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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.

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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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D.Mass denies injunction against U.S. Navy and hints at mootness; D.D.C. rejects catalyst theory for attorney's fees where court lacked jurisdiction from the outset.

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STRAHAN v. ROUGHEAD, C.A. No. 08-cv-10919-MLW, 2010 WL 48278 (D.Mass. Nov. 22, 2010)(WOLF, District Judge).

SUMMARY: This case involves the Navy's obligations to protect certain federally-protected whale species (the “Federally Protected Whales”) under the Endangered Species Act (the “ESA”), 16 U.S.C. 1531 et seq. Plaintiff Richard Max Strahan (“Strahan”) filed the complaint in this action pro se, seeking declaratory and injunctive relief against the defendants, Admiral Gary Roughead and Secretary Raymond E. Mabus of the United States Navy, and Robert M. Gates, the Secretary of the United States Department of Defense (collectively “the Navy”). Essentially, Strahan contends that by operating Navy vessels and conducting military training operations in United States coastal waters in a manner that kills and injures four federally protected whales species and adversely alters their federally-designated habitats, and by failing to consult with the National Marine Fisheries Service (the “NMFS”) regarding the impact of its operations, the Navy is violating various provisions of the ESA.  The Navy moves for dismissal for lack of subject matter jurisdiction. Strahan moves for a preliminary injunction, as well as for orders compelling the Navy to comply with his requests for jurisdictional discovery, to lift the stay that currently exists, to compel the Navy to send him e-mail filings, and to schedule a conference. For the reasons described below, the stay in this case is being lifted; the Navy's motion to dismiss for lack of subject matter jurisdiction is being denied, without prejudice to renewal with regard to the question of mootness following further submissions and, if necessary, a hearing on the issue; Strahan's motion to compel jurisdictional discovery is being allowed in part and denied in part, also without prejudice to renewal should the Navy again move to dismiss on jurisdictional grounds; Strahan's motion for a preliminary injunction is being denied; and Strahan's motion to compel e-mail filings is being denied. Strahan's motions to schedule a conference are being allowed.

EXCERPT RE: INJUNCTION: In view of the harmful impact that Strahan's requested preliminary injunctive relief would have on critical Naval operations, “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy.” Winter, 129 S.Ct. at 378. Therefore, Strahan's motion for a preliminary injunction is being denied.

EXCERPT RE: MOOTNESS: These exhibits suggest that the Navy's recent Section 7 consultation addressed at least some of the actions at issue in Strahan's Complaint. However, it is not clear from these exhibits that the consultation addressed the full scope of the challenged actions, which encompass Naval operations in or adjacent to Federally Protected Whales' marine habitat along the entire United States coastline. The actions challenged in Strahan's Complaint are not limited to the Naval training activities that were, as of June 5, 2009, intended to take place in particular areas along the southeastern United States coastline between June, 2009 and June, 2014, and which appear to have been the primary focus of the Navy's recent Section 7 consultation. ... Thus, although the exhibits submitted by the Navy suggest that the Section 7 consultations it has engaged in address at least some of the actions at issue in this case, the evidence presented does not demon-strate that Count III is moot.

AND ONE MORE EXCERPT: Plaintiff's Notice and Motion that the ECF Filing System is Denying Me Access to Case Filings as Part of the District Court's Segregationist Polices [sic] Against Non-Attorney Petitioners (Docket No. 27) is DENIED.

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In a dispute over protection of four federally-protected species: the Northern Right Whale (Eubalaena glacialis ), the Humpback Whale (Megap-tera novaenagliae ), the Fin Whale (Balaen-optera physalus ), and the Blue Whale (Balaenoptera musculus ), the pro se Plaintiff, Strahan, particularly emphasizes the harm to Northern Right Whales, “the most endangered species of whale in the world,” which has “been in continuous decline for at least the last three decades.” Complaint at 6. The principal way in which humans contribute to Northern Right Whale mortality is through “ship strikes and entanglement in commercial fishing gear.” Id. Consequently, the remaining population of the Northern Right Whale in the Atlantic Ocean is in the low 200s. Complaint at 7.  Photo of Humpback whales in the New England shipping channels by K. Sardi, Whale Center of New England available from NMFS Northeast Regional Office.

***

CONSERVATION FORCE v. SALAZAR, Civil Action No. 09-496(JDB), --- F.Supp.2d ----, 2010 WL 4870572 (D.D.C., Nov. 30, 2010)(JOHN D. BATES, District Judge).

SUMMARY: Now before the Court is the motion by plaintiffs-organizations and individuals that support sustainable hunting of the Canadian wood bison-for attorneys' fees and costs against defendants Ken Salazar, in his official capacity as Secretary of the Interior, Rowan Gould, in his official capacity as Director of the U.S. Fish and Wildlife Service, and the U.S. Fish and Wildlife Service. Plaintiffs seek fees pursuant to section 11(g)(4) of the Endangered Species Act of 1973 (“ESA” or “the Act”), 16 U.S.C. § 1540(g)(4), which provides that a court “may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.” Id. Plaintiffs seek $106,194.30 in attorneys' fees and costs pursuant to § 1540(g)(4).  Plaintiffs brought this suit in March 2009, alleging that the Secretary of the Interior had violated several provisions of the ESA in his treatment of the Canadian wood bison. In particular, plaintiffs claimed that the Secretary violated the ESA by failing to timely act on a petition to “downlist” the wood bison from “endangered” to “threatened.” Individual plaintiffs also challenged the Secretary's failure to process their applications to import wood bison hunting trophies. On June 7, 2010, the Court denied plaintiffs' motion for summary judgment and dismissed the case, ruling that the Court lacked jurisdiction over plaintiffs' claim for the Secretary's untimely response to the downlisting petition and that the individual plaintiffs' permit processing claims were moot. Conservation Force v. Salazar, 715 F.Supp.2d 99 (D.D.C.2010). Now, plaintiffs seek attorneys' fees under the “catalyst” theory, which, where applicable, permits courts to award a party attorneys' fees when the party obtains, through settlement or otherwise, substantial relief prior to adjudication on the merits. For the reasons explained below, the Court will deny plaintiffs' motion for attorneys fees.

EXCERPT: To be sure, multi-year delays to process plaintiffs' permit applications certainly do not indicate an efficient permit processing system. However, to sue under the ESA's citizen-suit provision, plaintiffs must identify a non-discretionary, statutory duty under section 1533 to process their applications by a specific date. They cannot. Hence, the ESA citizen-suit provision does not authorize judicial review of plaintiffs' permit processing claims, and plaintiffs are not eligible for attorneys fees under the ESA's attorneys' fees provisions on those claims.  Assuming that plaintiffs could have brought the permit processing claims under the APA, they would still not be eligible to recover attorneys' fees. The APA provides for the recovery of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, which only permits fee-shifting to a “prevailing party” and does not allow recovery under the catalyst theory. See Buckhannon, 532 U .S. at 610.