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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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Court defers to FWS inferences on finding of insufficiency for petition to list giant Palouse earthworm

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Palouse Prairie Foundation v. Salazar, No. CV-08-032-FVS, 2009 WL 415596 (E.D.Wash., Feb. 12, 2009)

BACKGROUND: In this case, the FWS found that the petitioner's request for listing the giant Palouse earthworm (GPE) was not supported by substantial information.  As a result, the FWS declined to engage in further review of the GPE's status. The petitioners disagree with the FWS's negative 90-day finding. They have filed an action alleging the Secretary of the Interior and the Director of the Fish and Wildlife Service violated the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA").

The giant Palouse earthworm (Driloleirus americanus ) ("GPE") can grow to three feet in length. It was once common in the grasslands of the Palouse prairie. However, the Palouse prairie grasslands have all but disappeared and, during the last 30 years, few sightings of the GPE have been published (and other findings have occurred elsewhere).  Photo from

RULING EXCERPT: In essence, the plaintiffs are inviting the Court to review the data and make an independent de-termination with respect to whether the data would lead a reasonable person to believe the GPE should be listed as threatened or endangered. The problem with the plaintiffs' invitation is that it accords insufficient deference to the FWS's scientific judgment. The arbitrary-and-capricious standard "is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Northwest Ecosystem Alliance, 475 F.3d at 1140 (internal punctuation and citation omitted). Contrary to the plaintiffs, the issue before the Court is not whether a reasonable person could accept their interpretation of the data, but whether the FWS had a rational basis for concluding that a reasonable person would not do so. In making that determination, the Court must balance two considerations. On the one hand, the FWS was obligated to generously evaluate the data contained in the plaintiffs' petition. On the other hand, the FWS was entitled to use sound scientific judgment in deciding whether the data reasonably supported the plaintiffs' inferences concerning the status of the GPE...  FWS had a reasonable basis for its interpretation of the evidence. In this case, the FWS acted reasonably. At each point along the analytical path (whether considering the extent of the GPE's habitat, its population, or potential threats to its existence), the FWS had a rational basis for declining to draw the inferences sought by the plaintiffs. Consequently, the Court will grant the FWS's motion for summary judgment and uphold its determination.

KEITHINKING: Food for thought...  The FWS decision on the petition was made in October 2007.  Would the Obama have reached different inferences from the evidence, and found the petition to be sufficient?  And would the courts uphold the inferences had they gone the other direction...  for an earthworm?