Michigan Gambling Opposition v. Kempthorne

Apr 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5092. As explained by the Appeals Court, in 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Allegan County, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Tribe), to construct and operate a Class III casino. The decision followed Federal recognition of the Tribe in 1998.

A non-profit Michigan membership organization -- Michigan Gambling Opposition (MichGO) -- sued the Secretary of the Interior, the Bureau of Indian Affairs (BIA) and the National Indian Gaming Commission (NIGC) (collectively the DOI) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (NEPA), and that section 5 of the Indian Reorganization Act (IRA), was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appealed the decision.

As BIA studied the Tribe’s proposal, it prepared an environmental assessment (EA) under the auspices of NEPA. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (FONSI) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.

MichGO filed its lawsuit in June 2005, and on the NEPA matters alleged that the preparation of a FONSI rather than an environmental impact statement (EIS) violated NEPA. MichGO contended that the Tribe’s casino is large and controversial, and that the DOI is thus required by law to prepare a full EIS. To support its contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,” distributed to regional directors by the BIA, which provides that proposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS. MichGO maintains that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if mandated by internal DOI guidelines such as the Checklist.

The Appeals Court, with one Justice dissenting in part on non-NEPA issues, held that DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. On the NEPA issue, the Appeals Court said, "The premise underlying MichGO’s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. . . The DOI complied with these requirements when it established its NEPA procedures, now codified in its manual. . . These procedures do not encompass the Checklist. . . The manual does, however, include lists of activities that under its procedures normally require or do not require an EIS or EA.. . . Gaming activities are not included in these lists. In these circumstances, the section 1501.4(b)-(c) process -- EA preparation followed by a decision on whether to prepare an EIS -- is applicable. The DOI followed these procedures and lawfully determined not to prepare an EIS on the basis of the EA."

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National Wildlife Federation. v. National Marine Fisheries Service

Apr 24: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-35011 & 06-35019. According to the Appeals Court the consolidated appeals involve another round in the complex and longrunning battle in the Pacific Northwest over salmon and steelhead listed under the Endangered Species Act (ESA).

The action brought by the National Wildlife Federation and other plaintiffs (collectively NWF), deals with a November 2004 Biological Opinion (2004 BiOp) addressing the effects of proposed operations of Federal Columbia River Power System (FCRPS or Columbia River System) dams and related facilities on listed fish in the lower Columbia and Snake Rivers.

The 2004 BiOp, issued by the agency formerly known as the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NMFS, now NOAA Fisheries), found that proposed FCRPS operations for 2004 through 2014 would not jeopardize the thirteen area salmonid species that are listed as threatened or endangered, nor adversely modify their critical habitat. NMFS and the State of Idaho (collectively NMFS) appeal from the district court’s determination that the 2004 BiOp was structurally flawed and from certain portions of its remand order. The Ninth Circuit affirmed the district court determination and said, "Its rejection of the 2004 BiOp was entirely appropriate, and it did not abuse its discretion in entering the remand order."

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Piney Run Preservation v. County Commissioners (Carroll Co. MD)

Apr 23: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1348. As explained by the Appeals Court, Piney Run is a small stream with its headwaters near the border of
Carroll and Baltimore counties in Maryland. For the second time, the Piney Run Preservation Association (the Association) has filed a citizen suit under the Clean Water Act (CWA) alleging that the County Commissioners of Carroll County are violating the CWA by discharging treated wastewater from the Hampstead Wastewater Treatment Plant into Piney Run.

The Association specifically contends that the temperature of the discharged effluent at times exceeds the thermal limitation set forth in the County’s National Pollutant Discharge Elimination System (NPDES) permit. On the County’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district court found that the Maryland Department of the Environment (MDE) was "diligently prosecuting" a CWA enforcement action against the County for violating the NPDES permit. Consequently, the court held that the Association was barred by 33 U.S.C. § 1365(b)(1)(B) from maintaining this suit. The Association appealed the order of dismissal, arguing that the district court erred in its "diligent prosecution" determination.

The Appeals Court affirmed the decision of the district court saying, ". . .a CWA enforcement action will be considered diligent where it is capable of requiring compliance with the Act and is in good faith calculated to do so. Based on the record before us, we hold that the Association has failed to meet its high burden of establishing that the MDE enforcement action does not satisfy this standard.

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Benzman v. Whitman

Apr 22: In the U.S. Court of Appeals, Second Circuit, Case Nos. 06-1166, 06-1346, 06-1454. This interlocutory appeal and cross-appeal present issues concerning individual and governmental agency liability, in the aftermath of the 9/11 attack, for alleged breach of duties owed to a putative plaintiff class of people who reside, attend school, or work in lower Manhattan or Brooklyn. The principal claim is that Government officials misled the plaintiff class members by stating that the air quality in the period after the destruction of the World Trade Center towers was safe enough to permit return to homes, schools, and offices.

The Appeals Court indicates that the core of the Plaintiffs’ substantive due process claim is that Whitman should be held personally liable for damages because she knew of the dangers posed by WTC dust and yet issued and approved a series of press releases that “falsely represented to the Plaintiffs and the putative Class that the air in and around Lower Manhattan was safe to breathe.”

The Appeals Court ruled, "Whether or not Whitman’s resolution of such competing considerations was wise, indeed, even if her agency’s overall performance was as deficient as the Plaintiffs allege, she has not engaged in conduct that “shocks the conscience” in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause. . .

"Although the complaint contains numerous allegations that various employees within EPA were aware of data indicating health risks, there is no allegation that Whitman, from whom damages are sought in her personal capacity, was herself aware of such information. Perhaps, as a competent administrator, she should have been aware of significant information known to her
subordinates, but arguably inadequate management of a vast agency of 17,000 employees is not a basis for constitutional tort liability. . . alleging Whitman’s personal liability for damages for a denial of substantive due process, must be dismissed."

The Appeals Court concluded saying, "We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance. . . Accordingly, the case is remanded with directions to dismiss the Complaint."

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Seven Up Pete Venture v. Schweitzer (Governor MT)

Apr 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35384. The Appeals Court indicates that the primary question before the court is whether the Eleventh Amendment precludes Federal jurisdiction over an action seeking compensation under the Fifth and Fourteenth Amendments for a taking of property by a State.

Seven Up Pete Venture (the Venture) and other plaintiffs acquired leases of Montana State property for the purpose of mining gold, silver and other trace minerals. Subsequently, voters of Montana enacted Initiative 137 (I-137), which banned open-pit mining for gold or silver by the cyanide heap leaching process. The Venture then brought the reverse condemnation action in Federal district court against the Governor of Montana and the Director of the Montana Department of Environmental Quality in their official capacities.

They argued that Initiative 137 effected a regulatory taking of their property, for which the State of Montana must pay just compensation under the Fifth and Fourteenth Amendments of the United States Constitution. At the same time, the Venture brought a reverse condemnation action in Montana State court. The Venture then obtained a stay of the Federal proceedings pending resolution of the State claims. After the Montana Supreme Court rejected the Venture’s claims, the district court dismissed the Federal takings claims under the Eleventh Amendment and, in the alternative, under the "doctrine of issue preclusion." The Venture then appealed that dismissal.

The Ninth Circuit said in its ruling, "We join a number of our sister circuits and hold that the Eleventh Amendment bars a reverse condemnation action brought in federal court against state officers in their official capacities. We therefore affirm the district court’s dismissal of the Venture’s takings claims on that ground without reaching the question of issue preclusion."

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International Tech. Corp. v. Secretary of the Navy

Apr 18: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1276. The case involves a claim for breach of a cost-plus-fixed-fee contract for treatment of contaminated soil at a Navy facility in Stockton, California.The contractor, International Technology Corporation (ITC), sought to recover additional soil treatment expenses incurred by a subcontractor, Terra Kleen Response Group, Inc. (TK), because of unexpectedly high concentrations of clay in the treated soil. The Armed Services Board of Contract Appeals (Board) held that ITC was not entitled to an award of costs and also determined that ITC was not entitled to damages for breach of the contract. The Federal Circuit affirmed the Boards decision.

The Federal Circuit said, "we conclude that ITC has not established that there was any representation in the contract documents as to the clay content of the overall stockpile of contaminated soil and, alternatively, because ITC has failed to establish that it would have been reasonable for TK to rely on any such representation under the circumstances.

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Kotrous v. Bayer Cropscience

Apr 17: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-15162, 06-16019. The case involves the Circuit Court's reconsideration of the continued viability of its opinion in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), in light of the Supreme Court’s most recent precedent addressing the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) -- i.e. United States v. Atlantic Research Corp., 127 S. Ct. 2331, 2333 (2007) [See WIMS 6/12/07]. Sections 107 and 113(f) of CERCLA, “allow private parties to recover expenses associated with cleaning up contaminated sites.”

U.S. v. Atlantic Research Corp., the Supreme Court held that § 107(a) provides “so-called potentially responsible parties (PRPs) . . . with a cause of action to recover costs from other PRPs,” whereas § 113 provides an action for contribution. In so holding, the Ninth Circuit said, the High Court "undermined Pinal Creek’s holding that § 107 entitles PRPs to seek only contribution, not cost recovery, from other PRPs. To the extent, therefore, that Pinal Creek conflicts with Atlantic Research, we conclude that Pinal Creek has been overruled."

The Appeals Court explained further that its opinion addressed two separate appeals, in separate actions, seeking recovery of costs associated with the cleanup of hazardous waste sites. In the first appeal, James Kotrous sued numerous defendants, including Bayer Crop-Science, Inc., seeking contribution under CERCLA for costs he had incurred in cleaning soil and groundwater contamination on land he owned. The district court denied Bayer’s motion to dismiss Kotrous’ claim under CERCLA § 107 for contribution. It then granted Bayer’s motion for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

In the second appeal, Adobe Lumber, Inc., the owner of contaminated land, sued the owners of a dry cleaning business run on the property, as well as prior landowners, chemical and equipment manufacturers, and the City of Woodland, for contribution for costs Adobe had incurred in dealing with the contamination. The district court denied the defendants’ motion to dismiss for failure to state a claim. Adobe Lumber, Inc. v. Hellman, 415 F. Supp. 2d 1070 (E.D. Cal. 2006). The district court subsequently certified its order for appeal and the Appeals Court agreed to hear both interlocutory appeals.

The Ninth Circuit concludes, "Atlantic Research overruled our holding in Pinal Creek that an action between PRPs is necessarily for contribution. Under Atlantic Research, Kotrous and Adobe are entitled to bring a claim for recovery of costs under § 107(a), even if they are PRPs. The Supreme Court’s holding, however, has made it clear that they must seek cost recovery under § 107, not contribution under § 113, because they have not been subject to an action under § 106 or § 107. In each of these appeals, the judgment of the district court is vacated and the case remanded for further proceedings. Each party shall bear its own costs on appeal.

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U.S. v. Vasquez-Ramos

Apr 10: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-50553 & 06-50694. Defendants were charged for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA). They moved to dismiss the information claiming that prosecuting their possession of the feathers and talons violated the Religious Freedom Restoration Act (RFRA).

The Appeals Court said, "In United States v. Antoine, 318 F.3d 919, 924 (9th Cir. 2003), under nearly identical facts, we held that there was no RFRA violation. Antoine remains binding law in our circuit, and we affirm the district court’s order denying Defendants’ motion to dismiss.

In its final argument the Ninth Circuit says, "Defendants contend that Antoine was decided on the incorrect premise that the demand for eagle parts exceeds a fixed supply. They argue that the government could remedy the problem of a demand that outstrips supply by increased diligence in salvage and recovery of eagle carcasses. Even if this were true, RFRA does not require the government to make the practice of religion easier. . . Because the government is not obligated to increase the supply of available carcasses, Defendants cannot be heard to complain that their rights under RFRA are violated by the government’s refusal to expand its collection and distribution practices.

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Esso Standard Oil Co. v. Lopez-Freytes

Apr 10: In the U.S. Court of Appeals, First Circuit, Case No. 07-1218. The case is an appeal from the Puerto Rico district court's issuance of an order permanently enjoining the defendants -- several members and officials of the Puerto Rico Environmental Quality Board (EQB) -- from imposing a $76 million fine on the plaintiff, Esso Standard Oil Company (Esso). On appeal, the defendants argue that the district court should have abstained from exercising jurisdiction pursuant to the "Younger abstention doctrine" and, in any event, they say the court erred in concluding that there existed bias necessitating the imposition of the injunction. The Appeals Court affirmed the district court's order.

The case involves an underground fuel storage system at a service station in Barranquitas, Puerto Rico. Beginning in 1979, Esso had leased storage tanks and other fuel supplies to the station and in 1991 replaced the entire underground storage system. Between August 1998 and October 1999, the EQB issued three orders directing Esso to test the fuel storage system. Those investigations revealed and recovered about 550 gallons of spilled fuel.

Despite Esso's efforts to comply with the EQB's directives, the EQB issued a show cause order on May 21, 2001, proposing a $76 million fine against Esso for its failure to notify the EQB upon initial discovery of the fuel leakage and its failure to timely investigate, clean up, and remedy the harm. In September 2002, the EQB initiated hearings on this proposed penalty against Esso. The hearings were marked by contentious debates and allegations of severe bias.

The Appeals Court said, "Not only is the defendants' argument utterly unsupported by the law, but we have already rejected it. . . [in a previous appeal] Last time, we properly concluded that the bias stems from the potential financial benefit to the EQB's budget as a result of an imposed fine. . . The district court concluded that the contractual relationship between the EQB and the Hearing Examiners exhibited structural bias on account of both the method by which the Hearing Examiners receive assignments and because of the particularities within the pay structure. We agree. . . This case involves evidence that the EQB's
decisionmaking process with respect to Esso is constitutionally infirm. The serious harm inflicted upon Esso is not outweighed by the EQB's concern that this injunction may alter the perceived strength of the EQB's governance. . . "

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Commonwealth of Massachusetts v. U.S. NRC

Apr 8: In the U.S. Court of Appeals, First Circuit, Case Nos. 07-1482, 07-1483. In the case the Commonwealth of Massachusetts wants to make sure that the U.S. Nuclear Regulatory Commission (NRC) will consider the Commonwealth's safety concerns about treatment of spent fuel rods before the NRC decides whether to renew the operating licenses of two nuclear energy plants -- the Pilgrim plant in Plymouth, MA; and the Vermont Yankee plant in Vernon, VT, which is within ten miles of the Massachusetts border. The licenses were originally issued in 1972 and will expire in 2012; the re-licensing proceedings have been initiated and are ongoing.

Massachusetts indicates that old assumptions about safe storage of spent fuel rods -- on which the NRC has relied since at
least the early 1970s -- no longer hold. They claim that more recent studies and changed circumstances indicate an increased risk that the plants' method of storing spent fuel rods will lead to an environmental catastrophe. Massachusetts also raises its concern that the plants' method of storing spent fuel leaves the plants vulnerable to terrorist attack.

Both sides agree that the safety issues raised are deserving of careful consideration. Both sides also agree that the Massachusetts is by law permitted to raise its various concerns by "some path" and to obtain judicial review of any NRC decision that adversely affects its interests in this matter. The question argued in this case is whether Massachusetts has, "from the regulatory maze, chosen the correct path for doing so." Massachusetts insists it has chosen the appropriate path, indeed, the only one available to it -- i.e. participating directly in the re-licensing proceedings as a party.

The NRC says the Commonwealth has chosen the "wrong path, indeed, one precluded by its regulations." The Agency also says that another option is available, is the proper path to be followed, and will adequately protect the state's interests.
According to the NRC, the Commonwealth must abandon its attempt to attain formal "party" status in the licensing proceedings and instead seek to participate in those proceedings as an "interested governmental entity."

The First Circuit rules that Massachusetts "has chosen the wrong path in seeking to raise the safety issues as a party in the licensing proceedings and deny its petition. We also bind the NRC to its litigation position. . . this leaves the Commonwealth free to follow the NRC's preferred path if it so chooses. To the extent the Commonwealth seeks an order from this court interfering with the NRC's ongoing re-licensing proceedings by imposing decision-making timetables on the agency, we issue a very brief stay but otherwise decline to issue such relief."

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Rick's Mushroom Service Inc. v. U.S.

Apr 2: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5137. The case is an appeal from the United States Court of Federal Claims pertaining to a cost-share agreement between the government and Rick’s Mushrooms, Inc. (Rick’s) for implementing conservation practices in a facility for recycling of mushroom waste. Rick’s seeks indemnification from the government for costs incurred in defending and settling claims by a third party for violation of certain State and Federal environmental laws. The Court of Federal Claims dismissed the action for lack of subject matter jurisdiction. The Federal Circuit affirmed that decision.

As noted by the court, mushroom farming is a major economic activity in Chester County, Pennsylvania. Historically, the organic by-product waste of mushroom farming, known as "spent mushroom substrate" (SMS), was dumped in nearby woods or streams, resulting in severe nitrogen pollution. Rick’s operates an SMS transfer facility, which processes SMS by leaching out the excess nitrogen and then recycling it as potting soil or other products. Following a dispute regarding contamination and proper permitting, and an order by the district court, Rick’s agreed to settle the case for $950,000. Thereafter, the Natural Resources Conservation Service (NRCS) drafted a rehabilitation plan and a plan for a roof structure to help eliminate some of the problems with waste discharge. The NRCS did not indemnify Rick’s for its losses in the litigation and did not pay for the new roof structure.
On November 4, 2005, Rick’s submitted a claim under the Contract Disputes Act (CDA) to the contracting officer at the NRCS for $5 million in damages. J.A. 188-89. The claim alleged that the NRCS had breached its implied warranty of the specifications, and, as a consequence, Rick’s had incurred additional costs, including attorneys’ fees in defending the lawsuit; the lost value of its contribution to the original design, its substantial design revisions, and the installation of the new roof structure; and its liability for environmental impact. The court further held that, because the contract between Rick’s and the NRCS was a cooperative agreement and not a procurement contract, and there was no basis for jurisdiction under the CDA for the breach of contract claim. The court, therefore, dismissed the case for lack of subject matter jurisdiction.

The Federal Circuit said that the Court of Federal Claims did not err in concluding that it lacked subject matter jurisdiction to hear the professional negligence claim; it did not err in holding that it lacked subject matter jurisdiction over Rick’s breach of contract claim; did not err in dismissing Rick’s implied warranty claim for lack of subject matter jurisdiction; and found no abuse of discretion by the Court of Federal Claims in its dismissal of the professional negligence claim. It therefore, affirmed the Court of Federal Claim’s dismissal of Rick’s claims for lack of subject matter jurisdiction.

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Florida Key Deer v. Paulison

Apr 1: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 05-16374. The Federal Emergency Management Agency (FEMA) and the U.S. Fish and Wildlife Service (FWS) appealed an adverse summary judgment and grant of injunctive relief. The district court found that FEMA and the FWS failed to comply with section 7 of the Endangered Species Act, with regard to FEMA’s administration of the National Flood Insurance Program (NFIP) in the Florida Keys. FEMA and the FWS maintain that section 7(a)(2) of the Endangered Species Act does not apply to FEMA’s provision of flood insurance and that FEMA has, in any event, fully complied with section 7. The Appeals Court affirmed the decision of the district court.

The case began in 1984 when in 1984, the FWS determined that FEMA’s administration of the NFIP in the Florida Keys potentially jeopardized the existence of the Florida Key deer by effectively authorizing the development that pushed the Key deer to the brink of extinction. In 1989, however, FEMA refused the FWS’s request for formal consultation, asserting that the ESA did not apply to the NFIP. In 1990, the plaintiffs, “Wildlife Organizations,” filed suit seeking an injunction requiring FEMA to comply with section 7(a)(2) of the ESA by formally consulting with the FWS about the impact of its administration of the NFIP on the Key deer. The Wildlife Organizations adopted the FWS’s argument that the NFIP encouraged new development that threatened the meager population of 250–300 Key deer with extinction.

Subsequently, FEMA consulted with the FWS regarding the impact of the NFIP on the Key deer and nine other endangered or threatened species. In 1997, the FWS issued its opinion, which found, among other things, that the NFIP, as administered in the Florida Keys, jeopardized the continued existence of the Key deer and eight other listed species. In accordance with its regulations and the ESA, the FWS recommended “reasonable and prudent alternatives” (“1997 RPAs”) to the manner in which FEMA administered the NFIP to avoid placing the Key deer and other listed species in jeopardy. The Wildlife Organizations eventually amended their complaint and added FWS as a defendant and challenging the adequacy of the 1997 RPAs and their accompanying conservation recommendations.

On March 29, 2005, the district court granted the Wildlife Organizations’ motion for summary judgment, finding that FEMA had not satisfied its obligation under section 7(a)(1) to carry out programs to conserve species and that neither FEMA nor the FWS had satisfied their obligations under section 7(a)(2). On September 12, 2005, the district court enjoined FEMA from providing any insurance for new developments in the suitable habitat of the listed species.

FEMA and FWS challenged the district court’s grant of summary judgment and injunctive relief, arguing that: (1) section 7(a)(2) of the ESA does not apply to FEMA’s administration of the NFIP; (2) section 7(a)(2) of the ESA does not require FEMA to perform an independent analysis of the FWS’s proposed “reasonable and prudent alternatives” before adopting them; (3) section 7(a)(1) of the ESA does not require agencies to develop species- and location-specific programs for the conservation of listed species; and (4) the district court exceeded its authority by issuing an injunction that is allegedly inconsistent with the ESA and the NFIA.

In affirming the district court decision the Appeals Court addressed each of the issues and determined that section 7(a)(2) applies to FEMA’s administration of the NFIP; said that FEMA adopted the RPAs the same day that the FWS proposed them and therefore did not perform an independent analysis; does require programs for the conservation of listed species and FEMA's program is "insignificant in its impact"; and the injunction at issue here does not require FEMA to act inconsistently with the command of the NFIA to issue flood insurance in otherwise eligible communities

Wildlife Organizations included the National Wildlife Federation (NWF), Florida Wildlife Federation and Defenders of Wildlife. The groups praised the decision and issued a release stating, “This is a significant victory for the Florida Key Deer and all of America’s endangered species. The court has sent a clear message that our federal government cannot subsidize development in sensitive coastal and floodplain habitats without taking into account the needs of the endangered species that live there. FEMA’s effort to place itself outside the reach of the Endangered Species Act, our nation’s most important wildlife law, has been soundly rejected.”

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