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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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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.

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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.

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ESA in the Courts: jurisdiction and mootness in U.S. District Courts for Arizona, D.C., and Northern California

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Defenders of Wildlife, et al., v. Tuggle, CV 08-280 TUC DCB (Lead),,CV 08-820 PHX DCB (Consolidated), 2009 U.S. Dist. LEXIS 30121 (D.Az., April 1, 2009)

SUMMARY: Plaintiffs challenged U.S. Fish and Wildlife Service procedures for wolf control actions taken as part of the administration of the Mexican wolf reintroduction project within the Blue Range Recovery Area. Granting and denying parts of the U.S. Department of Justice's motion to dismiss, the Court held that (1) Standard Operating Procedure 13 represented final agency action, and (2) discussed how plaintiffs claims fell within the Courts' jurisdiction, either through (a) the citizen suit provision of the Endangered Species Act, or (b) the Federal Administrative Procedure Act.

EXCERPT: The Court finds that the 2003 Memorandum of Understanding and SOP 13 mark the consummation of the agency's decisionmaking process in respect to wolf control measures, which determines rights and obligations as follows: 1) It establishes specific control measure protocols and specifies when and why they are to be used. 2) SOP 13's express purpose is to set clear limitations or "outer boundaries" on discretionary program management. 3) It establishes the responsibilities of and relationships between the respective Adaptive Management Oversight Committee participants in a way that substantively changes the direct and discretionary responsibilities once held by USFWS under the Interagency Management Plan...  The Court finds that unlike a general policy statement, SOP 13 was intended to ensure the public as to how wolf removal decisions would be made and to limit USFWS discretion and authority to change its position regarding wolf removal. SOP 13 was adopted to supercede the IMP, which this Court finds was an interpretive rule because the Final Rule called for USFWS to adopt such a rule when it called for detailed wolf management procedures and protocols, including control measures to be spelled out in a Service-approved management plan. The IMP, and subsequently the MOU and SOP 13, was intended to add considerable detail to 50 C.F.R. § 17.48(k) to flush out the specifics of wolf removal actions. The IMP was binding until revised, which admittedly occurred when superceded by SOP 13, making SOP 13 equally binding until revised.

 MexicanWolfAGFD.jpg
On January 12, 1998, USFWS issued a Final Rule that it would reintroduce the endangered Mexican wolf into the Apache and Gila National Forests in east-central Arizona and west-central New Mexico.  Later in 1998, the Service approved the Mexican Wolf Interagency Management Plan (IMP), in cooperation with Arizona Game and Fish (AGFD), New Mexico Department of Fish and Game (NMFG), Forest Service (USFS), several counties, and the San Carlos and White Mountain Apache Tribes (WMAT). The IMP "outlines the interagency management activities needed to reintroduce Mexican wolves (Canis lupus bailey) in the Blue Range Wolf Recovery Area.  Revisions to that IMP were at issue in this case.  Photo from Arizona Game and Fish Department

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The Wilderness Society v. Salazar, Civil Action No. 98-2395 (RWR), 2009 U.S. Dist. LEXIS 24821 (D.D.C., March 25, 2009)

SUMMARY OF ORDER: The Wilderness Society and seven other organizations filed this lawsuit against the Secretary of the Interior, the Bureau of Land Management ("BLM"), and the Fish and Wildlife Service ("FWS") challenging the decision by the Secretary to conduct oil and gas leasing in an area of the National Petroleum Reserve-Alaska ("NPR-A"). Plaintiffs filed a motion for partial summary judgment on Counts II through IV, VII and VIII of their first amended complaint, arguing that the Environmental Impact Statement violates the National Environmental Policy Act of 1970 ("NEPA"), 42 U.S.C. § 4331, et seq., Executive Order ("EO") 11,990, and the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531, et seq. Defendants filed a cross-motion for summary judgment on these counts. Plaintiffs later filed a motion to dismiss without prejudice for lack of jurisdiction Count VIII involving the ESA claim, which the defendants oppose. 2 Because Count VIII is moot, it will be dismissed. Because the defendants complied with NEPA and the EO, judgment will be entered for them on the remaining counts.

EXCERPT: After plaintiffs filed the motion for summary judgment, the Secretary published final rules designating critical habitat for the eider species and did not designate any critical habitat within the Reserve. Plaintiffs then filed a motion to dismiss Count VIII without prejudice, arguing that their claims are now moot and should be dismissed without prejudice...  The parties agree that plaintiffs' claim that FWS violated the ESA by failing to designate critical habitat for the spectacled eider and the Steller's eider is moot. The parties disagree as to whether that claim should be dismissed with or without prejudice. A dismissal on mootness grounds is without prejudice to future suits on the merits of the same claim. See Payne v. Panama Canal Co., 607 F.2d 155, 158 (5th Cir. 1979) (holding that "e dismissal without prejudice of the prior actions on grounds of mootness does not serve as a final adjudication on the merits so as to bar this action"); DiGiore v. Ryan, 172 F.3d 454, 466 (7th Cir. 1999), overruled on other grounds, Whetsel v. Network Property Services, LLC, 246 F.3d 897 (7th Cir. 2001) (stating that "dismissals based on justiciability issues should preclude only relitigation of the same justiciability issue, but not future suits based on the merits of the same claim"); McCarney v. Ford Motor Co., 657 F.2d 230, 234 (8th Cir. 1981) (stating that a dismissal based on concepts of justiciability, which includes the questions of advisory opinions, mootness and ripeness, does not preclude a second action on the same claim if the justiciability problem can be overcome). Accordingly, the court will grant plaintiff's motion to dismiss without prejudice as moot the allegation in Count VIII that FWS violated the ESA by failing to designate critical habitat for the spectacled eider and the Steller's eider, and will deny as moot plaintiffs' and defendants' motions for summary judgment on this allegation.

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Center for Biological Diversity v. Chertoff, No. C-08-2999 MMC, 2009 WL 839042, (N.D. Cal., March 30, 2009).

BACKGROUND: Plaintiff alleges defendant United States Coast Guard violated § 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2) (" § 7(a) (2)"), by failing to consult with the National Marine Fisheries Services to "ensure" that the Coast Guard's "activities under" the Ports and Waterways Safety Act ("PWSA"), 33 U.S.C. § 1221 et seq., "in the Santa Barbara Channel and other shipping lanes off the California coast .... will not jeopardize the continued existence of threatened and endangered species."...  Under the PWSA, the Coast Guard "may construct, operate, maintain, improve, or expand vessel traffic services, consisting of measures for controlling or supervising vessel traffic or for protecting navigation and the marine environment," and "may control vessel traffic in areas ... which the Secretary determines to be hazardous." See 33 U.S.C. § 1223(a)(1), (4). The Coast Guard also may designate Traffic Separation Schemes ("TSS") for vessels operating in approaches to ports. See § 1223(c)(1)...  In bringing the instant action, plaintiff "does not challenge the validity or substance of the oast Guard's 2000 TSS decisions." (See Opp'n & Reply at 3:12-13 (emphasis in original).) Rather, plaintiff's challenge is to what plaintiff asserts is "the Coast Guard's failure to comply with the ESA consultation requirements in connection with ongoing vessel management activities" (see id. at 5:14-6:2) and "ongoing traffic management actions" (see id. at 7:7-8). Defendants argue that the Court lacks jurisdiction to entertain a challenge to any such activities and actions that were not identified as violations of the ESA in plaintiff's 60-Day Notice of Intent to Sue and, further, that plaintiff has failed to identify any activity or action that constitutes "agency action" under the ESA, see § 7(a)(2), that was undertaken by the Coast Guard within the applicable limitations period.  

RULING RE: 60-DAY NOTICE: The section of the Notice titled "Violations of the ESA" fails to mention any geographic area other than the Santa Barbara Channel and focuses exclusively on the implementation of the TSS in the Santa Barbara Channel.   Accordingly, to the extent plaintiff's claims are based on violations of the ESA arising from the TSS off San Francisco or the TSS in the approaches to Los Angeles-Long Beach, the Court lacks subject matter jurisdiction.

RULING RE: TRAFFIC SEPARATION SCHEMES: It is undisputed that the Coast Guard's 2000 amendment to the Santa Barbara Channel TSS constituted "agency action" under § 7(a) (2). Unless the TSS constitutes "ongoing agency action," however, any challenge to the Coast Guard's failure to consult with NMFS in connection therewith is barred by the six-year statute of limitations provided in 28 U.S.C. § 2401(a), as the instant action was not filed until June 18, 2008.  Here, plaintiff has failed to show the Coast Guard retained discretion under the TSS and thereafter acted pursuant to such discretion...  Accordingly, plaintiff has failed to show the Coast Guard is engaged in "ongoing agency action" under the Santa Barbara Channel TSS, and, consequently, any challenge to such TSS is time-barred.

RULING RE: OTHER AGENCY ACTION:  Pointing to the Coast Guard's "broad, discretionary statutory authority to protect listed species" (see Response to OSC & Sur-Reply at 11:4-5), plaintiff argues that even if the Coast Guard had not elected to establish a TSS in the Santa Barbara Channel or elsewhere, "the agency would still have continuing ESA obligations arising out of its ongoing management responsibilities under the PWSA"...  The Court again finds plaintiff's argument unpersuasive.... Discretion, without more, is insufficient to trigger the consultation requirements of § 7(a)(2); rather, such requirements are only implicated by "affirmative actions." See Western Watersheds, 468 F.3d at 1108 (holding "section 7(a)(2) consultation stems only from 'affirmative actions' "; noting "discretion without more is not an 'action' triggering a consultation duty")

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KEITHINKING: Anyone considering a career in environmental law should take heed and pay attention to their civil procedure professor in law school.  For the rest of us, there's always Erwin Chemerinsky's Treatise on Federal Jurisdiction!