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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.

« FWS designates revised critical habitat for Preble’s meadow jumping mouse and Santa Ana sucker, reopens comment period on Mississippi gopher frog | Main| FWS announces endangered status for 7 Brazilian birds, and publishes recovery plan for St. Andrews beach mouse »

ESA caselaw from the District Courts: panthers, whales, and ribbon seals.

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CONSERVANCY OF SOUTHWEST FLORIDA v. UNITED STATES FISH AND WILDLIFE SERVICE, No. 2:10-cv-106-FtM-SPC, 2010 WL 5140729 (M.D. Fla. Nov. 12, 2010)(Report and Recommendation by Sheri Polster Chappell, United States Magistrate Judge.

BACKGROUND: Plaintiffs have filed this lawsuit under the Endangered Species Act (ESA), 16 U.S.C. 1531, et seq. and the Administrative Procedures Act (APA), 5 U.S.C. 702, et seq., challenging the Defendant Fish and Wildlife Service's (Service) denials of Plaintiffs' petitions to designate critical habitat for the Florida Panther (Puma concolor coryi). The Defendants move to dismiss, arguing that the decision whether to designate critical habitat for the Florida Panther is committed to agency discretion by law and therefore this Court lacks subject-matter jurisdiction to review the denial of Plaintiffs' petitions. Defendants assert that dismissal is appropriate under Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief may be granted...  Plaintiffs allege that the Florida Panther is teetering on the brink of extinction and critical habitat is crucial to their survival as a species. Thus, in January 2009, the Conservancy of Southwest Florida (Conservancy) filed a petition with the Service under the ESA, Service regulations, and the APA, asking the agency to establish critical habitat for the Florida Panther...  On February 11, 2010, the Service denied the Conservancy's January 2009 petition, the Center for Biological Diversity's September 2009 petition, and the Sierra Club's November 2009 petition, in their entirety in three separate letters, and refused to designate critical habitat for the Florida Panther. In denying the petitions, the Service noted that it is in the process of working with several conservation organizations and private landowners in Collier County, Florida “to implement a landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act.” See Def. Ex. 1 at 3. The Service noted that this process, referred to as the “Florida Panther Protection Program,” may provide a framework for conservation and recovery efforts in other locations. Id.

PantherSFWMDfotoFlexer.jpg
The Florida Panther has been listed as an endangered species since 1967. 32 Fed.Reg. 4,001 (Mar. 11, 1967). The United States Fish and Wildlife Service has never designated critical habitat for the Florida Panther, because the 1973 Endangered Species Act did not require that critical habitat be designated at the time of listing of the species on the endangered list. The current form of the Act requires the Secretary of the Interior to promulgate regulations listing those species of plants or animals that are “threatened” or “endangered” under specific criteria, and to designate their critical habitat at the time of listing. 16 U.S.C. 1533. This requirement that the listing of the species and the designating of critical habitat occur concurrently was passed in the 1978 amendments to the ESA.  Through this litigation, various environmental groups seek to compel the designation of critical habitat for the species. Photo from South Florida Water Management Districttaken at Stormwater Treatment Area 5.

EXCERPT: Defendants argue that the Service's decision not to designate critical habitat for the Panther is discretionary and therefore unreviewable under the APA because Congress did not provide any standards as to when that discretion should be exercised. Def. Br. at 15. In other words, the ESA sets forth no specific criteria that the Service must consider in deciding whether to exercise its authority to designate critical habitat for pre-1978 species because the statute lacks standards governing the Service's discretionary decisions. Plaintiffs assert that there is law to apply and point to the APA's arbitrary and capricious standard (which Plaintiffs argue applies to all agency actions); the APA's standard on petitions for rulemaking, 5 U.S.C. § 553; and the ESA regulations that provide numerous, specific standards that the Service must follow once it receives a petition to designate critical habitat...


petitions to designate critical habitat. The Court disagress. Just because an agency has the authority granted by Congress to make a final determination as to whether critical habitat should be designated, does not mean that the agency has unlimited, unreviewable discretion to not follow the rules. “It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking.” Bennett, 520 U.S. at 172. In Bennett, which involved the designation of critical habitat under the ESA, but did not involve pre-1978 species, stated that “the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that in arriving at his decision, he ‘take into consideration the economic impact and any other relevant impact,’ and use ‘the best scientific data available.’ “ Id. Therefore, since the APA's review provisions apply, this Court has subject matter jurisdiction to conduct a record review of the agency's actions and it is respectfully recommended that Defendants' Motions to Dismiss be denied.

KEITHINKING: Sorry, no comment. Too close to home...

***

STRAHAN v. DIODATI, Civil Action No. 05-10140-NMG, 2010 WL 5174512 (D. Mass. Dec. 16, 2010).

Pro se plaintiff Richard Max Strahan (“Strahan”) is a self-proclaimed “citizen prosecutor” who has filed numerous lawsuits on behalf of whales that become entangled in fishing gear pursuant to the “citizen suit” provision of the Endangered Species Act (“the ESA”), 16 U.S.C. 1540(g)(1). The whales and those who are concerned for their safety should be grateful for his vigilance... Strahan brought the instant action against officers of the three agencies collectively responsible for licensing fishing gear deployed in Massachusetts coastal waters: Paul Diodati, in his official capacity as Director of the Massachusetts Division of Marine Fisheries; Ian Bowles, in his official capacity as Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs; and Mary Griffin, in her official capacity as Commissioner of the Massachusetts Department of Fish and Game (collectively “the defendants”).  Strahan seeks a declaratory judgment that the defendants have violated Secs. 9(a) and (g) of the ESA, 16 U.S.C. § 1538(a) and (g). Strahan also seeks a permanent injunction a) to enjoin the defendants from continuing to license certain commercial fishing equipment that allegedly entangles whales in violation of the ESA and b) to require them to fund the development of “whale-safe” gear and efforts to increase the size of the whale population.

EXCERPT: In support of his June 2010 motion to dismiss without prejudice, Strahan argues that: he is unable to prosecute his claims meaningfully because he is indigent and no longer lives in the Boston area and the Court's rulings have “banned” him from further discovery, thereby precluding him from “successfully” prosecuting the defendants.  The Court will deny the plaintiff's motion to dismiss without prejudice for several reasons: (1) Plaintiff waited until the case was more than five years old (and scheduled for trial two months later) to seek dismissal, (2) Strahan argues for dismissal based on the Court's legal rulings regarding the scope of discov-ery and his dissatisfaction with the factual record subsequently developed, (3) Defendants have already spent a prodigious amount of time on this litigation, including in discovery and (4) the Court has already conducted hearings, re-viewed numerous documents, imposed a reporting requirement during the stay, decided motions and set a date for trial.  The plaintiff's stated reasons for seeking dismissal are insufficient, as “voluntary dismissal should be refused when a plaintiff seeks to circumvent an expected adverse result.”  Furthermore, to grant the plaintiff's motion at this stage in the case would cause the defendants to suffer legal prejudice. Thus, plaintiff's motion will be denied.

KEITHINKING: A cautionary note for the citizen prosecutor: Courts "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." ESA, 16 U.S.C. 1540(g).

***

CENTER FOR BIOLOGICAL DIVERSITY v. LUBCHENCO, No. C-09-04087 EDL, 2010 WL 5288188 (N.D. Cal. Dec. 21, 2010).

In this civil action for declaratory and injunctive relief, Plaintiffs Center for Biological Diversity and Greenpeace (collectively, “Plaintiffs”) allege that Defendants Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration (“NOAA”), Gary Locke, the United States Secretary of Commerce, and the National Marine Fisheries Service (“NMFS”) violated the Endangered Species Act (“ESA”), 16 U.S.C. 1531, et. seq., in failing to list the ribbon seal as threatened or endangered.  Endangered and Threatened Wildlife; Notice of 12-Month Finding on a Petition to List the Ribbon Seal as a Threatened or Endangered Species, 73 Fed.Reg. 79822. The parties filed cross-motions for summary judgment, which were fully briefed. In addition, the State of Alaska filed two amicus briefs in support of Defendants. The Court held a hearing on September 2, 2010. For the reasons stated at the hearing and in this Order, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross-Motion for Summary Judgment.
 
ribbonsealNOAA.jpg
The ribbon seal primarily inhabits Russia's Sea of Okhotsk and the Bering and Chukchi Seas off of western Alaska.  The species is strongly associated with the sea ice during its whelping, mating and molting periods from mid-March through June. Sea ice is essential to ribbon seal survival. However, the sea ice habitat has been shrinking. For example, there is evidence that for the pe-riod from 1979 through 2006, the sea ice extent in the Okhotsk Sea declined by 9.3% per decade.  Photo from NOAA

EXCERPT: Plaintiffs argue that the twelve-month finding was arbitrary and capricious because: (1) NMFS failed to engage in a rational analysis of whether any distinct population segment (“DPS”) of the ribbon seal may warrant listing or whether the species is threatened or endangered in a “significant portion of its range;” and (2) NMFS relied on an irrational time frame for the “foreseeable future.” Plaintiffs also argue that NMFS erred by not utilizing the best available science in making its twelve-month finding.  On balance, Plaintiffs have failed to show that Defendants' decision on this issue was arbitrary or capricious.

KEITHINKING: In a detailed and fact specific-opinion, the Court deferred to NOAA's analysis on every issue. Of note was the Court's support for Alaska's position, and the rejection of the "err in favor of the species" argument made by the plaintiffs: "However, as the Court in Trout Unlimited v. Lohn, 645 F.Supp.2d 929, 947 (D.Or.2007) observed: 'Although an agency must still use the best available science to make that listing determination, Conner v. Burford, 848 F.2d 1441 (9th Cir.1988) cannot be read to require an agency to give the benefit of the doubt to the species under Section 4 if the data is uncertain or inconclusive. Such a reading would require listing a species as threatened if there is any possibility of it becoming endangered in the foreseeable future. This would result in all or nearly all species being listed as threatened. See also Alaska Amicus brief Ex. A (EPIC v. NMFS, C-02-5401 EDL at 15-16 (Mar. 2, 2004))."