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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.

« ESA in the news: big ideas, big controversies... | Main| 9th Circuit says ESA is constitutional... but now what? »

ESA litigation increasing not just in abundance, but also in procedural complexity, as demonstrated by recent court decision related to flood insurance

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WILDEARTH GUARDIANS v. UNITED STATES FEDERAL EMERGENCY MANAGEMENT AGENCY, No. CV 10-863-PHX-MHM,.2011 WL 905656 (D.Ariz., March 15, 2011).
Mary H. Murguia, District Judge.

BACKGROUND: Pursuant to the National Flood Insurance Act of 1968 (“NFIA”), 42 U.S.C. §§ 4001-4129, Defendant Federal Emergency Management Agency (“FEMA”) is authorized to establish and carry out the National Flood Insurance Program (“NFIP”). 42. U.S.C. §§ 4001(a), 4011, 4128. In its First Amended Complaint, Plaintiff Wild Earth Guardians (“WEG”) alleges that Defendant's administration and implementation of the NFIP in Arizona violates the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. 4321 et seq., and two Executive Orders; 11988 and 11990.  Plaintiff Wildearth Guardians' filed a Motion for Leave to Supplement “Purported” Administrative Record.

EXCERPTS: Defendant's arguments in opposition to Plaintiff's motion... have been mooted by the Ninth Circuit's recent decision in Western Watersheds Project v. Kraayenbrink, --- F.3d 2011 ----, 2011 WL 149363 (9th Cir. January 19, 2011). The Kraayenbrink Court stated unequivocally that the scope of review for ESA citizen-suit claims is not provided for by the APA and as a result parties may submit and the court may consider evidence outside the administrative record:                                

As we explained in Washington Toxics Coalition, the APA applies only where there is “no other adequate remedy in a court,” 5 U.S.C. § 704, and -- because the ESA provides a citizen suit remedy -- the APA does not apply in such actions. 413 F.3d at 1034. Therefore, under Washington Toxics Coalition we may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiffs' ESA claim.
 632 F.3d 472, 2011 WL 149363, *22 (citing Washington Toxics Coal. v. EPA, 413 F.3d 1024,1030 (9th Cir.2005). Plaintiff has brought all four of its ESA claims under the Act's citizen-suit provision. These claims therefore -- even those which Defendant's attempt to paint as challenges to final agency action -- are not governed by the APA and its record-review rule.

The Court notes that the Kraayenbrink decision did not affect Ninth Circuit precedent with respect to the standard of review in ESA citizen suit cases, which remains arbitrary and capricious. --- F.3d 2011 ----, 2011 WL 149363. *1 (“Irrespective of whether an ESA claim is brought undr the APA or the citizen-suit provision, the APA's “arbitrary and capricious” standard applies.” (citing Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir.2007)).

The Court must now determine whether Plaintiff should be permitted to do so. This is a decision that lies within the sound discretion of the trial judge. San Francisco Baykeeper, 297 F.3d at 886. Although no specific standard has been articulated, the applicable case law suggests that a party should be permitted to supplement the record with evidence that is relevant to the question of whether relief should be granted. See Friends of the Clearwater, 222 F.3d at 560

KEITHINKING: Is Pandora's box open?  If the 9th Circuit approach to ESA litigation in Kraayenbrink becomes the national standard, then a huge procedural transformation is underway.  At a minimum, ESA cases -- once adjudicated within the confines of an administrative record prepared by the federal agencies -- will now involve large amounts of "relevant" material created by the plaintiffs and intervenors in an effort to challenge the deference otherwise accorded to the federal agencies.  But taken to logical end, could discovery be next?  

ShorelineErosionWashawayBeach.jpg
Litigation over this issue traces back to 1984, when the Federal Emergency Management Agency (FEMA) refused to comply with a consultation request from the U.S. Fish and Wildlife Service (FWS) regarding the Florida Key deer and other listed species in the Florida Keys.  In 2008, the Eleventh Circuit Court of Appeals upheld a district court ruling requiring FEMA  to comply with the Endangered Species Act (ESA) in its administration of the National Flood Insurance Program (NFIP) in the Florida Keys. See, Fla. Key Deer v. Paulison, 2008 U.S. App. LEXIS 6850 (11th Cir. Apr. 1, 2008). Later that year, the National Marine Fisheries Service (NMFS) issued a Biological Opinion that determined that implementing the National Flood Insurance Program causes jeopardy to several species of Puget Sound Salmon and Orca Whales as well as adverse modification to their habitat.  In the Biological Opinion NMFS provided a Reasonable and Prudent Alternative to modify the implementation of the NFIP in a manner that would remove the jeopardy situation.  With the assistance of a focus group representative of Puget Sound communities, including a tribal community, NMFS, and the Washington Department of Ecology, FEMA produced a model ordinance containing rules to protect human development from floods while minimizing the impact of new construction and redevelopment on aquatic and riparian habitat.  The ordinance is one of several options available to local communities to demonstrate ESA compliance, and can be adopted whole cloth, or in segments to complement existing regulations. Image from Washaway Beach on the Washington State coast from Renton Community Update.