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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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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.

« NOAA says not yet to listing of the Atlantic bluefin tuna | Main| MOU increases NOAA role in regulation of ocean energy »

U.S. District Judge in Alabama dismisses part of lawsuit related to Deepwater Horizon, but claims of alleged breach of duty to insure endangered species protection will proceed

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Defenders Of Wildlife v. Bureau Of Ocean Energy Management, Regulation, and Enforcement, et al., Civil Action No. 10–0254–WS–C, 2011 WL 2013977 (S.D. Alabama, May 23, 2011)(William H. Steele, Chief Judge).

BACKGROUND. Plaintiff, Defenders of Wildlife (“DOW”), brought this action against a collection of federal defendants, including the Bureau of Ocean Energy Management, Regulation, and Enforcement (“BOEMRE”); the United States Department of the Interior; and Ken Salazar, Secretary of the Interior (collectively, the “Federal Defendants”). The lawsuit proceeds from DOW's position that, in the wake of the Deepwater Horizon drilling rig explosion and oil spill in the Gulf of Mexico on April 20, 2010, the Federal Defendants have failed to modify their policies and practices concerning offshore oil and gas leasing operations in the Gulf as required by the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. (“NEPA ”); the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA ”); and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA ”).

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From the beginning, the BP Deepwater Horizon disaster was expected to threaten the North Atlantic bluefin tuna, sea turtles, sharks, whales, porpoises, dolphins, brown pelicans, oysters, shrimp and blue crab, menhaden and marsh-dwelling fish, beach-nesting and migratory shorebirds, and warblers, orioles, buntings, flycatchers, and swallows.  In fact, in a recent article published in BioScience, University of New Hampshire professor Fred Short and others identified 39 additional marine species, beyond the 14 already protected by federal law, that are at an elevated risk of extinction.  In other words, they found 53 species with a distribution that overlaps the area of the oil spill that are categorized as critically endangered, endangered, or vulnerable by the International Union for Conservation of Nature's (IUCN) Red List IUCN Red List; yet of these species, only 14 receive legal protection in the United States under the Endangered Species Act, the Migratory Bird Treaty Act, or the Marine Mammal Protection Act. See, Science Daily.  Photo of the Deepwater Horizon fire on April 22, 2010 by the U.S. Coast Guard, available online at TucsonSentinel.com.

THE COMPLAINT: The operative Third Amended Complaint (doc. 61) summarizes the Federal Defendants' alleged violations by asserting that BOEMRE continued accepting bids on more than 200 new deepwater leases in Lease Sale 213 after the April 2010 oil spill, without preparing a Supplemental Environmental Impact Statement, reinitiating consultation under the ESA, or insuring that its actions will not jeopardize the survival of endan-gered and threatened species. (Doc. 61, at 2.) In a nutshell, DOW contends that, by continuing to accept lease bids, the Federal Defendants have failed adequately to consider the new information gleaned from the Deepwater Horizon oil spill in administering the oil and gas leasing program in the Gulf of Mexico, and that the Federal Defendants' deficiencies in that regard violate NEPA, the ESA, and the APA...  Claim Three alleges that BOEMRE violated the APA and the ESA by failing to reinitiate consultation with the National Marine Fisheries Service (“NMFS”) and U.S. Fish and Wildlife Service (“FWS”) based on new information from the Deepwater Horizon spill showing that deepwater drilling in that area may harm endangered or threatened species and critical habitat. And in Claim Four, DOW maintains that BOEMRE violated the APA and the ESA by “proceeding with lease sales in the Gulf after the Deepwater Horizon incident ... in violation of its independent duty to insure that its actions are not likely to jeopardize the continued existence of any listed species.”

RULING RE: CLAIM THREE: The Federal Defendants maintain that Claim Three should be dismissed in its entirety because it proceeds from a false premise, namely, that BOEMRE has not reinitiated such consultation. To demonstrate the inaccuracy of DOW's position, the Federal Defendants proffer a pair of letters dated July 30, 2010, from BOEMRE to the NMFS and FWS. The letter to NMFS specifies that BOEMRE “requests that the National Marine Fisheries Service (NMFS) reinitiate consultation (based on the existing consultation and resulting Biological Opinion (BO) dated June 29, 2007) under Section 7 of the ESA on the effects of the Five–Year Outer Continental Shelf Oil and Gas Leasing Program (2007–2012) in the Central and Western Planning Areas of the Gulf of Mexico. This request is in response to the Deepwater Horizon (DWH) incident and is meant to comply with 50 C.F.R. § 402.16.”  The letter to FWS is substantively identical to the NMFS letter in all material respects...  DOW protests that deeming Claim Three moot “based on this barest of effort put forth by a federal agency would make a mockery of the ESA's command that each federal agency ensure that its activities are not likely to jeopardize the continued existence of threatened and endangered species.”  Plaintiff maintains that Claim Three is not moot because this Court could still “grant declaratory relief deeming Federal Defendants to be in violation of the ESA with respect to the Multisale Plan” and because the Federal Defendants “have not evidenced any intent to correct the ongoing ESA violations during reinitiation of consultation.”  But these arguments improperly expand the scope of Claim Three, and conflate it with Claim Four..   Count Three goes no further than to allege that BOEMRE's “failure to reinitiate consultation with NMFS and FWS violates § 7(a)(2) of the ESA ... and its implementing regulations.”  It is undisputed that BOEMRE, in fact, reinitiated such consultation back in July 2010. As such, the entire premise of Claim Three (namely, that BOEMRE has violated the ESA by failing to reinitiate consultation) has been mooted by the agency's subsequent conduct (namely, its reinitiation of consultation). There is no reason for Claim Three to remain in play, inasmuch as any need for the relief sought therein has been obviated by the Federal Defendants' actions. Stated differently, plaintiff has already gotten exactly what it asked for vis a vis this cause of action.

RULING RE: CLAIM FOUR: The Federal Defendants also move for dismissal of Claim Four, in part. In that claim, DOW alleges that in relying on “faulty opinions in proceeding with lease sales in the Gulf after the Deepwater Horizon incident,” BOEMRE has “failed to insure that there will be no jeopardy to endangered or threatened species resulting from actions it implements,” in violation of the ESA and APA. Claim Four flows from the ESA's directive in § 7(a)(2) that federal agencies must insure that their actions are not “likely to jeopardize the continued existence of any endangered or threatened species.” 16 U.S.C. § 1536(a)(2)...  Federal Defendants' Rule 12(b) Motion construes Claim Four as being geared toward future lease sales. But careful scrutiny of the Third Amended Complaint reveals no allegations in Claim Four that future lease sales approved by BOEMRE may violate the ESA's requirement that agencies insure that their actions are not likely to jeopardize listed species. Indeed, a fair reading of Claim Four shows no reference to future lease sales at all. On its face, Claim Four is aimed exclusively at past and current agency actions, and specifically BOEMRE's reliance on faulty NMFS/FWS opinions “in proceeding with lease sales in the Gulf after the Deepwater Horizon incident.” Thus, plaintiff has framed the challenged conduct on which Claim Four is grounded as being actions that BOEMRE has taken and is taking now in the wake of the Deepwater Horizon spill, rather than lease sale approvals that may or may not happen at some future time with or without certain conditions or restrictions, after the conclusion of reinitiated consultation with NMFS/FWS.

KEITHINKING: This action includes intervenors, too; namely, the American Petroleum Institute, the Independent Petroleum Association of America, the U.S. Oil & Gas Association, the International Association of Drilling Contractors, and Chevron U.S.A., Inc.  While they too filed a motion to dismiss, adding additional arguments, the end results were the same.  Claim Three was dismissed, claim four was not.  Also, in the National Environmental Policy Act (NEPA) portion of this dispute, Claim Two was not dismissed.  Claim Two focuses on Lease Sale 213, and alleges an APA violation based on BOEMRE's acceptance of bids for more than 200 new oil and gas leases in the Gulf in that lease sale following the Deepwater Horizon spill, “in reliance on the invalid conclusions of the Multisale EIS and Environmental Assessment—Finding of No Significant Impact for Sale 213 and without supplementation of the EIS based on significant new circumstances and information.”  For more information, visit the Original Complaint, Defenders of Wildlife, and Jurist.org.