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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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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Recent FWS notices: Critical habitat revisions for Canada lynx and wintering Piping Plovers; 48 more listings in Kauai | Main| California Attorney General pushes DOJ's Solicitor General to seek en banc review of Federal Circuit's Casitas decision »

9th Circuit finds conservation groups have standing to challenge treaty

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Salmon Spawning & Recovery Alliance v. Gutierrez, No. 06-35979, --- F.3d ----, 2008 WL 4490533 (9th Cir., October 8, 2008)

SUMMARY: "Wild salmon and steelhead, which are listed as threatened or endangered under the Endangered Species Act, have been the subject of much litigation in the federal courts. As they swim back and forth from the Pacific Northwest to Canada, the fish have no cognizance of an international boundary, or the Pacific Salmon Treaty ("Treaty"), an effort by Canada and the United States to manage salmon populations originating in Alaska and the Pacific Northwest.  This appeal concerns whether three conservation groups have standing to challenge the decision of federal agencies and officials to enter into, and remain a party to, that Treaty. The groups alleged that take levels permitted under the Treaty have allowed Canadian fisheries to overharvest endangered and threatened salmon and steelhead. The district court dismissed all three of their claims for lack of standing. We reverse the district court in part because the groups have procedural standing to bring their third claim for relief.  We affirm the dismissal of the first and second claims."

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The Pacific Salmon Treaty embodies the commitment made by Canada and the United States to carry out their salmon fisheries and enhancement programs so as to:  prevent over-fishing and provide for optimum production, and ensure that both countries receive benefits equal to the production of salmon originating in their waters.  Image from PSC.org

Read on for additional analysis, excerpts, and Keithinking...

FACTUAL BACKGROUND: Salmon Spawning alleged that the 1999 BiOp authorizing the United States' entry into the Treaty was arbitrary and capricious in violation of § 5 of the APA, and also a violation of ESA §§ 7 and 9.

LEGAL BACKGROUND: "The broad contours of Article III standing are well known. We must first decide whether a plaintiff has suffered sufficient injury to satisfy the "case or controversy" requirement of Article III. Bennett v. Spear, 520 U.S. 154, 162 (1997); Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.2004). The plaintiff has the burden of establishing the three elements of Article III standing: (1) he or she has suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992)..."

CONCLUSION RE: ALLEGED INADEQUACY OF BIOP:  The BiOp considered two proposed agency actions, only one of which is at issue in this appeal: the "formal commitment of the U.S. to implement its fishery obligations consistent with, and for the duration of, the new PST agreement-- essentially a final U.S. approval of the agreement."  The BiOp recognized that, once the United States entered into the Treaty, "fishing levels in Canada will be set by the provisions of the agreement for its duration, and cannot be re-visited except as may otherwise be agreed by both countries." (emphasis added)...  The relationship between the BiOp and the Treaty sets up a dichotomy of interests that sinks the effort to establish Article III standing for the first two claims; if the groups were successful in establishing that NMFS failed to comply with the procedural requirements of ESA § 7 in deciding whether the United States' entrance into the Treaty would jeopardize listed species, the procedurally flawed consultation and defective BiOp could theoretically be set aside. See 5 U.S.C. § 706. But, a court could not set aside the next, and more significant, link in the chain--the United States' entrance into the Treaty. While the United States and Canada can decide to withdraw from the Treaty, that is a decision committed to the Executive Branch, and we may not order the State Department to withdraw from it.

CONCLUSION RE: CONTINUED IMPLEMENTATION OF TREATY: In the second claim for relief, Salmon Spawning asserted that the agencies' and officials' continued participation in the implementation of the Treaty jeopardized listed salmon in violation of ESA § 7(a)(2), and that such participation was arbitrary and capricious in violation of the APA. Section 7(a)(2) confers upon agencies that are considering discretionary actions an affirmative "do-no-harm obligation" when their actions could cause harm to an endangered species. Defenders of Wildlife, 420 F.3d at 965. This duty is separate from an agency's responsibility to comply with the procedures required by § 7...  For much the same reason as the first claim fails, this claim hinges on agency action vis-a-vis the Treaty. The court cannot order renegotiation of the Treaty, and discretionary efforts by the agencies are too uncertain to establish redressibility.  [Even a] favorable judicial decision would leave matters to the discretion of the State Department...

CONCLUSION RE: FAILURE TO REINITIATE CONSULTATION:  Salmon Spawning also alleged that the State Department and NMFS were obligated by ESA § 7 and its implementing regulations to reinitiate consultation on the 1999 BiOp. Consultation under § 7 must be reinitiated where (a) discretionary federal involvement or control has been retained or authorized; and (b) the amount or extent of taking specified is exceeded, new information reveals effects that may affect listed species or critical habitat in a manner not considered, the action is subsequently modified so as to cause an effect to the listed species or critical habitat not previously considered, or a new species is listed or critical habitat designated. 50 C.F.R. § 402.16. The duty to reinitiate consultation lies with both the action agency and the consulting agency. See id...   According to Salmon Spawning, since the BiOp was issued in 1999, new criteria developed by NMFS show that the Canadian harvest is taking more Puget Sound chinook than the BiOp anticipated... That it is uncertain whether reinitiation will ultimately benefit the groups (for example, by resulting in a "jeopardy" determination) does not undermine their standing. Cantrell, 241 F.3d at 682. The asserted injury is not too tenuously connected to the agencies' failure to reinitiate consultation.  And a court order requiring the agencies to reinitiate consultation would remedy the harm asserted. Unlike the other claims, this claim is a forward-looking allegation whose remedy rests in the hands of federal officials and does not hinge on upsetting the Treaty.

KEITHINKING:  I dissent.  If the Plaintiffs lacked standing to bring the first and second claims, because the Court could not order the federal agencies to change the outcome, then that same logic should apply to the third claim as well.  Characterizations of a "failure to reinitiate" claim as "forward looking" are meaningless, because even if the process is undertaken, the outcome is the same.  The treaty cannot change in the absence of Executive Branch action.  No amount of consultation matters, and the Ninth Circuit has done nothing more than to order the federal government to undertake a meaningless paper process that still leaves everything "committed to the Executive Branch" or "to the discretion of the state department."   There is no redressability of the alleged injury, and the mere completion of a reinitiated consultation process, and even a new BiOp, does nothing to alter the harms to the Plaintiffs in the absence of subsequent Executive Branch activity.  For the same reasons expressed regarding the first two causes of action, the third cause of action should also have been dismissed.  I dissent.