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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.

« Temporary restraining order denied, but another vernal pool dispute continues in the City of Redding, California | Main| Ninth Circuit, following another D.C. decision, finds marbled murrelet 5-year review did not necessitate delisting the bird »

Despite FWS delays in completing grizzly bear delisting, U.S. District Court in Idaho upholds agency action

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Aland v. Kempthorne, MEMORANDUM ORDER, Case 1:08-cv-00024-EJL, Document 48, (D.Idaho June 25, 2008)

   BACKGROUND: Plaintiff, Robert H. Aland, has moved for summary judgment with regard to the Complaint’s tenth claim for relief, arguing that the Federal Defendants failed to satisfy a procedural requirement set forth in the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, when publishing the Grizzly Bear Final Agency Action on March 29, 2007 (the “Final Rule”). In the Final Rule, the U.S. Fish and Wildlife Service (“FWS”) determined that the greater Yellowstone National Park population of grizzly bears constituted a distinct population segment that warranted delisting as a threatened species under the ESA. The Federal Defendants, in turn, have filed a motion for partial summary judgment that challenges the merits of Plaintiff’s tenth claim for relief...  Under the tenth claim for relief, the Plaintiff contends that because the Defendants failed to publish the Final Rule regarding delisting within a one-year period after the date of the general notice, as required by the ESA, the FWS must start over with the delisting process. The Federal Defendants concede that the Final Rule was issued four and  one-half months after the one-year deadline expired but argue, first, that Plaintiff lacks standing to challenge the procedural irregularity and, in the alternative, that the untimely issuance of the Final Rule is not fatal to its effectiveness.

   RULING: The Court upheld Plaintiff’s standing to raise the tenth claim for relief.  "On the merits, however, the Plaintiff’s tenth claim fails under the case law. Contrary to Plaintiff’s insistence, the one year time frame for listing, downlisting or delisting a species is not a mandatory deadline. The Ninth Circuit has examined this very question and expressly concluded that there is no 'specific indication that Congress intended the time frame to serve as a bar.' Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1400 (9th Cir. 1995). Thus, 'the passage of time does not render FWS's conduct arbitrary and capricious' and summary judgment must be granted in favor of the Federal Defendants on Plaintiff’s tenth claim for relief. See id. at 1401."  In addition, sticking to the basic principles of judicial review based on an administrative record, the Court held that Plaintiff “ha[s] not made the requisite showing for discovery outside the administrative record,” but otherwise rejected the Federal request for consolidation with another case, finding that "consolidation is not appropriate at this
time. The Court may, however, revisit the matter."

GrizzlyYellowstone.jpg
Photo by Dr. Christopher Servheen, U.S. Fish and Wildlife Service