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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.

U.S. Supreme Court supports Navy, reverses Nines, in appeal of preliminary injunction affecting sonar operations

11/12/2008

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Winter v. NRDC, No. 07–1239 (S.Ct., November 12, 2008)

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Secretary of the Navy Winter, right, and Admiral Gary Roughead depart the Supreme Court of the United States after Oral Arguments on October 8, 2008. U.S. Navy photo by Mass Communication Specialist 2nd Class Kevin S. O'Brien

FACTUAL BACKGROUND: Plaintiffs contended that Mid-Frequency Active (MFA) sonar can cause serious injuries to marine mammals, including permanent hearing loss, decompression sickness, and major behavioral disruptions including mass strandings.  The Navy, however, adopted several mitigation procedures, including: lookouts, reporting detected marine mammals in the vicinity of the training exercises, and, upon detection of marine mammals, reduction or shut down of sonar.  The Navy completed an environmental assessment pursuant to the National Environmental Policy Act, but Plaintiffs sought a full Environmental Impact Statement, eventually leading the Navy to also obtain authority from the Council on Environmental Quality (CEQ) to implement “alternative arrangements” to NEPA compliance in light of “emergency circumstances.” See 40 CFR §1506.11.3.  

PROCEDURAL BACKGROUND: The District Court granted plaintiffs’ motion fora preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The District Court held that plaintiffs had “demonstrated a probability of success” on their claims.  The Ninth Circuit agreed with the District Court’s holding that the Navy’s EA—which resulted in a finding of no significant environmental impact—was “cursory, unsupported by cited evidence, or unconvincing.” The Court of Appeals further determined that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury. Even under the Navy’s own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals’ behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy’s training exercises was “speculative,” since the Navy has never before operated under the procedures required by the District Court.

SCOTUS OPENING: (Opinion by Chief Justice Roberts): "The plaintiffs complained that the Navy’s sonar training pro-gram harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though that court acknowledged that “the record contains no evidence that marine mammals have been harmed” by the Navy’s exercises. 518 F. 3d 658, 696 (CA9 2008).  The Court of Appeals was wrong, and its decision is reversed."

SCOTUS CONCLUSION: "President Theodore Roosevelt explained that “the only way in which a navy can ever be made efficient is by prac-tice at sea, under all the conditions which would have to be met if war existed.” President’s Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the impor-tance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy."

KEITHINKING: The environmentalists defeat was predictable.  See ESA blawg (Feb. 19, 2008)  The 9th Circuit and District Court simply overreached in granting a preliminary injunction against the use of Naval sonar for anti-submarine warfare training exercises, especially in this procedurally-driven NEPA case, where the White House had weighed in and granted special authority.  Judicial restraint by the Supreme Court was inevitable. See also ESA blawg)(discussing judicial restraint by the 9th Circuit and potential influence of the sonar case)

Still Catching Up on SCOTUS decisions: Home Builders v. Defenders

06/01/2008

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National Association of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007).   In this post related to a recent Supreme Court decision, ESA Blawg contributor Liz Batres explains how the Court analyzed the interplay of the ESA and the Clean Water Act (CWA).  Also consult a recent law review article Jan Hasselman, National Association of Home Builders v. Defenders of Wildlife: Supreme Court’s Endangered Species Act Decision Should Have Limited Impacts, 22 J. Envtl. L. & Litig. 343 (2007)...

Bennett v. Spear: revisiting the jurisprudence of constitutional standing

05/18/2008

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Below is the latest contribution of Liz Batres, proving once again that I am not the only lawyer captivated by the Endangered Species Act.  This time, her SCOTUS summary is on Bennett v. Spear, 520 U.S. 154 (1997).  For two interesting law review articles on the case, visit Sam Kalen, Standing on its Last Legs: Bennett v. Spear and the Past and Future of Standing in Environmental Cases, 13 J. Land Use & Envtl. L.1 (1997), and William W. Buzbee, Expanding the Zone, Tilting the Field: Zone of Interests and Article III Standing Analysis After Bennett v. Spear, 49 ADMIN. L. REV. 763 (1997).  Otherwise...
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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

05/09/2008

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Another Supreme Court case law summary by Liz Batres...  this time, on Lujan v. Defenders of Wildlife, an important case not only for Endangered Species Act followers, but also more broadly to anyone addressing the standing requirement to invoking federal jurisdiction.

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Photo of the nile crocodile, at issue in Lujan, available online from The Nature Conservancy

For the rest of this Lujan summary...

Babbit v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995)

05/05/2008

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Continuing her service to the legal community, ESAblawg contributor Liz Batres submitted the following summary of Babbit v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995), as published by FindLaw

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Photo of Northern Spotted Owl by J&K Hollingsworth, U.S. Fish & Wildlife Service

To see the summary...

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)

04/28/2008

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Adding a new feature to ESA blawg... Supreme Court of the United States (SCOTUS) case law links and summaries (see "Read More" below), authored by ESA blawg contributor Liz Batres.

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)

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Photo of the snail darter, from Alabama Department of Conservation and Natural Resources., available at Outdoor Alabama

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Keith Who?

Keith W. Rizzardi, a Florida lawyer, is board certified in State & Federal Administrative Practice. A law professor at St. Thomas University near Miami and Special Counsel at Jones Foster Johnston & Stubbs in West Palm Beach, he previously represented the U.S. Department of Justice and the South Florida Water Management District. A two-time Chair of The Florida Bar Government Lawyer Section, he currently serves as Chair of the Marine Fisheries Advisory Committee

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Disclaimer

The experience & skills discussed in links below were not reviewed or approved by The Florida Bar. The facts and circumstances of every case are different; each one must be independently evaluated by a lawyer and handled on its own merits. Cases and testimonials may not be representative of all clients’ experience with a lawyer. By clicking the links below, you acknowledge the disclaimer above.

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."

16 U.S.C. §1531(a)

The purpose of the Endangered Species Act is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

16 U.S.C. §1531(b)

Reasons for the ESA

1. ECOLOGICAL: Species have a role in the web of life. Who knows which missing link causes the collapse?

2. ECONOMICAL: Species have actual, inherent, and potential value -- some as food, others as tourist attractions. As Congress said, these species have "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation." 16 U.S.C. §1531(a).

3. MEDICAL: Although perhaps a subset of economics, medical reasons for the ESA deserve special note, because today's listed species could be tomorrow's cure for cancer.

4. MORAL: With each extinction, we take something from others. We must prevent "the tragedy of the commons."

5. THEOLOGICAL: Even the Bible instructed Noah to save God's creatures, male and female, two by two.

Reasons for ESA Reform

1. ECOSYSTEM (MIS)MANAGEMENT. The ESA encourages selective review of individual species needs, even though nature pits species needs against one another. Furthermore, the ESA's single-species focus detracts from efforts to achieve environmental restoration and ecosystem management.

2. SCIENTIFIC UNCERTAINTY: While the ESA requires consideration of the "best available science," sometimes the best is not enough, forcing decisions under great uncertainty. The ESA, however, is generally proscriptive, regulatory, and absolute; as a result, it insufficiently allows for adaptive management.

3. LITIGATION: ESA implementation is at the mercy of the attorneys. Cases involving one listed species can serve as a proxy for hidden agendas, especially land use disputes, and regardless of actual species needs, litigation and judicial orders set agency priorities. In the end, realistic solutions disappear amidst court-filings, fundraising, and rhetoric.

4. PRIVATE LANDS: Up to 80% of ESA-listed species habitat is on privately owned lands. While the ESA can place reasonable restrictions on private property rights, there are limits. But the best alternatives have limits too, such as Federal land acquisition and the highly controversial "God Squad" exemptions.

5. FUNDING: Protecting species is expensive, but resources appropriated by Congress are limited. An overburdened handful of federal agency biologists cannot keep pace with the ESA's procedural burdens, nor court-ordered deadlines (see #3 above). Provisions requiring agencies to pay attorney's fees to victorious litigators -- who challenge the hastily written documents prepared by overworked bureaucrats -- simply exacerbate the problem.

"Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of the larger assemblage." An insect with no apparent commercial value may be the favorite meal of a spider whose venom will soon emerge as a powerful and profitable anesthetic agent. That spider may in turn be the dietary staple of a brightly colored bird that people, who are notoriously biased against creepy crawlers and in favor of winsome winged wonders, will travel to see as tourists. Faced with the prospect that the loss of any one species could trigger the decline of an entire ecosystem, destroying a trove of natural and commercial treasures, it was rational for Congress to choose to protect them all. -- Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1274-75 (11th Cir.2007), cert. denied, 128 S.Ct. 8775 (2008), quoting Edward O. Wilson, The Diversity of Life 308 (1992).

"This case presents a critical conflict between dual legislative purposes, providing water service for agricultural, domestic, and industrial use, versus enhancing environmental protection for fish species whose habitat is maintained in rivers, estuaries, canals, and other waterways that comprise the Sacramento-San Joaquin Delta… This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans... No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance may be appropriate, so long as it will not further jeopardize the species or their habitat." -- The Consolidated Delta Smelt Cases, 2010 WL 2195960 (E.D.Cal., May 27, 2010)(Judge Wanger)(addressing the need for further consideration of the human consequences of ESA compliance).

Notable quotables

"A nation, as a society, forms a moral person, and every member of it is personally responsible for his society." – Thomas Jefferson (1792)

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"The destruction of the wild pigeon and the Carolina parakeet has meant a loss as sad as if the Catskills or Palisades were taken away. When I hear of the destruction of a species, I feel as if all the works of some great writer had perished."

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"Conservation means development as much as it does protection. I recognize the right and duty of this generation to develop and use the natural resources of our land; but I do not recognize the right to waste them, or to rob, by wasteful means, the generations that come after us." – Theodore Roosevelt (Aug. 31, 1910)

Noah's orders

GENESIS, Chapter 6: [v 20] "Of the birds according to their kinds, and of the animals according to their kinds, of every creeping thing of the ground according to its kind, two of every sort shall come in to you, to keep them alive. [v 21] Also take with you every sort of food that is eaten, and store it up; and it shall serve as food for you and for them."

GENESIS, Chapter 9: [v12] "And God said, This is the token of the covenant which I make between me and you and every living creature that is with you, for perpetual generations"

"The power of God is present at all places, even in the tiniest leaf … God is currently and personally present in the wilderness, in the garden, and in the field." – MARTIN LUTHER