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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.

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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.

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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.

« FWS lists Shovelnose Sturgeon as threatened due to similarity of appearance, declines to list the White-Sided Jackrabbit as threatened or endangered, and undertakes status review on Oregon plants | Main| Feds admit rule in error, but Court denies request to vacate the rule »

In missed deadline litigation, environmental interests advocating action have standing, but property owners seeking to avoid a listing do not.

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In re ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION.
This Document Relates to Center for Biological Diversity v. Salazar, No. 10-CV-00230 (EGS). Misc. No. 10-377 (EGS). MDL No. 2165.
--- F.Supp.2d ----, 2010 WL 3386392 (D.D.C. Aug. 27, 2010)(EMMET G. SULLIVAN, District Judge).

SUMMARY: Pending before the Court is a motion to intervene as of right or, in the alternative, for permissive intervention filed by Tejon Ranch Company, Tejon Ranchcorp, and Tejon Mountain Village, LLC (collectively “TRC”). TRC seeks to intervene in only one of the consolidated cases in this matter: Center for Biological Diversity v. Salazar, No. 10-230, which arises in part from a petition to list the Tehachapi slender salamander under the Endangered Species Act (“ESA”). TRC's motion is opposed by Plaintiff Center for Biological Diversity (“CBD”) and by Plaintiff Wildearth Guardians (“Wildearth”). The federal defendants take no position on TRC's motion. Upon consideration of TRC's motion, the responses and reply thereto, the relevant law, and for the reasons stated herein, TRC's motion to intervene is DENIED.

TehachapiSlenderSalamander3.jpg
The Tehachapi slender salamander is a small, lungless amphibian believed to exist in only two populations in central California-one in Caliente Canyon in the southern Sierras, and the other in the Tehachapi Mountains.  Image from CaliforniaHerps.org

BACKGROUND: On February 28, 2006, the FWS received a citizen petition to list the Tehachapi slender salamander as an endangered or threatened species. See 90-Day Finding on a Petition to List the Tehachapi Slender Salamander (Batrachoseps stebbins) as Threatened or Endangered, 74 Fed.Reg. 18,336 (Apr. 22, 2009) (“90-Day Finding”).  … A portion of the Tehachapi population is found on Tejon Ranch, which is owned by Movant-Intervenor TRC...   On February 17, 2010, Plaintiff CBD filed a complaint in the United States District Court for the Eastern District of California challenging the FWS's failure to act on the Tehachapi slender salamander and listing petitions for six additional species. Ctr. for Biological Diversity v. Salazar, No. 10-401 (E.D. Cal. filed Feb. 17, 2010). TRC filed a motion seeking leave to intervene in that case on April 2, 2010. ...  Before TRC's motion could be resolved, CBD voluntarily dismissed the case and, on April 26, 2010, amended its complaint in a related action pending before this Court to add claims regarding the Tehachapi slender salamander. Specifically, Plaintiff CBD claims that the FWS failed to meet a statutory 12-month deadline to determine whether or not listing of this species is warranted. Plaintiff requests relief in the form of (1) an order declaring that the FWS failed to comply with its statutorily-mandated deadline and (2) an order requiring the Secretary to make the required finding by a date certain. First Am. Compl.  2.

LEGAL TEST FOR INTERVENTION:  Intervention as a matter of right is governed by Rule 24(a) of the Federal Rules of Civil Procedure, which states in relevant part: "On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." ...  In the D.C. Circuit an applicant must meet four criteria to be granted intervention as of right: (1) timeliness; (2) a protectable interest relating to the property or transaction that is the subject of the action; (3) impairment of the ability to protect that interest; and (4) inadequate representation of that interest by other parties. Fund for Animals v. Norton, 322 F.3d 728, 731 (D.C.Cir.2003). In addition to satisfying these criteria, a party seeking to intervene as of right must demonstrate that it has standing under Article III of the Constitution. Id. at 732. Because a prospective intervenor's Article III standing presents a question going to this Court's jurisdiction, see Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002), the Court must address standing before considering the four-part test for evaluating intervention as of right. Fund for Animals, 322 F.3d at 732...  All litigants must demonstrate that they are “entitled to have the court decide the merits of the dispute” in order to properly invoke the jurisdiction of a federal court. Warth v. Sedlin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). At a minimum, an intervenor, like any party, must show (1) an injury-in-fact that is (a) concrete and particularized and (b) actual and imminent, (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

EXCERPT RE: INJURY:  In attempting to demonstrate standing, TRC identifies two potential injuries. First, because Tehachapi slender salamanders are found on TRC property, TRC claims that the outcome of the FWS listing determination for this species may precipitate restrictions on the use of its land and business operations. TRC Mem. at 14, 16. As TRC notes, it is axiomatic that property owners have an interest in a suit that affects their property. Foster v. Gueory, 655 F.2d 1319, 1324 (D.C.Cir.1981). Second, TRC asserts that it could suffer economic losses and additional delays in developing its property if the FWS is forced to render its listing decision on the Tehachapi slender salamander before TRC's proposed conservation plan has been finalized and approved...  With regard to the purported injury to TRC's property interests, the Court finds that TRC has failed to satisfy the causation and redressability prongs of the Article III standing test. TRC's alleged injury is based entirely on the potential substantive outcome of the FWS's listing determination for the Tehachapi slender salamander, which is not before this Court. The case before this Court deals only with the FWS's alleged failure to complete a preliminary step in the listing process within the time period required by law. Because this Court will issue no order directly impacting TRC's use of its property, TRC's claims of injury from restrictions on its property use and business operations bear no relation to the present action.

EXCERPT RE: PERMISSIVE INTERVENTION:  After careful consideration of the parties' positions, the Court finds that allowing TRC to intervene could lead to undue delay and would potentially prejudice the adjudication of the original parties' rights. This matter is currently stayed while the parties pursue settlement negotiations. See Minute Order dated August 5, 2010. Recognizing that TRC's stated purpose in seeking to intervene is, in part, to protect its interests by delaying a 12-month finding on the Tehachapi slender salamander, the Court is unwilling to put TRC in a position to draw out ongoing settlement negotiations and to further delay the resolution of this case.
 
KEITHINKING: Bottom line... According to this case, the Center for Biological Diversity is given standing to sue the Federal Government by alleging that the government must decide to list (or not list) a particular species as threatened or endangered, but a property owner whose land is habitat for that same species has no right to intervene in the proceeding, and can only file suit when the Federal Government actually decides to list the species.  This differentiation between the standing of environmental interests and property interests is reminiscent of the dispute in Bennett v. Spear, 520 U.S. 154 (1997), however, this dispute involves a different section of the ESA, and a citizen suit, as opposed to an APA-based suit.