Norman D. James
Mr. James’ practice emphasizes natural resources and environmental law, including federal laws and programs such as the Endangered Species Act, the National Environmental Policy Act (NEPA), the Clean Water Act, the Mining Law of 1872, the National Forest Management Act, and the Federal Land Policy and Management Act. His work focuses on litigation in the federal courts (including appeals) and dealing with federal agencies (e.g., Fish and Wildlife Service, Forest Service, Bureau of Land Management and Army Corps of Engineers) on rulemaking proposals, permitting and other administrative and regulatory matters. Mr. James’ clients include the Arizona Cattle Growers’ Association, ASARCO LLC, Freeport Minerals Corporation, the National Association of Home Builders, and Rosemont Copper Company.
[+] Representative Cases
Representative Environmental and Natural Resources Cases
National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). Lead counsel for industry trade associations in an action challenging EPA’s approval of Arizona’s application to administer the NPDES program under Section 402(b) of the Clean Water Act. The Supreme Court, in reversing the Ninth Circuit, held that Section 7(a)(2) of the Endangered Species Act (“ESA”) applies only when there is discretionary federal involvement or control in an action. Applying this rule, the Court further held that EPA’s discretion in approving Arizona’s program was limited to ensuring that the statutory criteria in the Clean Water Act were met, and, as a consequence, EPA could not take into account the impacts on endangered species.
Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160 (9th Cir. 2010), cert. denied, 131 S. Ct. 1471 (Feb 22, 2011). Representation of the Arizona Cattle Growers’ Association in challenge to the designation of over 8 million acres of land as critical habitat for the Mexican spotted owl under Section 4 of the ESA. Although the challenge to the critical habitat designation was not successful, the Ninth Circuit’s opinion clarified that “occupied areas” are areas which “the [species] uses with sufficient regularity that [the species] is likely to be present during any reasonable span of time,” which limits the ability of the Fish and Wildlife Service to declare land to be occupied when designating critical habitat.
Center for Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633 (9th Cir. 2010) (decision on rehearing). Representation of ASARCO LLC in connection with challenges to a 10,000-acre land exchange with the Bureau of Land Management. On appeal, a majority of the Ninth Circuit panel determined that the EIS failed to properly evaluate the effects of the exchange. ASARCO moved for rehearing en banc. Although that motion was denied, the court issued a new opinion which significantly narrowed its original ruling. On remand to the district court, ASARCO was able to prevent the underlying environmental impact statement from being vacated. (Mr. James currently is representing ASARCO in connection with the preparation of a supplement to the EIS addressing the deficiencies identified by the Ninth Circuit.)
White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033 (9th Cir. 2009). Representation of developers in connection with challenges to a permit issued by the Army Corps of Engineers under Section 404 of the Clean Water Act. The principal claim was that the Corps failed to evaluate the effects of the entire real estate project under NEPA and should have prepared an EIS. The district court granted summary judgment in favor of the Corps and the developers, and dismissed the claims. The Ninth Circuit reversed, holding that the Corps improperly limited its NEPA analysis to areas within its jurisdiction.
Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th Cir. 2005). Representation of a real estate developer in connection with a challenge to a permit issued under Section 404 of the Clean Water Act, based on alleged violations of the ESA. Prior to issuing the permit, the Corps determined that the project would not affect the cactus ferruginous pygmy-owl, and refused to initiate consultation with the Fish and Wildlife Service under Section 7 of the ESA. The district court and the Ninth Circuit held that the Corps was responsible for determining whether the proposed action would affect the species and that consultation was not required.
National Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003). Representation of the National Association of Home Builders and state home builders associations in an action challenging the Fish and Wildlife Service’s listing of the Arizona population of the cactus ferruginous pygmy-owl as an endangered species, and the agency’s subsequent designation of critical habitat for that species. As a result of this litigation, the pygmy-owl was delisted in 2006. A subsequent challenge to the delisting by environmental groups was rejected. See National Ass’n of Home Builders v. Kempthorne, No. CV 00-0903 (D. Ariz.).
Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Service, 273 F.3d 1229 (9th Cir. 2001). Representation of the Arizona Cattle Growers’ Association in two lawsuits challenging incidental take statements issued by the Fish and Wildlife Service under the ESA that restricted livestock grazing on numerous federal grazing allotments in eastern and southern Arizona. The Ninth Circuit affirmed the district courts’ judgments, holding that the Fish and Wildlife Service’s incidental take statements were unlawful because there was no evidence that listed species would actually be “taken” in violation of Section 9.
Current and Recent Regulatory Matters
Mexican Wolf Experimental Population Rule. Representation of national and state cattlemen’s associations in connection with the proposed delisting of the gray wolf and development of a new experimental population rule for the Mexican wolf.
ASARCO Ray Land Exchange. Representation of a mining company in connection with the development of a supplemental EIS on the impacts of a land exchange to comply with Center for Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633 (9th Cir. 2010) (amended on rehearing).
Rosemont Copper Project. Representation of a mining company in connection with obtaining permits for the development and operation of an open pit copper mine, including compliance with NEPA and Section 7 consultation on the effects of the action on listed species and critical habitat.
Cactus ferruginous pygmy-owl listing determination. Representation of home builders associations in connection with opposing the relisting of the pygmy-owl in response to a petition filed by environmental groups. In October 2011. the Fish and Wildlife Service determined that listing of the pygmy-owl is not warranted.
Comments on recent listing and critical habitat proposals. Representation of mining and natural resource users in commenting on proposed rules listing species and designating critical habitat under the Endangered Species Act, including the yellow-billed cuckoo, jaguar, Gunnison sage-grouse, wolverine population in the continental United States, southwestern willow flycatcher, and spikedace and loach minnow.
[+] Articles and Presentations
Critical Habitat Then and Now, presented at the Endangered Species Act Conference, Austin,Texas, CLE International (2014).
The Endangered Species Act: An Overview of Current Issues and Trends, CLE International 19th Annual Conference (November 15, 2012)
Managing to Burn: Redirecting the ESA’s Focus From land Use Regulation to Species’ Recovery, presented at Species Protection: Critical Legal Issues conference, Washington, DC, ALI-ABA Environmental Law Institute (2012).
Listing Species Under the ESA, presented at the Endangered Species Act Conference, Sacramento, California, CLE International (2011).
Compliance with Federal Wildlife Laws, presented at the Solar and Wind Energy Development Conference, Phoenix, Arizona (2010).
The Mexican Spotted Owl Controversy: An Example of the ESA’s Dominant Role in Federal Land Use Planning, presented at the 2010 Martz Annual Summer Conference: The Past, Present, and Future of Our Public Lands, University of Colorado School of Law, Boulder, Colorado (2010).
Critical Habitat: An Overview of How Critical Habitat Is Designated and Its Regulatory Impact, presented at Endangered Species Act Conference, CLE International (2009)
National Association of Home Builders v. Defenders of Wildlife – Limits on the Applicability of Section 7 of the Endangered Species Act, presented at Western Water Law Conference, CLE International (2008)
Section 7 Consultation and Public Citizen: Applying the Correct Scope of Analysis, presented at Species Protection and the Law, ALI/ABA (2006)
The Ninth Circuit Redefines the Scope of Section 7(a)(2) of the Endangered Species Act, presented at the Endangered Species Act, The Seminar Group (2006)
The Listing Process: Science, Politics and Pygmy-Owls, presented at Species Protection and the Law, ALI/ABA (2005)
[+] Professional and Community Activities
Member, Administrative Law Section, State Bar of Arizona
Member, Environmental & Natural Resources Law Section, State Bar of Arizona
Member, Maricopa County Bar Association
U.S. District Court, District of Arizona, 1981
U.S. Court of Appeals, Ninth Circuit Court, 1981
U.S. Supreme Court, 2006
U.S. District Court, District of Colorado, 2007
U.S. Court of Appeals, Tenth Circuit Court, 2008
U.S. Court of Appeals, District of Columbia, 2010
[+] Education and Honors
J.D., University of Utah College of Law, 1981
B.A., Stanford University, 1977
Best Lawyers in America®, Energy Law, Environmental Litigation, Natural Resources Law, and Water Law
Best Lawyers in America®, Lawyer of the Year, Litigation-Environmental, 2013
Chambers USA, Leading Lawyers for Business
Southwest Super Lawyers®, Energy and Natural Resources Law
AV® Preeminent ™ Peer Review Rated (the highest rating available), by Martindale-Hubbell
Arizona's Top Lawyers, AZ Business Magazine, 2014
Norman D. James
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