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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.


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.


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.

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In Lake Belt mining case, 11th Circuit rebukes lower court, reaffirms deference principles in Federal APA litigation

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Sierra Club v. Flowers, No. 07-13297 (May 9, 2008) available online

BACKGROUND: Sierra Club brought this action against the Army Corps of Engineers (“Corps”) after the Corps granted Rinker Materials and other mining concerns (“Miners”) Clean Water Act (“CWA”) permits. 33 U.S.C. § 1251 et seq. The Miners sought to extract high-quality limestone from the “Lake Belt” area—a stretch of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps.  The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging inter alia that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.  The District Court found that the Corps violated NEPA, and remanded the permits to the Corps.

RULING: On Appeal, the 11th Circuit was quite critical of the District Court, clearly establishing that the lower court should have been much rmore deferential to the agency, and ruling, in pertinent part, as follows:

On remand, the district court should address the issues with an eye toward the proper deferential APA standard and NEPA’s limited, procedural scope...  The same pervasive lack of deference infects the district court’s APA-CWA analysis. As with its NEPA analysis, the court failed to view the CWA claims
decisions through the deferential lens of the APA. The judgment on the CWA-APA claim also is vacated... The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. Indeed, the court made its predetermination of the ultimate issue explicit in its conclusion... (where the lower court stated that 'even if a more probing analysis reveals that there truly are no practicable and environmentally preferable alternatives to mining in this precious resource, the Court’s conclusion would be unchanged.'...  In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing...  The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts.

Photo of wood storks nesting in nearby Everglades National Park, from USGS

For additional commentary and resources...

COMMENTARY: Although the District Court's opinion dealt with the impacts of the Lake Belt mining upon endangered wood storks, this case ultimately did not reach the ESA issues, because the claims had become moot.  However, the ruling -- that a District Court judges must provide adequate deference to Federal agencies implementing the laws within their responsibility -- remains important for ESA lawyers, and this case will serve as important precedent reaffirming a basic principle of administrative law.