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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.

« Panthers vs. ORVs, and coral critical habitat | Main| FWS announces status review on Sage Grouse, and two new Habitat Conservation Plans make news »

Case summaries: owls critical habitat, RICO-related elephants, delta smelt (yet again), and butterflies

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Arizona Cattle Growers Association v. Kempthorne, 2008 WL 435488 (D.Ariz., Feb. 4, 2008)(upholding Mexican spotted owl critical habitat designation by FWS).
BACKGROUND: This case arose from the Fish and Wildlife Service's promulgation of the Final Designation of Critical Habitat for the Mexican Spotted Owl, 69 Fed.Reg. 53,182 (Aug. 31, 2004), under the Endangered Species Act ("ESA").  In accordance with federal regulations, the Owl's critical habitat designation further identified three categories of "primary constituent elements," or PCEs, to explain why the designated areas were essential to the survival or recovery of the species.  Specifically, the rule discussed (1) forest structure; (2) maintenance of adequate prey species; and (3) canyon habitat, and included much more detail on each of these three PCE categories. 69 Fed.Reg. at 53,211".  Despite the detail, ACGA argued that FWS's critical habitat designation was flawed and violated the ESA in many respects, based on careful parsing of the specific terms in the ESA.

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Mexican spotted owl photo from Arizona Game & Fish

NOTEWORTHY EXCERPTS: "... "While the Service may not have provided PCEs to a level of specificity sufficient to appease Plaintiff, it did satisfy its statutory obligation with the level of detail given in the Final Rule--and that is all the ESA requires"...  "Here the record does not support Plaintiff's argument that the PCEs are so vague as to make it unnecessarily difficult for the public to ascertain whether certain plots of land contain the Owl's PCEs"..."While tempting in its logical simplicity, the Court is unconvinced that one cannot move forward with a conservation effort without first identifying that precise point at which conservation will be achieved"..."In reality, the best available science does not always permit the Service to state with certainty whether a particular area is occupied. With the Owl, the Service contends that given the 'limits of tracking species, the highly mobile nature of the owl, and the availability of scientific information about the habitats of the owls,' a finding of 'likely to occur' was the highest level of certainty that the Service could achieve."
COMMENTARY (and full disclosure): While working at DOJ, the author lost a case involving the designation of critical habitat for the Alameda whipsnake to the same attorneys from the Pacific Legal Foundation who represented ACGA here.  At the time, it seemed to this author that the court in that whipsnake case, Home Builders Association v. FWS, 268 F.Supp.2d 1197 (E.D.Cal. 2003), held FWS to an absurdly high standard when designating critical habitat. This case squarely rejects Home Builders, and appears to afford FWS the deference that a federal agency deserves in its rulemaking.

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Feld Entertainment v. American Society for Cruelty to Animals,  523 F.Supp.2d 1 (D.D.C., Nov. 7, 2007)
BACKGROUND:  In a related case, ASPCA v. Ringling Bros., No. 03-2006, ASPCA alleged that FEI's treatment of its Asian elephants violates the Endangered Species Act (“ESA”).  Here, FEI allege violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and claim that one of the named individual defendants was bribed by the organizational defendants to participate in the ESA Action against FEI in, and further claiming that the other defendants have acted as an association in fact, perpetrating a scheme to “permanently ban Asian elephants in circuses and to defraud FEI of money and property.  ASPCA moved the Court to stay the RICO case.

NOTEWORTHY EXCERPTS: "In the ESA Action, ASPCA has put forth serious allegations of mistreatment of an endangered species, allegations which, if true, have tremendous public import. The citizen suit provision of the ESA encourages private parties such as defendants in this case to act as “private attorneys general,” Bennett v. Spear, 520 U.S. 154, 165, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), to enforce the Act's provisions for the benefit of the public interest as a whole. Id. (Finding that all persons have an interest in the environment). The Court has already found that simultaneous prosecution of plaintiff's RICO claim would unduly delay resolution of the ESA claim. The public interest in the ESA claim weighs in favor of granting the temporary stay." ...  "Progress in the underlying ESA Action has been painfully drawn out due to the conduct of all parties to this litigation. The parties have demonstrated their inability or unwillingness to cooperate on even the most insignificant issues." ... "the stay of plaintiff's RICO action shall be in effect only until a determination is made by this Court on the merits of the ESA claim."

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Elephant poster (and other circus stuff) available online from art.com

COMMENTARY: As noted in the right column discussions of "Reasons for ESA Reform," the good intentions of the ESA is all too often captured by litigation, and the citizen suit provisions of the ESA can be used as a proxy for other battles.  Here, the frustration of Feld Entertainment is self-evident, leading one of the largest live entertainment producers in the world -- i.e. Ringling Brothers and Barnum & Bailey Circus! -- to bring racketeering claims against the animal rights activists.  Most of us probably can agree: this was not what Congress intended when it passed either the ESA or RICO.

OTHER RESOURCES: See wikipediadiscussion of the Ringling Bros. v. animal rights activists sideshow...

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OTHER MENTIONABLE CASES

NRDC v. Kempthorne, No. 1:05-cv-01207-OWW-GSA, 2008 U.S. Dist. Lexis 8494 (E.D.Cal. Jan. 23, 2008) addressing outstanding motions to dismiss in ongoing delta smelt litigation, and including extensive discussion of ESA §7(d).  
COMMENTARY:  ESA Section 7(d) of the Act prohibits Federal agencies and applicants from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.  Judge Wanger's analysis here is noteable in concluding that the duties required by this important provision end once a federal action agency completes its other duties to consult with FWS or NMFS on species impacts pursuant to the remainder of ESA §7.

CBD v. Kempthorne, 2008 WL 205253 (N.D. Cal., Jan. 23, 2008)(finding that  plaintiffs lacked standing to bring some claims, but also finding that FWS had failed to complete certain statutorily-mandated duties relating to species listing, pursuant to the ESA §4, and ordering completion of the rulemaking in 2008).