1 of 15 documents united states code service

7.--Orders

FERC's rejection of petition to initiate consultation, pursuant to 16 USCS § 1536, with National Marine Fisheries Service was not order of Commission and, therefore, not reviewable. American Rivers v FERC (1999, CA9) 170 F3d 896, 99 CDOS 1895, 99 Daily Journal DAR 2427, 29 ELR 21053.

Decision of FDA that it could not take regulatory action over genetically engineered ornamental fish was not type of agency action that would trigger additional reporting requirements by FDA under Endangered Species Act. Int'l Ctr. for Tech. Assessment v Thompson (2006, DC Dist Col) 421 F Supp 2d 1.

8.--Permits

National Marine Fisheries Service's issuance of fishing permits to boats allowing fishing on high seas clearly constitutes "agency action" sufficient to trigger protections of Endangered Species Act. Turtle Island Restoration Network v Nat'l Marine Fisheries Serv. (2003, CA9 Cal) 340 F3d 969, 56 Envt Rep Cas 2067, 33 ELR 20262.

EPA complied with Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., in issuing general permit for storm water discharge without consulting with Fish and Wildlife Service and/or National Marine Fisheries Service upon receipt of notice of intent (NOI) and completion of storm water pollution prevention plan (SWPPP) because filing of NOI and creation of SWPPP by private actor did not constitute "federal action," and, thus, did not implicate ESA's consultation requirements. Tex. Indep. Producers & Royalty Owners Ass'n v EPA (2005, CA7) 410 F3d 964, 60 Envt Rep Cas 1513, 35 ELR 20131, reh den, reh, en banc, den (2005, CA7) 2005 US App LEXIS 18825.

Where environmental organization challenged permit granting right-of-way across federal lands to water diversion structure on ground that U.S. Forest Service failed to update its assessment of impacts on endangered species, Service did not retain ability to reconsider permit based on newly listed species or newly designated critical habitat, and thus Service was not required to update its assessment. Forest Guardians v United States Forest Serv. (2004, DC Ariz) 370 F Supp 2d 978.

9.--Planning documents

Land and Resource Management Plans (LRMP) were framework for making later project decisions rather than collection of project decisions, and standards, guidelines, policies, criteria, land designations, and like appearing within LRMP did not constitute "action" requiring consultation under 16 USCS § 1536(a)(2); instead, activities or programs authorized, funded, or carried out, by U.S. Forest Service were "action" of which § 1536(a)(2) spoke; therefore, because groups had not alleged any activity, project, or program authorized, funded, or carried out by Forest Service that constituted "action" within § 1536(a)(2), Forest Service had no duty to consult with Fish and Wildlife Service, and district court's dismissal of request for mandatory injunctive relief was affirmed. Forest Guardians v Forsgren (2007, CA10 NM) 478 F3d 1149, 64 Envt Rep Cas 1225, 37 ELR 20053.

Although U.S. Bureau of Land Management (BLM) argued that it simply completed supplemental environmental analysis occasioned by prior resource management plan to open wilderness area to oil and gas drilling, finding of no significant environmental impact was final agency action which required prior conferral with U.S. Fish and Wildlife Service since prior status quo was deferral of additional leasing and environmental finding was decision to depart from that policy. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.

10.--Other particular actions

District court erred in granting summary judgment for environmental organizations in their action seeking to compel Bureau of Land Management (BLM) to initiate consultation under 16 USCS § 1536(a)(2), part of Endangered Species Act, 16 USCS §§ 1531 et seq., in relation to water diversions in central Idaho; BLM's failure to regulate certain vested rights-of-way held by private landowners to divert water for irrigation uses did not constitute "action authorized, funded, or carried out" by BLM so as to require consultation pursuant to 16 USCS § 1536(a)(2) because duty to consult was triggered only by affirmative actions; further, BLM's determination to limit its power to regulate rights-of-way that vested prior to enactment of Federal Land Policy Management Act, 43 USCS §§ 1701 et seq., did not constitute ongoing agency action. W. Watersheds Project v Matejko (2006, CA9 Idaho) 456 F3d 922, 62 Envt Rep Cas 2009, 36 ELR 20144, amd on other grounds, reh den (2006, CA9 Idaho) 468 F3d 1099 and reprinted as amd (2006, CA9 Idaho) 468 F3d 1099.

Federal Emergency Management Agency (FEMA) has discretion to consider endangered and threatened species in its administration of National Flood Insurance Plan under National Flood Insurance Act of 1968, 42 USCS § 4022(b)(1)(b); thus, FEMA's failure to do so with respect to providing flood insurance in county within Florida keys that was critical habitat for 10 listed species violated Endangered Species Act, 16 USCS § 1536(a)(2), and was judicially reviewable. Fla. Key Deer v Paulison (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.

Policy of Forest Service leaving regulation of game "baiting" on National Forest System lands to states in which lands lie does not constitute "major federal action" triggering environmental impact statement requirement. Fund for Animals v Thomas (1997, App DC) 326 US App DC 412, 127 F3d 80, 28 ELR 20196.

Claim of nonprofit environmental groups, seeking declaratory and injunctive relief on grounds that U.S. Forest Service (USFS) violated Endangered Species Act (ESA) by failing to engage in consultations with National Marine Fisheries Service (NMFS) on two Land Resource Management Plans (LRMPs) for forests regarding effect of LRMPs on threatened chinook salmon, is granted summarily, where LRMPs set forth standards and guidelines for modification of, and multiple use of resources within, listed species habitat, because LRMPs constitute agency actions which are being and will be applied to areas in which listed chinook are present, so USFS must apply 3-step consultation procedure set forth in ESA to LRMPs. Pacific Rivers Council v Robertson (1993, DC Or) 854 F Supp 713, affd in part and revd in part on other grounds, remanded (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt Rep Cas 1078, 24 ELR 21367, injunction gr, in part (1994, DC Or) 1994 US Dist LEXIS 21351 and cert den (1995) 514 US 1082, 115 S Ct 1793, 131 L Ed 2d 721, 40 Envt Rep Cas 1896 and (criticized on other grounds in Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973) and (criticized on other grounds in Forest Guardians v Forsgren (2007, CA10 NM) 478 F3d 1149, 64 Envt Rep Cas 1225, 37 ELR 20053).

Federal Emergency Management Agency (FEMA) had to consult on its minimum eligibility criteria that was related to National Flood Insurance Act, 42 USCS §§ 4001 et seq., because FEMA had discretion to amend its regulations and because those regulations had ongoing impact on use of floodplains. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

Federal agency's authorization, funding, and use of chemical fire retardant to fight fires on national forests was major federal action under Endangered Species Act, 16 USCS §§ 1531 et seq.; therefore, agency was required under ESA to consult with U.S. Fish and Wildlife Service concerning agency's regular use of chemical fire retardant. Forest Serv. Emples. for Envtl. Ethics v United States Forest Serv. (2005, DC Mont) 397 F Supp 2d 1241.

Residential programs of Department of Housing and Urban Development under 42 USCS § 1441 and Secretary of Veterans Affairs under 38 USCS §§ 3701-3764, did not require environmental assessment under 42 USCS § 4332, or violate Endangered Species Act, 16 USCS § 1536(a)(2), with respect to San Pedro Riparian National Conservation Area, 16 USCS § 460xx; agencies merely provided financial backing and had not engaged in agency action as defined in § 1536(a)(2). Ctr. for Biological Diversity v United States HUD (2008, DC Ariz) 541 F Supp 2d 1091, affd (2009, CA9 Ariz) 359 Fed Appx 781.

Concurrences of United States Fish & Wildlife Service and National Marine Fisheries Service in United States Forest Service's "no effect" determination were not final agency actions and, thus, not subject to judicial review under Administrative Procedure Act, 5 USCS §§ 701 et seq., because Forest Service's obligations, and its potential liability, arose under Endangered Species Act, 16 USCS §§ 1531 et seq., and were not altered by concurrences. Sierra Forest Legacy v United States Forest Serv. (2009, ND Cal) 598 F Supp 2d 1058.

Unpublished Opinions

Unpublished: Environmental groups' challenge to Federal Energy Regulatory Commission's (FERC) relicensing of Mill Creek hydroelectric project failed because groups did not establish that FERC failed to ensure that operation of project was not likely to jeopardize continued existence of endangered southwestern willow flycatcher as required under Endangered Species Act (ESA); further, reinitiation of consultation was not required under 16 USCS § 1536(a)(2) because FERC was no longer engaged in agency "action" for purposes of ESA after it issued its license order. San Bernardino Valley Audubon Soc'y v FERC (2007, CA9) 242 Fed Appx 462.

11. Duty to protect endangered species, generally

Requirement under 16 USCS § 1536(a)(2) to insure no jeopardy to endangered or threatened species does not apply to Environmental Protection Agency's approval of transfer to state of water quality permitting authority under 33 USCS § 1342(b), since 50 C.F.R. § 402.03 appropriately construed no-jeopardy duty to apply only to discretionary actions and approval of transfer of permitting authority was mandatory once state met triggering criteria. Nat'l Ass'n of Home Builders v Defenders of Wildlife (2007) 551 US 644, 127 S Ct 2518, 168 L Ed 2d 467, 64 Envt Rep Cas 1513, 37 ELR 20153, 20 FLW Fed S 454.

16 USCS § 1536 imposes on all federal agencies mandatory obligation to insure that any action authorized, funded, or carried out by them does not jeopardize existence of endangered species or destroy critical habitat of such species; this duty is not fulfilled by simple recognition in environmental impact statement and administrative record that highway officials recognized and considered danger posed to endangered species, and they must take necessary steps to insure that highway project will not jeopardize species or modify its habitat. National Wildlife Federation v Coleman (1976, CA5 Miss) 529 F2d 359, 9 Envt Rep Cas 1465, 6 ELR 20344, 32 ALR Fed 306, reh den (1976, CA5 Miss) 532 F2d 1375, 6 ELR 20648 and cert den (1976) 429 US 979, 50 L Ed 2d 587, 97 S Ct 489, 9 Envt Rep Cas 1559.

Although 1979 amendments to Endangered Species Act (16 USCS § 1536(a)(2), (g), (h)) softened obligation on agency from requiring agency to insure species would not be jeopardized to requiring agency to insure that jeopardy is not likely, agencies continue to be under substantive mandate to use all methods and procedures which are necessary to prevent loss of any endangered species, regardless of cost. Roosevelt Campobello International Park Com. v United States EPA (1982, CA1) 684 F2d 1041, 17 Envt Rep Cas 2023, 12 ELR 20903.

Secretary of Interior has affirmative duty under Endangered Species Act (16 USCS §§ 1531 et seq.) to bring endangered species to point at which they may be removed from protected status; such duty is not met by promulgating regulations which do not attack cause or causes of population depletion of species. Connor v Andrus (1978, WD Tex) 453 F Supp 1037.

Endangered Species Act (16 USCS §§ 1531 et seq.) requires Secretary to use best data available and to continue acquiring information until affirmative finding of no jeopardy can be made; Secretary cannot defer investigations when it is possible and necessary to undertake them; under § 1536(d), Secretary may allow projects to proceed even when information about jeopardy is missing, as long as he ensures that no actions are taken that will have irremediable consequences. False Pass v Watt (1983, DC Alaska) 565 F Supp 1123, 18 Envt Rep Cas 2129, 13 ELR 20905, affd (1984, CA9 Alaska) 733 F2d 605, 20 Envt Rep Cas 1705, 14 ELR 20398, 81 OGR 457 (criticized in Conner v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379).

Reduction prohibited by Endangered Species Act (ESA), 16 USCS § 1536(a)(2), and 50 CFR 402.02, is reduction of pre-agency action likelihood of survival and recovery, i.e., no deterioration of status quo, as opposed to improvement on status quo. Cabinet Res. Group v United States Fish & Wildlife Serv. (2006, DC Mont) 465 F Supp 2d 1067.

Where plaintiff Native American and environmental organizations and their members filed suit against defendants, Secretaries of Departments of Interior and Commerce, challenging No Surprises Rule and Permit Revocation Rule promulgated under 16 USCS § 1539, arguing that, under decision of another circuit court, recovery-based standard had to be applied to incidental taking permits, argument failed because other circuit's case concerned 16 USCS § 1536(a), which was entirely different section of Endangered Species Act, and same logic could not be applied to ITPs; while recovery-based definition of conservation was central to defining critical habitats, same could not be said for ITPs, and, instead, specific statutory provisions of 16 USCS § 1539 demonstrated Congress did not intend ITPs to have to promote or maintain recovery of listed species. Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235.

Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., authorizes Secretary of United States Department of Interior under 16 USCS § 1536(a)(1) to live trap and transplant (reintroduce) rare species, if necessary, to bring endangered or threatened species to point at which protection under ESA is no longer necessary. Defenders of Wildlife v Tuggle (2009, DC Ariz) 607 F Supp 2d 1095.

Endangered Species Act does not require EPA to consider species listed on World Wildlife Fund list, nor species listed as "vulnerable." In re: Chukchansi Gold Resort and Casino Waste Water Treatment Plant Permit No. CA 0004009 (USEPA Environmental Appeals Board, 2009) 2009 EPA App. LEXIS 4.

12.--Duties derived from other statutes

Ninth Circuit agreed with Eighth Circuit's determination that even though EPA registered pesticides under Federal Insecticide, Fungicide, and Rodenticide Act, it also had to comply with Endangered Species Act when threatened or endangered species were affected. Wash. Toxics Coalition v EPA (2005, CA9 Wash) 413 F3d 1024, 60 Envt Rep Cas 1940, 35 ELR 20138, cert den (2006) 546 US 1090, 126 S Ct 1024, 163 L Ed 2d 854 and (criticized in Grand Canyon Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).

Fish & Wildlife Service (FWS) is not required to ensure compliance with federal and state law before issuing incidental taking statement(ITS); there is no evidence that FWS has ever interpreted its regulatory definitions to impose sweeping duty to require compliance with all laws before issuing ITS; requiring FWS to comply with all laws including those that are completely unrelated to preservation and conservation efforts would impose enormous burden on FWS, which is already operating with serious backlog of mandatory duties, resulting in diversion of scarce resources away from conservation efforts. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2006, CA9 Cal) 450 F3d 930, 62 Envt Rep Cas 1873, 36 ELR 20102.

EPA approved Oregon's standards in reliance on National Marine Fisheries Service's facially arbitrary no-jeopardy determination, notwithstanding extensive evidence in record indicating that criteria were harmful to threatened species; accordingly, environmental organization's motion for summary judgment on ninth claim for relief was granted and EPA was directed to promulgate temperature, intergravel dissolved oxygen, use designation, and narrative criteria that satisfied agency's obligations under § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), or issue new determination on existing criteria based on no-jeopardy finding that was reasonably supported by available evidence. Northwest Envtl. Advocates v United States EPA (2003, DC Or) 268 F Supp 2d 1255.

13.--Duty to consult

16 USCS § 1536 duty to consult can be ongoing, and consultation must be reinitiated under certain circumstances. Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal DAR 7051, 53 Envt Rep Cas 2129, 31 ELR 20778.

Although Army Corps of Engineers did not deny that some activities authorized under nationwide permits (NWPs) may have affected endangered panthers, Corps had not consulted with Fish and Wildlife Service (FWS) on four challenged nationwide permits; thus, Corps failed to comply with its obligation under 16 USCS § 1536(a)(2), part of Endangered Species Act, 16 USCS §§ 1531 et seq., to consult with FWS, and its issuance of NWPs was not in accordance with law. Nat'l Wildlife Fed'n v Brownlee (2005, DC Dist Col) 402 F Supp 2d 1, 60 Envt Rep Cas 1111, app dismd (2006, App DC) 2006 US App LEXIS 620.

Bureau of Reclamation had no duty to consult Fish and Wildlife Services concerning effect of All-American Canal Lining Project on endangered species and habitat in wetlands in Mexico pursuant to § 7(a) of Endangered Species Act, 16 USCS § 1536(a), because Congress did not intend § 1536 to apply extraterritorially. Consejo de Desarrollo Economico de Mexicali v United States (2006, DC Nev) 438 F Supp 2d 1207, subsequent app, remanded on other grounds (2007, CA9 Nev) 482 F3d 1157, 37 ELR 20078.

Fish and Wildlife Service and National Marine Fisheries Service acted arbitrarily and capriciously in deciding to promulgate counterpart regulations at 69 Fed. Reg. 47,732, and two Services failed to comply with their mandate under § 7 of Endangered Species Act, 16 USCS § 1536, to insure that their actions were not likely to jeopardize listed species, when two Services knew of substantial flaws in Environmental Protection Agency's methodologies and that these flaws were highly likely to result in overall under-protection of listed species as compared to general consultation regulations. Wash. Toxics Coalition v United States DOI (2006, WD Wash) 457 F Supp 2d 1158, 64 Envt Rep Cas 1280, 36 ELR 20190.

Because defendant Fish and Wildlife Service (FWS) determined that there was no suitable scrub jay habitat in intervenor developer's project area, under 16 USCS § 1536(a)(3), defendant Army Corps of Engineers was under no obligation to consult with FWS with respect to that species; plaintiff environmental groups' Endangered Species Act claim failed. Sierra Club v Van Antwerp (2010, DC Dist Col) 719 F Supp 2d 58, 40 ELR 20180, injunction den, remanded (2010, DC Dist Col) 719 F Supp 2d 77.

14.--Limitations on duty

While, under 16 USCS § 1536, proposed mitigation measures must insure against jeopardy to protected species if they work as intended, while there must be rational reason to expect them to work as intended, and while they must in fact be possible to implement, there was no requirement for Fish and Wildlife Service to ensure overall success of plan. Am. Rivers, Inc. v United States Army Corps of Eng'rs. (2005, CA8 Minn) 421 F3d 618, 61 Envt Rep Cas 1038, 35 ELR 20173, cert den (2006) 547 US 1097, 126 S Ct 1880, 164 L Ed 2d 566 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566, 63 Envt Rep Cas 1128 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566.

Section 7(a)(1) of Endangered Species Act, 16 USCS § 1536(a)(1), does not mention species-specific programs; rather, EPA may reasonably interpret its § 7(a)(1) obligations to extend no further than engaging in conservation programs that benefit threatened species. Northwest Envtl. Advocates v United States EPA (2003, DC Or) 268 F Supp 2d 1255.

15.--Particular species

Because there was rational connection between facts that were found in Biological Opinion (BiOp) and choice that was made to adopt Reasonable and Prudent Alternative (RPA), and because court must defer to special expertise of Fish and Wildlife Service (FWS) in drafting RPAs, FWS's decision to eliminate flow changes from BiOp RPA for protected birds was not arbitrary and capricious. Am. Rivers, Inc. v United States Army Corps of Eng'rs. (2005, CA8 Minn) 421 F3d 618, 61 Envt Rep Cas 1038, 35 ELR 20173, cert den (2006) 547 US 1097, 126 S Ct 1880, 164 L Ed 2d 566 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566, 63 Envt Rep Cas 1128 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566.

Where plan for irrigation project failed to show how threatened fish species was being protected in years where there was not adequate water supply, and life span was disregarded, plan was set aside as arbitrary and capricious under 16 USCS § 1536 since there was not rational connection between facts and conclusions. Pac. Coast Fed'n of Fishermen's Ass'ns v United States Bureau of Reclamation (2005, CA9 Cal) 426 F3d 1082, 61 Envt Rep Cas 1417, 35 ELR 20215, injunction gr, on remand (2006, ND Cal) 2006 US Dist LEXIS 24893, amd on other grounds, reconsideration gr, motion gr (2006, ND Cal) 2006 US Dist LEXIS 36894 and affd (2007, CA9 Cal) 226 Fed Appx 715, 64 Envt Rep Cas 1330.

Fish & Wildlife Service was not required to ensure compliance with federal and state law before issuing incidental takings statement to company that sought to mine sand and gravel, pumping water from river where unarmored threespine stickleback was known to inhabit. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2006, CA9 Cal) 450 F3d 930, 62 Envt Rep Cas 1873, 36 ELR 20102.

Under § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), Federal Emergency Management Agency was properly enjoined from issuing national flood insurance for new developments in suitable habitats of 10 endangered species in particular county in Florida keys because it failed to adopt species- and location-specific conservation programs to protect endangered species. Fla. Key Deer v Paulison (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.

Army Corps of Engineers satisfied requirements of 16 USCS § 1536 where it continually consulted with Fish and Wildlife Service as to plant species even before species was placed on endangered list and initiated propagation and transplant activities which were partially successful. Enos v Marsh (1984, DC Hawaii) 616 F Supp 32, 22 Envt Rep Cas 1072, affd (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep Cas 1124, 15 ELR 20853.

Environmental group's claim that Commerce Secretary violated duty under 16 USCS § 1536(a)(1) to conserve threatened and endangered species of sea turtles is denied summarily, despite group's well-stated concern that biological opinions and actions of federal agencies are deficient, because § 1532(3) clearly gives some measure of discretion to agencies by requiring use of methods "necessary" to conserve species, and agencies' determination that measures set forth in biological opinions, incidental-take statements, and emergency response plan were sufficient to satisfy their statutory duty to conserve is rational and well supported by evidence in record. Center for Marine Conservation v Brown (1996, SD Tex) 917 F Supp 1128, 26 ELR 21073.

Army Corps of Engineers sufficiently satisfied its obligation under 16 USCS 1536(a)(1) to carry out program for conservation of endangered Florida panthers in its Southwest Florida Environmental Impact Statement (SWFEIS); SWFEIS reviewed key documents pertaining to panther conservation, habitat preferences of panther, and management activities underway to preserve preferred habitat, and SWFEIS also set forth draft review criteria for Corps to use during permit approval process. Nat'l Wildlife Fed'n v Norton (2004, DC Dist Col) 332 F Supp 2d 170, 59 Envt Rep Cas 1576.

National marine fisheries service's use of model to help agency understand population trends of loggerhead turtles in response to new conservation measures was not arbitrary and capricious and contrary to purposes of § 7(a)(2) of Endangered Species Act because model was based on painstaking analysis of existing literature on life cycle of loggerhead sea turtles and bore rational relationship to reality it purported to represent. Oceana, Inc. v Evans (2005, DC Dist Col) 384 F Supp 2d 203.

Water users' Commerce Clause claim alleging that application of 16 USCS § 1536(a)(2) to delta smelt, intrastate species, was rejected where it was rational for Congress to choose to protect all species given that loss of any one species could have triggered decline of entire ecosystem, and Endangered Species Act had strong underpinnings in market regulation given that one of its regulatory goals was to protect monetarily valuable natural resource, i.e., planet's biodiversity. Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 663 F Supp 2d 922.