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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.

« Catching Up on Federal Register announcements: delisting wolves, withdrawing plover proposals, and revising leatherback critical habitat | Main| U.S. FWS and NOAA announce ESA reform efforts »

Case updates: compensating Klamath water users; court actions on settlements in listing and Sacramento Delta disputes; potential listing of Atlantic sturgeon no basis for stay.

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Klamath Irrigation District v. United States,635 F.3d 505 (Fed. Cir. 2011).  In an article by Marten Law, Douglas W. MacDougal and Jessica K. Ferrell summarized the recent decision by the U.S. Court of Appeals for the Federal Circuit on the conflicts between the Endangered Species Act and the property rights of Klamath basin water users, explaining, in part, as follows: "The water users and irrigation districts in the Klamath seek to recover from the United States for their widely-publicized losses caused by the government’s decision in 2001, during a drought, to use the available water for fish listed under the Endangered Species Act (ESA). The plaintiffs’ claims, filed in the United States Court of Federal Claims (Court of Claims), are based on the Fifth Amendment’s Takings Clause, breach of the various contracts with the government, and breach of the Klamath Basin Compact (Compact). The Court of Claims rejected these efforts several years ago by dismissing all of plaintiffs’ claims. Plaintiffs appealed, and the United States Court of Appeals for the Federal Circuit (Court of Appeals) reversed...  On appeal to the Court of Appeals for the Federal Circuit, the panel was not certain that there was no compensable property interest under Oregon law. It accordingly certified several questions to the Oregon Supreme Court...  The Oregon Supreme Court ruled that equitable rights may well have arisen, but that specific contractual terms could have reserved those rights, or otherwise modified or eliminated them, and the outcome could change depending on that inquiry. Klamath Irrigation Dist. v. United States, 348 Or. 15, 227 P.3d 1145 (2010) (en banc) (“Certification Decision”) .... Thus the ultimate decision on the equitable rights of the districts and irrigators depends upon the nature of their contracts, which would require a hearing to determine...  On remand, the Court of Claims must: (1) consider the takings and Compact claims in light of the Certification Decision; 2) determine whether, for purposes of the breach of contract claims, the government can establish that contract performance was impossible within the meaning of the sovereign acts doctrine; and (3) decide the breach of contract claims as appropriate."  

IN RE ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION, Misc. Action No. 10-377 (EGS), MDL Docket No. 2165.  InEndangered Species and Wetland Report, Steve Davies discusses U.S. District Judge Sullivan's (D.D.C.) attempt to push the Center for Biological Diversity to join the settlement that seeks to resolve the many disputes over the wildlife agency's delayed responses to the many pending petitions to list species.  While the U.S. Fish & Wildlife Service and WildEarth Guardians reached an agreement, CBD has refused to sign on, and the judge stayed the case for another month directing CBD to try again.  See also, Joint Motion For Approval Of Settlement Agreement And Order Of Dismissal Of Guardians’ Claims (May 10, 2011).  

Coalition For A Sustainable Delta v. Mccamman, No. 1:08–Cv–00397 OWW GSA, 2011 Wl 1332196 (E.D. Cal. April 6, 2011)(Oliver W. Wanger, U.S. District Judge)(Memorandum Decision Granting Request For Approval Of Consent Decree)
    BACKGROUND: On January 29, 2008, the Coalition for a Sustainable Delta (and other water users interests) filed suit against Defendant John McCamman, in his Official Capacity as Director of the California Department of Fish and Game (“DFG”), alleging that State Defendant's enforcement of California's striped bass sport fishing regulations, Cal.Code Regs. tit. 14, § 5.75, cause a striped bass population that is higher than it otherwise would be in nature in the Sacramento–San Joaquin Delta and associated rivers and tributaries, which causes “take” of Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt (collectively, “Listed Species”), in violation of section 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1538. State Defendant disputes that DFG's enforcement of the striped bass sport fishing regulations causes unlawful “take.” Over a period of more than two months, Plaintiffs and State Defendants (collectively, “Moving Parties”) engaged in arms-length settlement negotiations. Defendant–Intervenors claim to have been excluded from the negotiations until late in the process, after a tentative agreement had already been reached. Defendant–Intervenors declined to sign the settlement and made a counter-offer that was not adopted by the Moving Parties. The Moving Parties now move for the entry of a order approving their Settlement Agreement under the standards applicable to consent decrees.
    EXCERPT: The Settlement Agreement is Otherwise in the Public Interest.  The Agreement serves the public interest by avoiding protracted litigation and conserving re-sources. See Citizens for a Better Environment v. Gorsuch, 718 F.2d 1126, 1117 (D.C.Cir.1983) (“Not only the parties, but the general public as well, benefit from the saving of time and money that results from the voluntary settlement of litigation.”). The Agreement requires State Defendant to address the issue of predation in a manner that is consistent with the purposes of the ESA and with the conservation and protection of the Listed Species. See United States v. Salt River Project Agric. Improvement and Power Dist., 2008 WL 5332023, at *3 (D.Ariz. Dec. 22, 2008) (finding Consent Decree served the public interest because it was consistent with the purposes of the Clean Air Act). The Settlement Agreement ensures that the combined expertise and resources of the State Defendant, NOAA Fisheries, and FWS, the state and federal agencies responsible for protecting wildlife resources (including the Listed Species) in the Delta and tributaries thereto, are brought to bear on the issue of striped bass predation. The Agreement also provides a means for funding and researching predation impacts on one or more fish species listed under the federal and/or California Endangered Species Acts in the Delta and/or the anadromous waters of the Sacramento and San Joaquin river watersheds. Settlement Agreement at 2, 17.

Delaware Dep’t of Natural Resources v. U.S. Army Corps of Engineers, 751 F.Sup.2d 715 (D. Delaware, Nov. 16, 2010).
    BACKGROUND: Delaware Department of Natural Resources and Environmental Control and related parties brought action pursuant to Administrative Procedure Act to challenge decision made by U.S. Army Corps of Engineers (Corps) and related defendants to proceed with dredging project to deepen main navigation channel of Delaware River from 40 feet to 45 feet, allegedly without obtaining requisite federal and state approval pursuant to Clean Water Act, the Clean Air Act, Coastal Zone Management Act and Delaware Code.  However, on October 26, 2010, environmental plaintiffs filed a motion to stay the proceedings because, on October 6, 2010, the National Marine Fisheries Service (“NMFS”) proposed to list Atlantic sturgeon, a fish native to the Delaware River channel, as endangered under the Endangered Species Act (“ESA”). This may result in the Atlantic sturgeon's gaining protected status under the ESA “within the next twelve months.”
    EXCERPT OF ESA PORTION OF RULING: "In determining how to exercise its discretion with respect to a motion to stay, a court considers such factors as: (1) the length of the stay requested; (2) the “hardship or inequity” that the movant would face in going forward with the litigation; (3) the injury that a stay would inflict upon the non-movant; and (4) whether a stay will simplify issues and promote judicial economy. See Landis v. North Am. Co.,  299 U.S. 248 at 254–55 (1936)  … Upon careful review, environmental plaintiffs do not present any ripe claims for the court's consideration.  The proposed listing has just recently occurred and the Corps has yet to render any determinations. A formal conference is required if the Deepening Project is “likely to jeopardize the continued existence” of the Atlantic sturgeon, 16 U.S.C. § 1536(a)(4)—a finding yet to be made by the Corps. The Corps states that it is presently conferring with NMFS to determine its obligations under the ESA in light of the proposed listing of the Atlantic sturgeon, and may request a formal conference as discussions progress … Based on the foregoing, the court finds that plaintiffs have not met their burden of persuasion that, on balance, a stay is favored in this case."  On the merits, the Court upheld the Corps action, finding that project fell within the navigation exception of the Clean Water Act, which exempted Corps from regulation under CWA and affiliated state programs, and the Corps' decision to invoke the navigation exception was not arbitrary and capricious.