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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« ESA: More harm than good? | Main| Delisting the bald eagle: an ESA victory? »

No Surprises rules survive District Court scrutiny.

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In Spirit of the Sage v. Kempthorne, a huge community of ESA lawyers spent years arguing the merits of the FWS and NMFS "no surprises" rules, and the related rules governing permit revocation.  In a  nutshell, these rules allow a private landowner to obtain an incidental take permit, accompanied by assurances that in return for completing the permitting process and a habitat conservation plan, FWS and NMFS will not seek additional land, water, money or other resources to benefit ESA-listed species (except in very limited circumstances).  However, if the existence of a species is jeopardized by the continuation of the permitted activity, the permit can be revoked.  

In a recent decision, -- F.Supp.2d -- (Aug. 30, 2007), 2007 WL 2446209, Wash. D.C. Federal District Court Judge Emmet Sullivan upheld the agency rules.   See links to opinion and related resources.  Notably, the Court rejected the plaintiffs' claims that all incidental take permits must meet a "recovery" standard, instead holding that since Congress authorized the issuance of permits  as long as they do not jeopardize the continued existence of a species, it was reasonable for the agencies to implement rules that used that same standard for revocation.

The merits ruling culminated a ten-year battle over the rules.  See National Association of Home Builders summary of prior decisions.

Further appellate review of this controversial topic is inevitable...

FULL DISCLOSURE.  The author represented the federal agencies in this matter as an attorney for the U.S. Department of Justice.