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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.


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 stops California turtle advocacy group's effort to re-litigate State Department certification process, but Florida group can fight on.

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Turtle Island Restoration Network v. U.S. Dept. of State, No. 09-5239 CW, 2010 WK 2836911 (N.D.Cal. July 19, 2010)(Claudia Wilken, District Judge).

BACKGROUND.  Passed by Congress in 1989, section 609(b)(1) of Public Law 101-162 bans the importation of shrimp harvested with technology that may adversely affect sea turtles. 103 Stat. at 1037. Under section 609(b)(2), this ban “shall not apply if the President shall determine and certify to the Congress” that
    (A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and
    (B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or
    (C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.
103 Stat. at 1038. The certification authority under section 609(b)(2) has been delegated to Defendant. Delegation of Authority Regarding Certification of Countries Exporting Shrimp to the United States, 56 Fed.Reg. 357 (Dec. 19, 1990).

In this action, TIRN and Mayport Village, a Florida-based organization that represents the interests of businesses and residents of Mayport, Florida, complain that Defendant's certification process violates the NEPA and the ESA. In particular, Plaintiffs contend that the individual certification decisions made pursuant to the 1999 Guidelines are “major federal actions that have significant impacts on the human environment,” requiring environmental review and public disclosure under the NEPA.  Plaintiffs also assert that these decisions may affect sea turtle species listed as threatened or endangered under the ESA, triggering the consultation requirement under section 7(a) (2) of the ESA. Plaintiffs seek a declaration that Defendant violates the NEPA and the ESA and an injunction requiring Defendant to comply accordingly.

LEGAL ISSUE:  “Res judicata bars a suit when ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’ … To determine whether an identity of claims exists, a court considers four factors: “(1) whether the two suits arise out of the same transactional nucleus of facts; (2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether the two suits involve in-fringement of the same right; and (4) whether substantially the same evidence is presented in the two actions.”   ProShipLine, 594 F.3d at 688

RULING: An identity of claims exists between this action and the earlier Earth Island litigation and, as a result, res judicata bars TIRN's current claims. TIRN complains here that Defendant fails to comply with the NEPA or the ESA in the context of its certification decisions. As explained above, the 1999 Guidelines prescribe the factors Defendant considers in making certification decisions and the procedures through which such decisions are made. The process and, specifically, the 1999 Guidelines were at issue in Earth Island Inst. v. Daley, 48 F.Supp.2d 1064 (CIT 1999), and Plaintiff does not assert that either have materially changed...  At the time of that litigation, it was known that Defendant's process and the 1999 Guidelines did not require that, when it makes certification decisions, it engage in the environmental review and public disclosure that are required when the NEPA applies or the consultation mandated when the ESA applies. As noted above, Defendant intended the 1999 Guidelines to delineate for foreign countries exactly what it considers when making certification decisions. The 1999 Guidelines say nothing about an environmental review or general consultation with other federal agencies.  This placed TIRN on notice that Defendant does not undertake these procedures when certifying foreign countries. Thus, TIRN could have raised its current claims in its prior litigation before the CIT but chose not to do so. …  Accordingly, because TIRN's claims arise from the same transactional nucleus of facts as the previ-ous Earth Island litigation, res judicata bars its claims under the NEPA and the ESA against Defendant's 1999 Guidelines.

KEITHINKING:  This case provides another reminder for aspiring environmental lawyers to work hard in their civil procedure classes.  Generally, the ESA requires review of the "effects of an action," which in turn, usually requires some degree of site specific information.  However, in the context of the shrimp fishery and its effects on turtles, the State Department's 1999 guidelines on the issue are quite detailed, and provide, in effect, for a programmatic approach to consultation -- just a Congress intended when it passed Public Law 101-162 and provided specific direction to the State Department to certify that "the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting."  See generally Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed.Reg. 36,946 (July 8, 1999) (1999 Guidelines).  The State Department's 1999 guidelines were the subject of litigation in  Earth Island Inst. v. Daley, 48 F.Supp.2d 1064 (CIT 1999); Turtle Island Restoration Network v. Mallett, 110 F.Supp.2d 1005 (CIT 2000), and the earlier 1993 version of these guidelines were also the subject of litigation.  See Earth Island Inst. v. Christopher, 913 F.Supp. 559, 562 (CIT 1995); Revised Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 58 Fed.Reg. 9,015 (Feb. 18, 1993) (1993 Guidelines).  With this decision, the California turtle advocates litigation run will end, at least on this issue.  

However, this case also provides an important lesson on forum shopping, client shopping, and the art of legal advocacy.  TIRN, located in Northen California, served as lead plaintiff, but a Florida group, Mayport Village, near Jacksonville, FL, also signed on, frustrated by the certification process, and the bycatch of sea turtles in foreign shrimp trawlers.  See photo below from Sea Turtle Restoration Project.  Due to the Florida group's participation, TIRN's lawyers will still have their chance to plead their case.  As the court held, "Res judicata, however, does not bar Mayport Village's claims because it lacks privity with any plaintiff in the previous Earth Island litigation… Mayport Village's claims are dismissed without prejudice to refiling in a proper venue."