ELR Citation: 41 ELR 20084
No(s). 08-15780 (9th Cir. Jan 26, 2011)

The Ninth Circuit amended dicta set forth in its prior opinion at 40 ELR 20233, which held that property owners and three employees of the California Department of Fish and Game did not violate the ESA when they dug up and removed Sebastopol meadowfoam—an endangered plant species—from privately owned wetlands. The amended language clarifies that although the court stated in Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 37 ELR 20202 (9th Cir. 2007), that Justice Kennedy's concurrence in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006) provided the "controlling rule of law" for that case, the court did not foreclose the argument that CWA jurisdiction may also be established under the plurality’s standard in Rapanos.