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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.

« Lack of 60-day notice sinks salmon case | Main| Upon further review, court upholds FWS decision not to list the Florida black bear. »

Regulation of lands under Clean Water Act did not trigger special Endangered Species Act protections for listed plant

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Northern California River Watch v. Wilcox, 2008 U.S. Dist. LEXIS 17441, No. C 06-06685 CRB (N.D.Cal. Mar. 6, 2008)

BACKGROUND: This case involved the Sebastopol meadowfoam, a plant.   With respect to plants, the Endangered Species Act, Section 9 makes it is unlawful to “remove and reduce to possession any such species from areas under Federal jurisdiction... in knowing violation of any law or regulation of any State”  In addition, the California Endangered Species Act prohibits taking of endangered plant species; however, "an employee or agent of the department may, in the enforcement of this chapter, . . . confiscate plants or parts thereof when unlawfully taken, transported, possessed, sold, or otherwise . . . ." Cal. Fish & Game Code § 1910.

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Photo from USFWS

SUMMARY: In this case, California land managers and law enforcement officers discovered the meadowfoam on a 21-acre site in Sebastopol, CA, and relocated the plants because they believed it had been placed there.  To begin with, as a legal matter, Judge Charles Breyer rejected the Plaintiffs expansive reading of the ESA:

"the ESA provides greater protections for fish and wildlife than for plants. Yet, under plaintiffs' interpretation of "areas under Federal jurisdiction," plants found on private property that is regulated by the federal government under a federal law, such as the Clean Water Act, are entitled to more protections than fish and wildlife found on the same property... To accept plaintiffs' interpretation would mean that the removal of endangered plants on private property that is regulated by the federal government under some statute is nearly absolutely prohibited, but that exceptions (incidental takes) can be made for fish and wildlife on the same property.  Such an interpretation is inconsistent with the ESA's greater protections for fish and wildlife.”

In addition, the Judge rejected the Plaintiffs claims of wrongdoing by the California wildlife personnel, finding no evidence of a knowing violation of state law.