Rio Grande Silvery Minnow v. Bureau of Reclamation

Apr 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 05-2399, 06-2020 & 06-2021. The Appeals Court sets the stage saying, "This case involves one battle in a prolonged war over a finite and elemental resource -- Rio Grande water. The needs of the plants and animals that depend upon this water for survival are in tension with the needs of the human inhabitants of the Middle Rio Grande Valley (the Valley) who depend upon the water for daily living and commercial and agricultural activities."

 

    Alleging that the Bureau of Reclamation (Reclamation) failed to properly maintain the delicate balance between these counterpoised needs to the detriment of several endangered species, Defenders of Wildlife, Forest Guardians, National Audubon Society, New Mexico Audubon Council, Sierra Club, and the Southwest Environmental Center (the Environmental Groups) sought relief in federal court pursuant to the Endangered Species Act (ESA). Directly at issue is whether Reclamation has discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of the Rio Grande Silvery Minnow (Minnow). The Environmental Groups claim that Reclamation does and that its failure to weigh that discretion in its consultations with the U.S. Fish and Wildlife Service (the FWS) violated § 7 of the ESA.

 

    The majority Appeals Court said in a split ruling, "At the outset, we commend the district court. When confronted with an extended and sometimes acrimonious dispute between bitterly opposed and firmly entrenched interests, it acted impartially, thoughtfully, and thoroughly. We are constrained, however, to disagree with the district court and conclude that intervening events have mooted the Environmental Groups' scope-of-consultation claim under the ESA. We also conclude that the district court erred in denying the appellants' motions for vacatur. . . we dismiss the appeal and remand to the district court to vacate its memorandum opinions and orders of April 19, 2002, September 23, 2002, and November 22, 2005, and to dismiss the Environmental Groups' complaint with regard to their scope-of-consultation claim under the ESA."

 

    In a lengthy dissenting opinion one Justice said, "I believe this case is more than a simple battle about allocating resources between the silvery minnow (and analogously situated plants and animals) and humans. There are a variety of options available,

and the Supreme Court and Congress recognize that 'the value of endangered species [is] incalculable.'"

 

    Access the complete opinion and dissent (click here).

Medina County Environmental v. Surface Transportation Board

Apr 6: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-60108. The Appeals Court explains that the petitioner, the Medina County Environmental Action Association (MCEAA), sought review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB). The Decision granted an exemption under 49 U.S.C. § 10502 that allows the intervenor, Southwest Gulf Railroad Co. (SGR), to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas, without meeting the prior approval requirements imposed by 49 U.S.C. § 10901.

 

    MCEAA petitioned the court directly for review of the Decision. At issue is whether the STB and the second respondent, the United States Fish and Wildlife Service (FWS), complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was "not likely to jeopardize the continued existence of any endangered species" before approving the exemption. 16 U.S.C. § 1536(a)(2). Specifically, MCEAA challenges the respondents' finding that the proposed rail and its "cumulative effects" are not likely to jeopardize the continued existence of the endangered golden-cheeked warbler, which is known to exist in Medina County, and of certain endangered karst invertebrates, which are known to exist in neighboring Bexar County.

 

    The Appeals Court denied MCEAA's petition for review of the Decision and also denied a separate motion to supplement the administrative record. The Appeals Court ruled, "The information that MCEAA urges from the proffered documents can be reduced to a simple proposition: When the golden-cheeked warbler's habitat is marginalized or destroyed by what MCEAA refers to as the 'edge effects' of development -- for example, land clearing, noise, lighting, and vibration -- the warbler will move, if possible, to an area where the habitat is better. All of the survey evidence available to the STB and FWS, however, showed that there were no listed species in the proposed rail and Phase One area -- rendering any analysis of whether the rail line and quarry activities would drive them out of that area superfluous.

 

    "Furthermore, the EIS documents discussed the quality and extent of potential habitat in the proposed rail and Phase One areas and gave extensive consideration to how construction and operations could proceed while best preserving the small amount of 'low quality' habitat present in the Phase One area. The documents with which MCEAA proposes to supplement the administrative record do not contain information potentially adverse to the Decision and do not set out additional factors that the STB and FWS failed to consider. Accordingly, we deny the motion to supplement the administrative record."

 

    Access the complete opinion (click here).

California Trout v. FERC

Jul 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-73664, 07-74494 & 08-71593. According to the Ninth Circuit, the Supreme Court has long stressed that “the formulation of procedures [is] basically to be left within the discretion of the agencies to which Congress [has] confided the responsibility for substantive judgments.” [Citing: Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25 (1978)].

The Appeals Court said, "Agencies must have the ability to manage their own dockets and set reasonable limitations on the processes by which interested persons can support or contest proposed actions. In this respect, an agency’s procedural rules operate much as our own rules of procedure do: we require litigants to observe the orderly procedures of the court, even if such rules occasionally bar inattentive or ill-advised parties from our courtrooms. So long as an agency’s procedural rules do not afford petitioners less protection than the minimum mandated by the Administrative Procedure Act (APA) and the Constitution, we are not free to 'improperly intrude[ ] into the agency’s decision-making process' and second-guess its administrative tradeoffs. Id. at 525.

In the instant case, petitioners California Trout (CalTrout) and Friends of the River (FOR) contend that the Federal Energy Regulatory Commission (FERC, the Commission) applied its rule governing intervention in a license renewal proceeding in an arbitrary and capricious fashion. The Appeals Court, in a split decision said, "Although petitioners have set forth evidence that their late intervention would not prejudice the Commission’s proceeding, under the circumstances we cannot find that the Commission’s decision was an abuse of its discretion. The regulation at issue explicitly confers on the Commission a broad power to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate 'good cause' for its untimely motion. Because we find that the Commission reasonably determined that petitioners lacked good cause for their untimely attempt to intervene, we deny the petition for review."

In its final argument, the majority ruled, "Finally, we observe that the Commission’s procedural rules are no less important -- and, therefore, no less deserving of respect -- than our own code of procedure. Such rules provide for orderly decision-making and constitute advance notice of the process by which our institutions will conduct themselves. The petitioners knew the rules of the game and assumed the risks of their decision not to intervene. The Commission had no obligation, by statute or by rule, to provide relief for petitioners’ failure to intervene in a timely fashion."

The dissenting Justice said, "I respectfully dissent and would grant the petition because the Commission has erected an unreasonably high barrier to good cause for late intervention, and without explanation or justification has departed from its own precedent of routinely granting late intervention where there is no risk of prejudice. In denying Petitioners’ motions for late intervention, the Federal Energy Regulatory Commission (the Commission) has arbitrarily imposed a good cause requirement far more stringent than indicated by analogous precedent and at odds with the liberal standard it has applied consistently in similar cases. Moreover, it should not go unnoticed that in denying leave to intervene, the Commission has silenced any party wishing to advance Petitioners’ environmental concerns."

Access the complete opinion and dissent (click here).

Tucson Herpetological Society v. Salazar (Interior Dept.)

May 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16641. Conservation organizations and individual biologists (collectively Plaintiffs) contend that the Secretary of the Interior’s (the Secretary) decision to withdraw a rule proposing that the flat-tailed horned lizard (the lizard) be listed as a threatened species is contrary to the requirements of the Endangered Species Act (ESA or the Act), and the Administrative Procedure Act (APA). They appeal from the district court’s order granting summary judgment in favor of the Secretary. In a partially split decision the majority Appeals Court reversed in part and remanded.

Plaintiffs objected to the Secretary’s assertion that a Conservation Agreement and management strategy have diminished threats to the lizard’s remaining habitat on public lands, and emphasize the management strategy’s slow and still incomplete implementation. The Appeals Court said the Secretary acknowledges that the Conservation Agreement has not yet been fully implemented, but points to specific conservation benefits that the agreement has achieved since it came into being in 1997. Moreover, the Appeals Court said, the 2003 withdrawal states that its assessment of threats to the species’ current range is not “dependent on full implementation” of the Conservation Agreement’s management strategy. The Appeals Court concluded that "the limited benefits that the 2003 withdrawal points to are supported by the record, and the Secretary did not err in taking the Conservation Agreement into account."

Additionally, Plaintiffs argue that OHV (off-highway vehicle) use in the lizard’s current range presents a much greater threat to the species than the Secretary acknowledges. The majority said, "Plaintiffs’ argument, however, relies on inferences from indeterminate scientific evidence. . . Both Plaintiffs and the Secretary point to scientific studies supporting their respective views on the effects of OHVs, but the merits of the conflicting studies is not a proper subject for this court to resolve." The court relied on the precedent saying "We must defer to the agency’s interpretation of complex scientific data."

Finally, Plaintiffs challenge the Secretary’s treatment of scattered threats posed by energy and mineral development projects, increased Border Patrol activity, and the possible construction of large-scale infrastructure projects in the lizard’s current range. The majority said, "Plaintiffs’ arguments follow the same course as their attack on the agency’s analysis of OHV use. In short, they have not presented conclusive evidence to rebut the Secretary’s determination that such threats, either alone or in concert, are not likely to cause the 'destruction, modification, or curtailment of [the species’] habitat or range.'"

Accordingly, the Appeals Court ruled, ". . .we reverse and remand the judgment of the district court with instructions that the matter be further remanded to the Secretary so that the Secretary can again consider whether to withdraw the proposed listing of
the lizard."

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Center For Biological Diversity v. Marina Point

May 14: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243 & 07-56574. In the case, Marina Point Development Associates, et al (collectively Marina Point) appeal the district court’s judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively the Center) on their claims under the Clean Water Act (CWA), and under the Endangered Species Act (ESA). Marina Point also appealed the district court’s order awarding attorney fees to the Center and the district court’s contempt order. In a partially split decision (on Justice concurring in part and dissenting in part), the Appeals Court vacated the district court’s judgment on the merits and instructed it to "dismiss for lack of jurisdiction." Additionally, the Appeals Court reversed the contempt order and vacated the order awarding attorney fees.

The case involved the bald eagle and protections as it was listed under the ESA. However, the Appeals Court said, "Now that the bald eagle has been delisted, nothing we decide can properly give the Center the relief it sought. If the district court erred, the injunction must fall, but if the district court was correct, the injunction must still fall because no activities by Marina Point could constitute a take within the meaning of the ESA. In fact, in a letter to this court, the Center has conceded mootness."

In its conclusion, the majority said, "The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. . . However, because it lacked jurisdiction over the CWA claims and because the ESA claims have become moot, we vacate its judgment and remand with directions to dismiss for lack of jurisdiction. Concomitantly, we reverse the contempt order. We also vacate the award of attorney fees to the extent that it is based upon the CWA and remand so that the district court can determine what portion of the attorney fee award was based upon the ESA and reenter judgment as to that portion only."

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Miccosukee Tribe of Indians of Florida v. USA

May 5: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10799. The case involves what the Appeals Court says is one of the Corps of Engineers "unplanned environmental consequences” of its efforts to control the “river of grass” or the Everglades, of South Florida that flowed south from Lake Okeechobee to the Florida Bay. More specifically, the case involves the Cape Sable seaside sparrow (the sparrow) that lives primarily in and around Everglades National Park. It was listed as endangered in 1967 and received critical habitat designation in 1977. The fragility of the sparrow as a species stems from two of its attributes. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels.

One of the sparrows subpopulations has decreased from more than 2,600 birds in 1992 to 112 birds in 2006. The Corps’ method of releasing water into the Everglades has been blamed for that decline. Also, at risk is the Everglade Snail Kite, a type of hawk, that was also listed as endangered in 1967 and received critical habitat designation in 1977. During a period of regional drought, Florida’s total kite population declined from 3,400 birds in 1999 to 1,700 in 2002, but it appears to have stabilized since then. The problem, of managing the two habitats is that the kites prefer steady and moderate to low water levels above one of the control gates (S-12), while the sparrows prefer low water below the S-12 gates.

The Corps and the Fish & Wildlife Service, consult with each other on habitat management and when a proposed agency action may adversely affect an endangered species or its critical habitat, the Service creates a “biological opinion” determining whether the action would jeopardize the species. Following the development of Corps plans and biological opinions the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging the Interim Plan.

The Court of Appeals ruled that, "We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced. We vacate the district court’s judgment to the extent that it upholds the incidental take statement, but we affirm the judgment in all other respects, and we remand for further proceedings consistent with this opinion."

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Trout Unlimited v. Lohn (National Marine Fisheries Service)

Mar 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35623 & 07-35750. According to the Appeals Court, in this case involving many competing parties, "We must decide whether the National Marine Fisheries Service [NMFS] may distinguish between natural and hatchery-spawned salmon and steelhead when determining the level of protection the fish should be afforded under the Endangered Species Act [ESA]."

By way of background, the Appeals Court explains that Pacific Coast salmon are anadromous fish, meaning that they can survive both in saltwater and in freshwater. The salmon hatch out of eggs laid in freshwater rivers and streams, then migrate often hundreds of miles to the ocean, where they live for years before returning to their natal streams to spawn and to die. Steelhead, a closely related species, perform the same migration but are able to spawn multiple times. In the Pacific Northwest, anadromous salmon and steelhead populate the Columbia River and its tributaries, including the Willamette River, the Snake River, the Okanogan River, and the Yakima River.

The appeals primarily involve NMFS’s decision, in accordance with the 2005 Hatchery Listing Policy, to downlist a population of Upper Columbia River steelhead from endangered to threatened. Trout Unlimited and other environmental conservation organizations brought the action challenging: (1) NMFS’s rejection of Trout Unlimited’s petitions to separate natural fish and hatchery fish into different ESUs [evolutionarily significant units], and (2) the downlisting of the Upper Columbia River steelhead ESU from “endangered” to “threatened.” As part of its second claim, Trout Unlimited argues that the 2005 Hatchery Listing Policy impermissibly requires NMFS to consider the status of the entire ESU rather than just the natural components of the ESU when making listing determinations. Trout Unlimited maintains that both NMFS decisions are arbitrary and capricious and thus unlawful under the Administrative Procedure Act and that both fail to employ “the best scientific and commercial data available” in violation of the ESA.

In the end, the Appeals Court concludes explaining, "In the same way that pruning involves the destruction of some branches of a tree to allow the remaining portions to grow, the § 4(d) regulations at issue here represent the agency’s reasonable judgment
that permitting the destruction of some members of an ESU to enable the remaining portions to flourish. Given the agency’s finding that conservation and recovery efforts may be affected by the yearly variation in size and composition of the ESUs, we cannot conclude that regulatory changes giving the agency the flexibility to manage these variations are arbitrary and capricious. . .Based on the foregoing, the opinion of the district court is affirmed in part, reversed in part and remanded with instructions."

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American Bird Conservancy v. Kempthorne

Mar 11: In the U.S. Court of Appeals, Third Circuit, Case No. 07-4609. In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (FWS) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency.

On June 13, 2006, before the FWS made a final determination, appellants filed a complaint in the U.S. District Court for the District of New Jersey claiming (1) that the denial of emergency rulemaking was arbitrary and capricious, in violation of the Endangered Species Act (ESA), and (2) that the FWS violated the ESA by failing to issue timely findings on the petition.

The FWS issued its final determination -- that the listing of the red knot was warranted but precluded by higher-priority listing activity -- in its periodic Candidate Notice of Review (CNOR) published on September 12, 2006. In response, appellants dismissed their timeliness claim, but persisted with their challenge to the denial of emergency rulemaking. In an opinion and order dated October 11, 2007, the District Court dismissed the complaint for lack of subject matter jurisdiction, finding that the FWS’s denial of the emergency listing request was not reviewable under either the ESA or the Administrative Procedure Act (APA). Given this finding, the District Court did not find it necessary to reach the FWS’s claim that the publication of the warranted but precluded listing determination in the CNOR rendered moot appellants’ challenge to the denial of emergency rulemaking. The appeal followed.

The Appeals Court dismissed the appeal as moot; however, it said, "We note, as we conclude, that appellants have received quite substantial relief. Now that the CNOR has issued, the red knot is on the agency’s watchlist. This means that the emergency monitoring system set forth at 16 U.S.C. § 1533(b)(3)(C)(iii) has become available in the event of exigent circumstances that warrant immediate protection of the red knot."

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Salmon Spawning & Recovery Alliance v. US Customs & Border

Dec 18: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1444. This case concerns the Endangered Species Act (ESA) and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, et al (collectively Salmon Spawning) appeal a final judgment of the Court of International Trade dismissing their complaint against various Federal agencies and officials for lack of subject matter jurisdiction.

On July 15, 2008, the Federal Circuit issued a decision [See WIMS 7/18/08] in which it concluded that the Court of International Trade erred in dismissing the case for lack of standing and remanded to the court to determine in the first instance whether plaintiffs’ claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade. Salmon Spawning & Recovery Alliance v. United States, 532 F.3d 1338 (Fed. Cir. 2008). On August 29, 2008, defendants filed a petition for rehearing for the limited purpose of reconsidering statements made in this court’s original opinion regarding whether the Court of International Trade may exercise “supplemental” jurisdiction pursuant to 28 U.S.C. § 1367(a).

In response Salmon Spawning elected to take no position on the issue presented by the petition. All parties agreed that the relief requested by the petition would not alter the outcome of the appeal. The Appeals Court granted the petition solely to issue a revised opinion. The previous opinion was withdrawn. In its revised opinion the Appeals Court ruled, "the Court of International Trade’s dismissal of plaintiffs’ section 9 claim is affirmed. The court’s dismissal of the section 7 claim for lack of standing is reversed, and the case is remanded to the Court of International Trade to determine whether the surviving claim falls within its exclusive jurisdiction."

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Casitas Municipal Water District v. U.S.

Sep 25: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5153. Casitas Municipal Water District (Casitas) appealed the judgment of the United States Court of Federal Claims granting summary judgment in favor of the government holding that there was no governmental breach of contract and no compensable taking under the Fifth Amendment. The Appeals Court affirmed-in-part, reversed-in-part, and remand the case.

In its opinion summary the Appeals Court said, "In sum, governmental deprivation of some water use rights absent the government’s active or appropriative hand in diverting water for its own or a third party’s consumptive or proprietary use does not amount to a physical taking. The only case holding to the contrary is Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), which its author expressly disclaimed in the present case in light of the intervening Tahoe-Sierra case. Casitas Mun. Water Dist. v. U.S., 76 Fed. Cl. 100, 106 (2007) ('Tahoe-Sierra . . . compels us to respect the distinction between a government takeover of property (either by physical invasion or by directing the property’s use to its own needs) and government restraints on an owner’s use of that property.'). Casitas has been restrained from making full use of its California water license under certain circumstances related to the endangerment of the steelhead trout. When the government requires a usufructuary holder of water rights to allow a specified amount of dam-diverted water to circle back to its natural flow by way of a fish ladder for the purpose of endangered species preservation, a classic regulatory restriction on private property rights to prevent a public harm has occurred. It is logically incongruent to analyze ESA-based land use restrictions as regulatory takings, and ESA-based water use restrictions as physical takings. The government is not appropriating or taking possession of Casitas’ property, but rather is prohibiting Casitas from making private use of a certain amount of the river’s natural flow under a public program to promote the common good. Labeling such an action a physical taking blurs the line Tahoe-Sierra carefully draws between physical and regulatory takings.

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Center for Biological Diversity v. Marina Point Development

Aug 6: In the Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243, & 07-56574. Marina Point Development Associates, et al appeal the district court’s judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively the Center) on their claims under the Clean Water Act (CWA), and under the Endangered Species Act (ESA). Marina Point also appeals the district court’s order awarding attorney fees to the Center and the district court’s contempt order. The Appeals Court vacated the district court’s judgment on the merits and instruct it to dismiss for lack of jurisdiction and reversed the order awarding attorney fees and the contempt order.

By way of background, the Corps granted a permit to Marina Point which authorized it to strengthen the existing shoreline. The permit authorized Marina Point to dredge the adjacent shoreline and the interior of the existing marina, and to use the dredged material as fill for building pads on the land. Marina Point was forbidden, however, from placing rip-rap at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands. In order to protect bald eagles’ seasonal behavioral habits, it was also barred from working during the winter months. Besides the permit from the Corps, Marina Point secured a number of other State and local permits.

On the CWA issues, the Appeals Court said, ". . . in light of the fact that the Corps and Marina Point did act to cease the activities that the Center claimed were wrongful and even acted to effect ongoing repairs for any problems caused by past activities, the district court did not have jurisdiction to hear the CWA action. It should have dismissed the action at the outset. Thus, in this respect the district court’s judgment must fall for lack of jurisdiction, and must be vacated."

On issues relating to the ESA and bald eagles, the Appeals Court said, "Now that the bald eagle has been delisted, nothing we decide can properly give the Center the relief it sought. If the district court erred, the injunction must fall, but if the district court was correct, the injunction must still fall because no activities by Marina Point could constitute a take within the meaning of the ESA. In fact, in a letter to this court, the Center has conceded mootness."

In its ruling the Appeals Court said, "The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. . . However, because it lacked jurisdiction over the CWA claims and because the ESA claims have become moot, we vacate its judgment and remand with directions to dismiss for lack of jurisdiction. Concomitantly, we reverse the award of attorney fees and the contempt order."

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Defenders of Wildlife v. Gutierrez (Commerce Dept.)

Jul 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5278. This case concerns the North Atlantic right whale (Eubalaena glacialis) (right whale) and the role of National Marine Fisheries Service (NMFS) and the Coast Guard in the Federal government’s efforts to protect the species from extinction. Appellants, composed of several environmental groups and one whale researcher, challenged NMFS’s denial of a petition for emergency rulemaking and the Coast Guard’s failure to consider the impact of some of its actions on the right whale. The district court granted summary judgment to the agencies. The Appeals Court affirmed the district court’s grant of summary judgment to the agencies on the challenge to the petition denial but reversed its summary judgment order relating to the Coast Guard’s actions. The case is remanded to the district court for further proceedings.

Appellants challenge the Coast Guard’s actions regarding a "traffic separation scheme process" as violations of ESA sections 7(a)(1), 7(a)(2), and 9. 16 U.S.C. §§ 1536(a)(1), (a)(2), 1538. The district court dismissed this challenge, concluding that the International Maritime Organization, a multinational body, adopted the traffic separation schemes at issue, not the Coast Guard. The parties dispute whether “agency action” or “final agency action” is required in order to bring suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g), based on a violation of ESA section 7(a)(2)’s consultation requirement. Appellants extract a simple “agency action” requirement from the text of ESA section 7(a)(2), which speaks only to “agency action.” Appellees argue that the “final agency action” requirement in the second clause of the Administrative Procedure Act should be read into ESA section 7(a)(2). See 5 U.S.C. § 704. The Appeals Court said, "We find it unnecessary to resolve this issue because we hold that appellants are challenging final agency action by the Coast Guard.

The Appeals Court says that the record shows "quite a different role for the Coast Guard in this process. Most significantly, the Coast Guard is the sole body charged with the duty of promulgating traffic separation schemes. . . traffic separation schemes would normally have recourse under the citizen-suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g), or the Administrative Procedure Act. But if the Coast Guard delegates its responsibility for traffic separation schemes to the International Maritime Organization, and if we accept this delegation as relieving the Coast Guard of any responsibility for them, no such recourse is available."

The Appeals Court rules, ". . . appellants have presented evidence of final agency action in this case. . . Accordingly, appellants have demonstrated final agency action, and the district court erred in granting summary judgment to appellees based on its conclusion that it lacked subject matter jurisdiction."

Groups involved in the lawsuit said it was a major decision in the ongoing battle to save the world's last remaining North Atlantic right whales. The groups included Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy and other whale advocates. They said the Court ordered the Coast Guard to review the impact of shipping traffic lanes on endangered whales which they say is a crucial step towards altering shipping lanes to stop ship strikes in critically endangered right whale habitat.

Robert Dreher, vice president of conservation law for Defenders of Wildlife said, “We applaud the court’s decision. Ship collisions are the greatest threat to the survival of the right whale, so ensuring that the Coast Guard protects the whale in setting shipping lanes is a great conservation victory.” They said ship strikes are the leading cause of injuries and mortalities to the critically endangered North Atlantic right whale. Vessel strikes are known to kill or injure a minimum of three whales each year on the East Coast, and a number of ship strikes are believed to go unreported. Only about 350 North Atlantic right whales remain in existence.

Access the Appeals Court ruling (click here). Access a release from Defenders with links to additional information (click here).

Salmon Spawning & Recovery Alliance v. U.S. Customs and Borders Protection

Jul 15: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1444. The case concerns the Endangered Species Act (ESA) and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively Salmon Spawning) appeal a final judgment of the Court of International Trade dismissing their complaint against various Federal agencies and officials (defendants) for lack of subject matter jurisdiction.

The complaint alleges that the defendants violated their duties under the ESA when they failed to enforce the ban on importing endangered and threatened salmon and steelhead into the United States and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA. The Appeals Court concluded that the Court of International Trade erred in dismissing the case for lack of standing, and remanded the case to the court to determine in the first instance whether plaintiffs’ claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade.

The Appeals Court defines the two specific complaints in the case saying, their [plaintiffs] two-count complaint alleged: (1) “By allowing continued import of ESA-listed salmon and steelhead in violation of § 9 of ESA, the Defendants are jeopardizing the continued existence of the listed salmon and steelhead in violation of § 7(a)(2),” (the “section 9 claim”); and (2) that “it is arbitrary and capricious and not in accordance with law, in violation of the Administrative Procedure Act . . . and a violation of section 7 of the ESA, for the U.S. Customs and Border Protection and U.S. Fish & Wildlife Service to continue to allow the import into the United States of ESA-listed salmon caught in Canada without having completed the consultations required by section 7 of the ESA,” (the “section 7 claim”).

The Appeals Court notes that, "The issue of whether plaintiffs’ section 7 claim falls within the Court of International Trade’s exclusive jurisdiction, or instead should be brought in a district court, is one of first impression for this court and it raises difficult, novel issues concerning the scope of the Court of International Trade’s jurisdiction." In its conclusion, the Appeals Court says, "the Court of International Trade’s dismissal of plaintiffs’ section 9 claim is affirmed. The court’s dismissal of the section 7 claim for lack of standing is reversed, and the case is remanded to the Court of International Trade to determine whether the surviving claim falls within its exclusive jurisdiction."

Explaining further, the Appeals Court says, "If the Court of International Trade determines that the section 7 claim does not fall within its jurisdiction, it should transfer the case back to the District Court for the Western District of Washington. If it concludes that it does have jurisdiction over the claim, it should proceed with further proceedings consistent with this opinion."

Access the complete opinion (click here).

American Wildlands v. Dirk Kempthorne (Interior Dept.)

Jul 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5179. As explained by the Appeals Court, the westslope cutthroat trout has historically inhabited rivers and streams across parts of Montana, Wyoming, Idaho, Oregon, and Washington. Its scientific name, Oncorhynchus clarki lewisi, pays homage to Lewis and Clark, the storied explorers who encountered the fish in 1805 at the Great Falls of the Missouri River. Plaintiffs maintain that interbreeding with other members of the trout family -- a phenomenon called hybridization -- has so imperiled the continued existence of the fish that the government should list it as threatened under the Endangered Species Act (ESA).

On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the Agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case.

The D.C. Circuit said, "Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record." The Appeals Court concluded, "Because American Wildlands has not shown that the Service’s decision to deny listing the westslope cutthroat trout as a threatened species was arbitrary or capricious, and because plaintiffs have not shown that the district court abused its discretion in denying the motion to supplement the record, we affirm the district court in all respects."

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U.S. v. Vasquez-Ramos

Jun 27: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-50553, 06-50694. As explained by the Appeals Court, Mario Manuel Vasquez-Ramos and Luis Manuel Rodriguez-Martinez (Defendants) were charged by information 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."

Defendants claim to have received the feathers during Native American religious ceremonies and to have used them for religious worship. Defendants did not have and could not obtain permits to possess the parts and feathers because they are not members of federally-recognized Indian tribes.

The Appeals Court concluded, "In Antoine we held that individuals like Defendants who are not members of federally-recognized tribes did not have valid claims that their prosecutions under BGEPA violate RFRA. 318 F.3d at 924. Neither removal of bald eagles from the Endangered or Threatened Species List, the Supreme Court’s decision in O Centro Espirita, nor the government’s eagle recovery methods undermine this holding. The district court correctly denied Defendants’ motion to dismiss the information in reliance on the continued viability of Antoine."

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Coos County Board of County Commissioners v. Kempthorne

Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35634. In summary form, the Appeals Court says, "We are asked to decide whether the Fish and Wildlife Service (FWS) has an enforceable duty promptly to withdraw a threatened species from the protections of the Endangered Species Act (the ESA or the Act), 16 U.S.C. §§ 1531-1544, after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty."

The suit rests on the results of a FWS species status review of the marbled murrelet, a rare seabird that nests in mature and old-growth forests. The murrelets living in Washington, Oregon, and California (the tri-state murrelets) are the protected population.
The tri-state murrelets, and only the tri-state murrelets, were listed under the ESA as a “threatened species,” after the detailed consideration required by the statute. The five-year review of the tri-state murrelet listing, released in 2004, concluded that the tri-state murrelets do not meet the definition of a “distinct population segment,” one of the population categories which may be protected under the ESA, but determined that they nonetheless remained threatened.

Coos County maintains that this cautious approach to species protection is illegal, and that, instead, FWS had a mandatory duty promptly to remove the tri-state murrelets from the ESA’s threatened species list, “delisting” the birds, as a result of the Five-Year Review. Seizing on a statutory deadline for “promptly publishing” proposed regulations in response to a citizen petition so warranting, Coos County argues that FWS had such a duty here and must follow the same deadline, even though no petition has been filed. The Ninth Circuit disagreed.

In a 40-page opinion, the Appeals Court concludes, "In sum, our view of Coos County’s suit resembles that of the court in Wyoming v. U.S. Dep’t of the Interior, which also considered an attempt to avoid the petition process through an effort to establish a “mandatory duty to delist” by other means. We are “at a loss to explain the actions of [Coos County].” It could easily have filed a delisting petition -- years ago. 'This action, if it had been taken, would have forced the Federal Defendants to make choices under hard deadlines set by Congress . . . . and much of the Federal Defendants’ arguments presented here would have melted away, allowing this Court to reach the merits of many of [Coos County’s] claims.' If Coos County wishes to force FWS to act swiftly on delisting the tri-state murrelets, the petition process is open to it."

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Humane Society Of The U.S. v. Kempthorne

Jun 3: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 06-5396 & 06-5397. Dirk Kempthorne, Secretary of the United States Department of the Interior (Secretary), the Fish and Wildlife Service (FWS) of the Department of the Interior (Interior) and H. Dale Hall, Director of the FWS (collectively Federal appellants), together with the Safari Club International and Safari Club International Foundation (collectively Safari Club), appeal the district court judgment enjoining the FWS “from authorizing the lethal take of any more gray wolves for depredation control purposes” by the Wisconsin Department of Natural Resources (Wisconsin DNR).

The Humane Society of the United States (Humane Society) and other environmental organizations had sought the injunction because, in their view, the gray wolf, as an endangered species, could not be the object of a lethal depredation control program under the Endangered Species Act (ESA). The district court agreed. While the appeal was pending, Interior removed the gray wolf
population located in the Western Great Lakes Region (which includes Wisconsin) from the endangered species list [72 FR 6052, 2/8/07. The parties agreed that the delisting moots the appeal.

The Federal appellants and the Safari Club have moved to vacate the district court judgment and the Humane Society opposes vacatur. The Appeals Court granted the appellants’ motion and vacated the district court judgment saying, ". . .vacatur was sought by non-governmental intervenors. And 'because the party seeking appellate relief is not the party responsible for mooting the case, the orderly operation of the appellate system is not being frustrated.'"

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Sierra Club v. Flowers (Army Corps)

May 9: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13297. Sierra Club brought the action against the Army Corps of Engineers (Corps) after the Corps granted Rinker Materials and other mining concerns (Miners) Clean Water Act (CWA) permits. The Miners sought to extract high-quality limestone from the “Lake Belt” area -- a stretch of 60,000 acres of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps. The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act (APA). The Miners intervened as defendants, and all parties moved for summary judgment. The district court granted the Appellees’ motion
and found that, for numerous reasons, the Miners’ permits were due to be vacated.

The Appeals Court said, "After reviewing the voluminous record, reading the parties’ briefs, and having the benefit of oral argument, we vacate the district court’s grant of summary judgment and remand this case to the district court to apply the proper APA standard of review to the Corps’s environmental analysis." A two Justice majority ruled further, "The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. . . In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing. . . The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts. Again, we offer no opinion as to whether the Corps complied with NEPA or the CWA during the permitting process. We instead remand to the district court to answer those questions in the first instance, applying the proper standard of review. The APA-CWA judgment, the APA-NEPA judgment, and the Remedies Order are vacated, and the case is remanded for further proceedings consistent with this opinion."

A concurring in part and dissenting in part opinion, the minority Justice said, "Although I agree with much of the majority’s opinion, I must respectfully dissent from its judgment. Specifically, I agree that we have jurisdiction, that the Endangered Species Act claim was mooted, and that the district court’s NEPA analysis was erroneous. But I would affirm the district court’s disposition of the Clean Water Act claim, as well as its remedial decisions. . . I believe the district court correctly determined that the Corps violated the Clean Water Act in the permitting process, I would affirm on that basis the district court’s judgment vacating the permits. . . Although the district court made some misstatements of law in its CWA analysis, I believe they are harmless error and that the record contains a sufficient basis to affirm the judgment. . ."

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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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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.”

Access the complete opinion (click here). Access a release from NWF (click here).