Nossaman ESA Win for San Luis Obispo County Recognized as a “Top Verdict For 2025”
A Nossaman team led by Paul Weiland and Brian Ferrasci-O’Malley—and including Ben Rubin, Svend Brandt-Erichsen and Rob Thornton—was recognized by Daily Journal in its annual “Top Verdicts” (subscription required) supplement which highlights the most impactful trial outcomes in California federal and state courts in 2025. The Nossaman team was recognized in the “Top Appellate Reversals” category for its win in the Ninth Circuit on behalf San Luis Obispo County.
Daily Journal wrote, “…in December, the Ninth Circuit unanimously vacated a California federal court’s mandatory preliminary injunction delivering a significant victory for the county in an Endangered Species dispute that had threatened the drinking water supply for 50,000 residents.” The matter—San Luis Obispo Coastkeeper et al. v. County of San Luis Obispo—was initiated when the County was sued in federal court by four environmental groups, alleging the County’s operation of Lopez Dam and Reservoir and other public works in the Arroyo Grande Creek watershed violates the Endangered Species Act (ESA) and various state law requirements. Plaintiffs moved for a mandatory preliminary injunction to require the County to change how it operates the dam and reservoir by increasing water releases and to take numerous other steps that plaintiffs contended would benefit South-Central California Coast steelhead in Arroyo Grande Creek.
On the appeal before the Ninth Circuit, Nossaman attorneys argued the district court had applied the wrong legal standard for evaluating mandatory injunctive relief. They contended while the steelhead living in Arroyo Grande Creek, downstream from Lopez Dam would benefit from the injunction, two other ESA-listed species would be harmed: the tidewater goby, listed as endangered and the California red-legged frog, listed as threatened.
Commenting on the team’s strategy, Brian said, “We argued…that the lower court had applied the wrong legal standard for evaluating mandatory injunctive relief given the County had proffered expert evidence that the mandatory preliminary injunction would harm other ESA-listed species. We said the court should have used the full four-part Winter test for preliminary injunctions and considered the balance of equities and public interest factors when deciding whether to issue the injunction.”
The Court agreed, holding “when a district court considers a mandatory preliminary injunction under the ESA and the evidence shows that other listed species may also be affected, the TVA exception to the Winter test does not apply.”
The 3-judge panel stated that applying the U.S. Supreme Court ruling in TVA v. Hill, as done in the lower court case, would risk “turning the ESA on its head” and change the law’s command to prioritize endangered species into “a one-way ratchet, favoring one listed species without any room to weigh the cost to another.”
“I believe our winning argument was how it would be illogical and contrary to Congressional intent to apply the TVAexception to fact patterns where there are ESA-listed species on both sides of the scale,” Brian added.
Commenting on his reaction to the verdict, Paul said, “It was incredibly gratifying to be able to share the good news with everyone. We have a fantastic team at Nossaman that has been working with an exceptional group of county staff and consultants on this litigation.”
