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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.

« NOAA declares the Pacific Eulachon threatened, announces draft recovery plan for Central California Coast Coho Salmon | Main| ESA news: crimes, coral and Secretary Udall »

One federal court stays out of salmon enforcement case, a second dives in on attorneys fees.

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Salmon Spawning and Recovery Alliance v. Ahern, 2010 WL 890047, Case No. C05-1878Z (W.D. Wash, March 9, 2010),

BACKGROUND: This case was originally filed in this Court in 2005, transferred to the Court of International Trade (“CIT”) in 2006, appealed to the Federal Circuit in 2007, remanded to the CIT in 2008, and transferred back here in 2009. Salmon Spawning & Recovery Alliance v. Basham, 477 F.Supp.2d 1301 (Ct. Int'l Trade Mar. 6, 2007); Salmon Spawning & Recovery Alliance v. U.S. Customs, 550 F.3d 1121 (Fed.Cir.2008); Salmon Spawning & Recovery Alliance v. Basham, No. 06-00191 (Ct. Int'l Trade May 13, 2009).

ISSUE: The only remaining claim in the case is Plaintiffs' claim under Section 7(a)(2) of the Endangered Species Act (“ESA”), in which Plaintiffs allege that the U.S. Customs and Border Protection (“Cus-toms”) and U.S. Fish and Wildlife Service (“FWS”) are violating the ESA and the Administrative Procedure Act (“APA”) by “continuing to allow the import into the United States of ESA-listed salmon caught in Canada without having completed the consultations required by section 7 of the ESA.”

RULING: There are five cases discussed by the parties where the agency actions were not considered to be ongoing agency actions because the agencies lacked sufficient discretion over the completed agency actions to regulate the private action at issue...  The alleged failure of Customs and FWS to enforce the salmon import ban does not constitute agency action within the meaning of ESA Section 7(a)(2).

KEITHINKING: It was full of sound and fury, but in the end, perhaps it signified nothing.  Importantly, the issue in this case was not whether an agency SHOULD be increasing its enforcement efforts to prevent illegal imports of endangered species.  The precise question at issue here is whether a federal courts should be determining how the federal agencies exercise that enforcement discretion.  Environmentally-minded plaintiffs would argue that they are simply trying to ensure that the enforcement decision follows certain procedural steps.  Conservative or government-minded opposition would respond that the ultimate outcome is discretionary anyway, so the court should not dictate that process.  See also prior ESA blawg.

***

Friends of Animals v. Salazar, Civil Action No. 09-707 (RMC), 2010 WL 936222 (D.D.C., March 16, 2010).

BACKGROUND: On April 16, 2009, Friends of Animals filed an ESA-based complaint, Plaintiff's claim that Defendants had failed to make a 90-day finding on its endangered species petition became moot, and Plaintiffs other count was dismissed because they failed to provide Notice of Intent to sue.  Despite that, the Court also found that the Plaintiff's lawsuit was the catalyst prompting Defendants to ultimately issue a 90-day finding as required.

ISSUE: Plaintiff sought to recover attorneys' fees and costs.

RULING: Plaintiff will be awarded $13,124 in fees and costs.

KEITHINKING: The Court filled out the blank Federal check, but in my opinion, Plaintiffs should have recovered much less for sloppy, cut-and-paste lawyering by a law student.  Describing the work, the judge explained as follows:  "The Court finds it is reasonable for an inexperienced attorney - or, as here, a law student - to take more than the 10.4 hours the MacClarence court deemed appropriate for drafting a complaint. The Court agrees, however, that the fact that the Complaint purported to sue Steven Williams in his capacity as Director of FWS, when Mr. Williams had not been Director for several years at the time of filing, suggests that Plaintiff's counsel worked from a template that has been used many times before. This is further evidenced by the fact that the majority of the Complaint is citations to statutory provisions, with only the Factual Background and Prayer for Relief sections containing information unique to this case.  The Court therefore will reduce the amount of time spent on the Complaint by 50% to account for the fact that it appears to be largely boilerplate and for the time spent addressing the 12-month deadline claim, on which Plaintiff did not prevail."  

I DISSENT.  The Endangered Species Act does not say "thou shalt get fees, no matter what."  Rather, it has a discretionary clause that says that the judge "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate."  In this case, for at least part of the work (for which the judge awarded more than $2600), ZERO was appropriate.