Norman D. James

Selective Experience

• Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 664 (2007). Served as lead counsel for industry trade associations challenging EPA's approval of Arizona's application to administer the NPDES program under CWA Section 402(b); the Supreme Court reversed the Ninth Circuit and held that ESA Section 7(a)(2) applies only where there is discretionary federal involvement or control.
• Ctr. forBio. Diversity v. U.S. Fish & Wildlife Serv., 441 F. Supp. 3d 843 (D. Ariz. 2020), rev'd 67 F.4th 1027 (9th Cir. 2023). Represented Rosemont Copper Company in challenging the critical habitat designation for the jaguar over the company's mining project; the Ninth Circuit reversed the district court, holding that the designation was arbitrary and capricious because the agency failed to explain why the area was essential to jaguar conservation.
• Ctr. forBio. Diversity v. U.S. Fish & Wildlife Serv., 409 F. Supp. 3d 738 (D. Ariz. 2019), aff'd 33 F.4th 1202 (9th Cir. 2022). Represented mining company in multiple federal lawsuits challenging permits for a proposed open-pit copper mine in southern Arizona, including a Mining Law of 1872 claim that the company's use of unpatented mining claims for tailings and waste rock disposal was unlawful; the district court ruled against the company on that ground and the Ninth Circuit affirmed.
• Ctr. forBio. Diversity v. U.S. Dep't of Interior, 623 F.3d 663 (9th Cir. 2010) (decision on rehearing). Represented mining company in challenge to a 10,000-acre land exchange with the Bureau of Land Management; the Ninth Circuit held that the environmental impact statement (EIS) failed to properly evaluate the effects of the exchange because the agency did not consider its authority to restrict mining under surface use regulations at 43 C.F.R. subpart 3809 and remanded to BLM for further analysis.

Endangered Species Act Litigation

• Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 664 (2007). Served as lead counsel for industry trade associations challenging EPA's approval of Arizona's application to administer the NPDES program under CWA Section 402(b); the Supreme Court reversed the Ninth Circuit and held that ESA Section 7(a)(2) applies only where there is discretionary federal involvement or control.
• Ctr. forBio. Diversity v. U.S. Fish & Wildlife Serv., 441 F. Supp. 3d 843 (D. Ariz. 2020), rev'd 67 F.4th 1027 (9th Cir. 2023). Represented Rosemont Copper Company in challenging the critical habitat designation for the jaguar over the company's mining project; the Ninth Circuit reversed the district court, holding that the designation was arbitrary and capricious because the agency failed to explain why the area was essential to jaguar conservation.
• Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir. 2010). Represented livestock operators in challenging the critical habitat designation for the Mexican spotted owl; the Ninth Circuit clarified that 'occupied areas' are those the species uses with sufficient regularity that it is likely to be present during any reasonable span of time, limiting the Fish and Wildlife Service's ability to declare land occupied when designating critical habitat.
• National Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003). Represented of industry trade associations in successfully challenging the Fish and Wildlife Service’s listing of the Arizona population of the pygmy-owl as an endangered species and the designation of critical habitat for that species; as a result of this litigation, the pygmy-owl was delisted in 2006.
• Arizona Cattle Growers’ Ass’n v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir. 2001). Represented livestock operators in successfully challenging incidental take statements restricting livestock grazing on federal grazing allotments; the Ninth Circuit affirmed the district courts’ judgments, holding that the Service acted unlawfully because there was no evidence that listed species would actually be “taken” in violation of ESA Section 9.

Mining Law & Federal Permitting

• Ctr. forBio. Diversity v. U.S. Fish & Wildlife Serv., 409 F. Supp. 3d 738 (D. Ariz. 2019), aff'd 33 F.4th 1202 (9th Cir. 2022). Represented mining company in multiple federal lawsuits challenging permits for a proposed open-pit copper mine in southern Arizona, including a Mining Law of 1872 claim that the company's use of unpatented mining claims for tailings and waste rock disposal was unlawful; the district court ruled against the company on that ground and the Ninth Circuit affirmed.
• Ctr. forBio. Diversity v. U.S. Dep't of Interior, 623 F.3d 663 (9th Cir. 2010) (decision on rehearing). Represented mining company in challenge to a 10,000-acre land exchange with the Bureau of Land Management; the Ninth Circuit held that the environmental impact statement (EIS) failed to properly evaluate the effects of the exchange because the agency did not consider its authority to restrict mining under surface use regulations at 43 C.F.R. subpart 3809 and remanded to BLM for further analysis.
• Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th Cir. 2005). Represented real estate developer in successfully opposing challenge to a permit issued by the Army Corps of Engineers under Section 404 of the CWA, based on alleged violations of the ESA.
• Quechan Indian Tribe v. U.S. Dep’t of Interior, 547 F.Supp.2d 1033 (D. Ariz. 2008). Represented water district in successfully opposing challenge by an Indian tribe to the transfer of reclamation project works and facilities, and associated land and rights-of-way, by the Bureau of Reclamation; the court rejected the Tribe’s claims that the transfer would violate NEPA and the National Historic Preservation Act.