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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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"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.

« Army Corps enforcement on 404 permit triggers stay of endangered species litigation over Cypress Creek Town Center | Main| FWS rejects petition to list the long-tailed duck, finding the species to be 'numerous and widespread' »

Court finds that FWS can reach listing determination on a distinct population segment of a subspecies

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Sierra Forest Products, Inc. v. Kempthorne, Case No. 2:07-CV-00060 JAM GGH, Order re: Motion and Cross Motions for Summary Judgment (E.D.Cal., June 9, 2008)

FACTUAL BACKGROUND: On December 5, 2000, the Center for Biological Diversity petitioned the Service to list a Distinct Population Segment (DPS) of the fisher (Martes pennant), a member of the weasel family, in its West Coast range, including portions of California, Oregon, and Washington (“West Coast”), as endangered under the ESA, 16 U.S.C. § 1531 et seq…  On April 8, 2004, the Service determined that the listing of the West Coast DPS of the fisher was warranted, but precluded by higher priority listing actions to amend the Lists of Endangered and Threatened Wildlife and Plants, and placed the fisher on the Candidate Species List.

PacificFisher.jpg
Photo of the Pacific fisher from Sierra Forest Legacy

SUMMARY OF RULING: The Court found that it had subject matter over the dispute, thus rejecting the procedural defenses raised by the Federal Defendants, but on the merits, ruled against the challengers, and upheld the Federal agency actions.

ISSUE: Sierra Forest Products maintains that the Service violated the ESA and the APA by failing to specify whether the West Coast DPS of the fisher is a DPS of a species or a DPS of a subspecies.  Sierra argues that an express finding that the West Coast DPS of the fisher is a DPS of a species, not a DPS of a subspecies, is critical because the ESA does not authorize the listing of a DPS of a subspecies.

RULING ON THE MERITS:  An evaluation of the administrative record in this case reveals that the Service provided sufficient reasoning for its determination that the West Coast fisher is a DPS of a species. In fact, a review of the record reveals that the Service addressed the taxonomy of the fisher and determined that the West Coast DPS of the fisher is a DPS of a species inasmuch as the Service repeatedly referred to the West Coast DPS of the fisher as a species throughout the record…  Furthermore, even assuming for the sake of argument that the Service had found the West Coast DPS of the fisher to be a DPS of a subspecies, this would have been permissible agency action insofar as the Service is authorized under the ESA to list a DPS of a subspecies on the Candidate Species List. See Center for Biological Diversity v. United States Fish & Wildlife Service, 2008 WL 1776455, *2 n. 5 (9th Cir. 2008) (concluding that the Service’s interpretation of the ESA to allow listing of a DPS of a subspecies is entitled to deference because it is a permissible construction of the ESA).

ADDITIONAL EXCERPT ON SUBJECT MATTER JURISDICTION:  The Court also wrestled with the scope of its subject matter jurisdiction.  “Defendants argue that this Court lacks subject matter jurisdiction to review the Service’s ‘warranted but precluded’ finding because neither the ESA nor the APA provide for interlocutory judicial review of the ‘warranted’ aspect of a ‘warranted but precluded’ finding. Sierra argues that judicial review of the Service’s ‘warranted but precluded’ finding is appropriate because the plain language of the ESA provides that ‘warranted but precluded’ findings are subject to judicial review. The Court finds Sierra’s argument to be persuasive…  Sierra’s cause of action, therefore, falls within the citizen-suit provision of the ESA, which allows for a civil cause of action when ‘there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary to the Secretary.’ 16 U.S.C. § 1540(g)(1)(C).

In addition, Intervenors argue that Sierra lacks standing under Article III to challenge the Service’s “warranted but precluded” finding because Sierra has not suffered any concrete injury in fact as the result of this determination. Sierra argues that it has standing to challenge the Service’s “warranted but precluded” finding because the Service failed to follow the procedural requirements of the ESA in listing the West Coast DPS of the fisher on the Candidate Species List, thereby causing harm to existing and future timber-harvesting contracts...  In the present case, Sierra claims that the Service failed to follow the procedural requirements of the ESA in listing the West Coast DPS of the fisher on the Candidate Species List. Therefore, its claim falls within the procedural standing analysis…  Given that it is reasonably probable that the Service’s “warranted but precluded” finding threatens Sierra’s concrete interest in harvesting timber, the Court finds that Sierra has alleged a sufficient injury in fact to seek redress of the alleged procedural injury.

COMMENTARY: The Court’s subject matter jurisdiction rulings are somewhat surprising, given the Court’s own statement elsewhere in the opinion that “The Court acknowledges that Defendants’ argument has some merit.”  The Court could have found that Sierra Forest Products had not yet been injured, since ESA protections were not yet in place for the fisher due to the warranted but precluded finding.  However, the conclusion on standing enabled the Court to reach the issues on the merits, where the Court ruled against the timber industry Plaintiffs, based on a previous unpublished ruling (in a footnote) by the Ninth Circuit.