA. The Ninth Circuit affirmed the District Court, and upheld the arguments raised by CEMEX and the Service, on the following two issues: 1. The Service may properly issue authorizations under the ESA allowing “incidental take” of an endangered species, as long as the species as a whole is protected, without first having to assess whether the project also complies with other federal and state laws, including California’s “fully protected” species provisions; and 2. The Service acted properly in deciding not to issue a final rule under the ESA establishing critical habitat for the unarmored threespine stickleback fish, based in part on the fact that the draft rule was proposed twenty-six years ago in 1980 and contained out-of-date information.