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

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After procedural analysis, District Court dismisses lawsuits over FWS decisions not to designate Florida panther critical habitat

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Conservancy of SW Florida v. U.S. Fish & Wildlife Service, Case 2:10-cv-00106-JES-SPC, Document #100 (M.D.Fla. April 6, 2011)

BACKGROUND: In January 2009, the Conservancy of Southwest Florida (Conservancy) filed a petition with the Service under the ESA.  Service regulations, and the Administrative Procedures Act (APA), asking the Service to establish critical habitat for the Florida Panther. The Sierra Club and numerous other environmental organizations joined in that petition in July 2009.  On February 11, 2010, in three separate but virtually identical letters, the Service denied the Conservancy’s January 2009 petition, the Center for Biological Diversity’s September 2009 petition, and the Sierra Club’s November 2009 petition, and refused to designate critical habitat for the Florida Panther. In denying the petitions, the Service noted that it was in the process of working with several conservation organizations and private landowners in Collier County, Florida “to implement a landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act.” The Service noted that this process, referred to as the “Florida Panther Protection Program,” may provide a framework for conservation and recovery efforts in other locations.  

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The Florida Panther (Puma concolor coryi) was listed as an endangered species in 1967 and has remained on the Endangered Species List. See 32 Fed. Reg. 4,001 (Mar. 11, 1967). In 1969, Congress enacted the Endangered Species Conservation Act, which broadened federal involvement in the preservation of endangered species. Pub. L. No. 91-35, 83 Stat. 275 (1969). The Endangered Species Act of 1973 “represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. at 180.  Photo fromFlorida Department of Environmental Protection.

PLAINTIFFS' COMPLAINT: On June 25, 2010, plaintiffs filed a shotgun four-count Amended Complaint (Doc. #42) alleging that the Service’s denials of plaintiffs’ several petitions to designate critical habitat for the Florida Panther violated the ESA and APA. Count I alleges the denials were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the APA, 5 U.S.C. §706(2)(A), (D). Count II alleges that the denials were in violation of the requirements of § 2, 3, and 7 of the ESA and § 706(2)(A), (D) of the APA. Count III alleges that the denials were in violation of the ESA because they were not based on the best scientific data available, as required by §1533(b)(2). Count IV alleges that the denials were in violation of the ESA because the Service failed to comply with their nondiscretionary duties for designation and revision of critical habitat. Plaintiffs seek a declaratory judgment that the denials of the petition were in violation of the law for the reasons set forth in the Amended Complaint; an order vacating the denials of the petitions; an injunction remanding the matter to defendants and ordering defendants to make all necessary findings, initiate rulemaking to designate critical habitat, and set reasonable The federal defendants filed a motion to dismiss.

EXCERPT RE: COUNT II: No private cause of action is created for simply violating the policy provision in § 1531(c)(1) or the definition of “conserve” and its variations in § 1532(3). Neither provision creates any substantive duties, see Nat’l Wildlife Fed’n v. Marsh, 721 F.2d 767, 773 (11th Cir. 1983), and nothing in the statutory scheme suggests Congressional intent to create a private cause of action for such conduct.

EXCERPT RE: COUNT III: Count III alleges that the Secretary did not comply with 16 U.S.C. § 1533(b)(2), requiring him to designate and make revisions to critical habitat on the basis of the best scientific data available, and pertinent regulations thereunder. Such a claim is subject to judicial review. Bennett, 520 U.S. at 172. The difficulty with Count III is that, as discussed below, the decision to designate critical habitat for a species declared endangered prior to the 1978 amendments to the ESA is not “not discretionary” within the meaning of § 1540(g)(1)(C)... When passed in 1973, the ESA required the Secretary to determine by regulation whether species were endangered or threatened based upon specific factors and the best scientific and commercial data available, Pub. L. No. 93-205, §§ 3(A), (B), and to publish a list of such species. Id. at § 3(C)(1). Species which had been listed under the Endangered Species Conservation Act of 1969 were deemed to be an endangered species under the ESA until republished to conform to the classifications under the ESA. Id. at § 4(C)(3).  However, the current version of the ESA, in effect at the time of the petitions in this case, defines “critical habitat,” § 1532(5)(A), then provides: “Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph.” 16 U.S.C. § 1532(5)(B)… The plain meaning of the “may” in the context of the ESA is that designation of critical habitat for prior listed species is discretionary with the Secretary… Because the designation of critical habitat for species such as the Florida panther is discretionary, Count III fails to state a claim upon which relief may be granted.

EXCERPT RE: COUNT IV: Count IV also alleges that defendants did not comply with certain non-discretionary duties under the ESA. Specifically, Count IV alleges that the Secretary failed to comply with 50 C.F.R. § 424.14(d)... The Court finds that Count IV fails to state a claim upon which relief may be granted, and it therefore will be dismissed. Section 2(b)(2) of the 1982 amendments does not state that plaintiffs’ proposals or petitions to designate critical habitat are subject to the same procedures as if the Secretary had made the proposal for such designation...  The only requirement is that “the petition will be given prompt consideration and the petitioner will be notified promptly of action taken.” 43 C.F.R. § 14.3. The face of the Amended Complaint establishes that these procedures were followed.

EXCERPT RE: COUNT I and COUNT II ADMINISTRATIVE PROCEDURE ACT CLAIMS: the Secretary is not required to designate critical habitat for the Florida panther. The only action that is judicially reviewable is whether the petition was given prompt consideration and plaintiffs were promptly notified of the action taken. This is a severely limited review, but a review nonetheless. Therefore, the Court finds that plaintiffs can state a claim for relief under the APA. However, just because plaintiffs’ can state a claim for relief under the APA regarding their petition does not mean that they did state a claim in the instant case... The Court finds that the Service substantially complied with 43 C.F.R. § 14.3 and gave prompt consideration to their petition and promptly notified them of its action. Thus, plaintiffs have failed to state a claim for relief pursuant to the APA.

KEITHINKING: For species listed not pursuant to the ESA, but rather, pursuant to its predecessor laws, the standards for designation of critical habitat are different. Litigation, even in the factual context of the Florida panther, cannot rewrite the legislation, and its discretionary standards.