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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.

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Interpreting plant provisions of the ESA, 9th Circuit shows restraint, encourages FWS to adopt rules

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Northern California River Watch v, Wilcox, No. 08-15780,(August 25, 2010)(Dorothy W. Nelson, William A. Fletcher, and Richard A. Paez, Circuit Judges).

SUMMARY:
   Robert Evans and Northern California River Watch (“River Watch”) appeal the district court’s grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively “Defendants”). River Watch contends that Defendants violated the Endangered Species Act (“ESA”), codified at 16 U.S.C. § 1531 et seq. Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to “take” a listed plant on areas under federal jurisdiction. See 16 U.S.C. § 1538(a)(2)(B).
   The district court granted Defendants’ motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were “areas under Federal jurisdiction.” On appeal, we consider the meaning of the term “areas under Federal jurisdiction” as used in ESA § 9. River Watch argues that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as “waters of the United States” by the Army Corps of Engineers. The United States, representing the interests of the Department of the Interior’s Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that we must apply the deference principles set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an “area under Federal jurisdiction.”
   Although we agree that the term “areas under Federal jurisdiction” is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (“FWS”), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that “areas under Federal jurisdiction” does not include the privately-owned land at issue here. We therefore agree with the district court’s ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants.

FACTUAL BACKGROUND:
   William and Frank Schellinger are brothers and business partners who seek to develop 21 acres of private property in Sebastopol, California. These 21 acres (“the Site”) are comprised of grasslands containing seasonal vernal pools, wetlands, seasonal creeks, vernal pools, and vernal swales.  After learning of the discovery of Sebastopol meadowfoam, California Department of Fish & Game (CDFG) Habitat Conservation Manager Carl Wilcox, CDFG biologist Gene Cooley, and Project Manager for the Site’s development Scott Schellinger, visited the Site in order to further investigate the presence of the plants. Wilcox, 547 F. Supp. 2d at 1073. Wilcox confirmed that the vegetation was the endangered plant species Sebastopol meadowfoam. (Photo below from USDA Natural Resources Conservation Service).  In examining the plants to determine whether they were rooted in the soil and thus naturally occurring, Wilcox lifted the plants, along with their substrates, out of the wetland. Because the CDFG employees suspected that the plants were not naturally occurring, Cooley later returned to the Site to gather evidence. Wilcox, 547 F. Supp. 2d at 1073. Upon his return visit, he removed the Sebastopol meadowfoam plants, placed them in plastic bags, and transported them to the local CDFG office, where he placed most of the plants in an evidence locker. Id. at 1073, 1079.

SebastMeadowfoam.jpg
Limnanthes vinculans, or Sebastopol meadowfoam, is an endangered species of meadowfoam found only in the Laguna de Santa Rosa in Sonoma County, California, USA and an area slightly to the south in the Americano Creek and Washoe Creek watersheds. Like the other meadowfoams, it is a small annual herb, with multiple stems growing up to 30 centimeters (12 inches) in height; white flowers occur singly at the ends of stems.  This species is only known from approximately 30 locations in the laguna de Santa Rosa and southern Cotati Valley of Sonoma County, in these areas it occurs in wet meadows and around vernal pools at elevations of under 300 meters. Photo credit: Mark W. Skinner @ USDA-NRCS PLANTS Database

EXCERPT RE: CHEVRON STEP ONE:
   The prohibitions at issue here are found at § 9(a)(2)(B), which states that it is unlawful to: remove and reduce to possession any endangered species of plants from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. Id. § 1538(a)(2)(B) (emphasis added). The meaning of “areas under Federal jurisdiction” is not immediately clear, nor is it explicitly defined in the ESA. “Jurisdiction, it has been observed, is a word of many, too many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998)
   Therefore, we conclude that the meaning of the statutory text “areas under Federal jurisdiction” is not plainly clear from the text of the ESA, nor does the ESA’s legislative  history elucidate Congress’ intent in using the term. We agree with the district court’s conclusion that “Congress did not explain what it meant by ‘areas under Federal jurisdiction,’ ” and we proceed to examine whether the FWS’s interpretations offered in the United States’ amicus brief satisfy the requirements set forth in United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

EXCERPT RE: CHEVRON STEP TWO:
   The United States cites three rules, which were promulgated by the FWS using formal rule-making authority, as evidence of the FWS’s interpretation of the phrase “areas under Federal jurisdiction.” The three rules designate certain plant species as endangered or threatened. None of these rules, however, interprets “areas under Federal jurisdiction;” instead, the rules use the phrase in passing and somewhat interchangeably with the term “federal lands.” Thus, the three rules do not provide an agency interpretation to which we could defer under Chevron...
   The United States also urges us to give Chevron deference to an “interpretation” of “areas under Federal jurisdiction” found in the Habitat Conservation Planning And Incidental Take Permit Processing Handbook, an FWS guidance manual for conducting the  Incidental take permit program under ESA § 10. Habitat Conservation Planning And Incidental Take Permit Processing Handbook (1996).  The Handbook states that “the ESA does not prohibit the incidental take of federally listed plants on private lands unless the take or the action resulting in the take is a violation of state law (which in most cases eliminates the need for an incidental take permit for plants).” Id. at 3-17. Although issued after public notice and comment, see 61 Fed. Reg. 63,854 (Dec. 2, 1996); 59 Fed. Reg. 65,782 (Dec. 21, 1994), the Handbook is not deserving of Chevron deference. First, “interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference.” ...  Finally, the 300+ page Handbook does not discuss “areas under Federal jurisdiction” other than in one paragraph where it restates the statute. In sum, the focus of the Handbook is the § 10 incidental take permit program, and any interpretation one might glean from the Handbook is attenuated at best.
   we hold that contrary to the United States’ arguments, the FWS has not yet interpreted “areas under Federal jurisdiction.”

EXCERPT RE: JUDICIAL CONSTRUCTION OF SECTION 9(a)(2)(B):
   Without any agency interpretation of “areas under Federal jurisdiction” to which we must defer, we proceed to interpret the term. We agree with the district court that River Watch’s proposed construction of § 9(a)(2)(B) is not tenable. The potential for overbreadth posed by interpreting “areas under Federal jurisdiction” as including all “waters of the United States” is simply too large...
  ...We hold that River Watch has not established that the plain language of the ESA mandates that “waters of the United States” are “areas under Federal jurisdiction.” We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret “areas under Federal jurisdiction” as not including all of the “waters of the United States” as defined by the CWA and its  regulations. Although our ruling will constitute “binding law,” we recognize that under Brand X Internet Servs., 545 U.S. 967, 986 (2005)., we are not the “authoritative interpreter” of “areas under Federal jurisdiction.” See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

KEITHINKING: Seems as though Chevron deference is becoming increasingly less deferential...  This case also involved a sinister subplot, as revealed in footnote 6, which states: "In the district court, the Schellingers alleged that the plants were illegally
transplanted to the Site in an effort to delay their development plans. Although this issue is disputed by the parties, it is irrelevant to our review."