Northern California River Watch v. Wilcox

Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15780, appealed from United States District Court for the Northern District of California. Northern California River Watch (River Watch) appeals the district court's grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively Defendants). River Watch contends that Defendants violated the Endangered Species Act (ESA). Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to "take" a listed plant on areas under federal jurisdiction.

 

    The district court granted Defendants' motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were "areas under Federal jurisdiction." The Appeals Court consider the meaning of the term "areas under Federal jurisdiction" as used in ESA § 9. River Watch argued that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as "waters of the United States" by the Army Corps of Engineers.

 

    The United States, representing the interests of the Department of the Interior's Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that the Appeals Court must apply the deference principles set forth in Chevron, U.S.A.,

Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an "area[ ] under Federal jurisdiction."

 

    The Appeals Court indicates that, "Although we agree that the term 'areas under Federal jurisdiction' is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (FWS), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that 'areas under Federal jurisdiction' does not include the privately-owned land at issue here. We therefore agree with the district court's ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants."

 

    The Appeals Court said additionally, "We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret 'areas under Federal jurisdiction' as not including all of the 'waters of the United States' as defined by the CWA and its regulations. Although our ruling will constitute 'binding law,' we recognize that under Brand X, we are not the 'authoritative interpreter' of 'areas under Federal jurisdiction.' See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'

 

    Access the complete opinion (click here).