1 of 15 documents united states code service

33.----Consultation not required

Where Army Corps of Engineers issued permits to two developments under Clean Water Act, Corps was not required to consult with Fish and Wildlife Service on effect of developments on Arizona cactus ferruginous pygmy-owl under Endangered Species Act and 50 C.F.R. § 402.14(a), and Corps' "no effects" ruling rested on firm foundation that no pygmy-owls had been found to live within either project area. Defenders of Wildlife v Flowers (2005, CA9 Ariz) 414 F3d 1066, 60 Envt Rep Cas 1999, 35 ELR 20145.

District court erred in granting summary judgment in favor of environmental organizations in their action seeking to compel Bureau of Land Management (BLM) to initiate consultation under 16 USCS § 1536(a)(2) in relation to water diversions in Idaho; BLM's failure to regulate 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); 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) 468 F3d 1099.

Petition for review of decision by Federal Energy Regulatory Commission (FERC) not to initiate formal consultation pursuant to 16 USCS § 1536(a)(2) with National Marine Fisheries Service regarding utility company's operation of hydroelectric project that was allegedly killing Chinook Salmon was denied as agency action was concluded when FERC issued project license; although environmental groups argued that continuing operation of project by utility company was agency "action" within meaning of § 1536(a)(2), consultations under statute stemmed only from affirmative actions of agency, and FERC had proposed no such action. Cal. Sportfishing Prot. Alliance v FERC (2006, CA9) 472 F3d 593, 36 ELR 20245.

Federal agency's failure to conduct formal consultation under § 7 of Endangered Species Act (ESA), of promulgation of rule as to salmon take under § 4(d) of ESA, 16 USCS § 1533(d), at general, preliminary level, was not arbitrary and capricious. Wash. Envtl. Council v Nat'l Marine Fisheries Serv. (2002, WD Wash) 32 ELR 20570.

In promulgating 50 CFR § 21.48, order managing U.S. population of double-crested cormorants, Fish and Wildlife Service (FWS) did not violate Endangered Species Act, 16 USCS §§ 1531 et seq., by not seeking formal consultation under 16 USCS § 1536(a)(2) because FWS-Endangered Species Division issued written concurrence that order was not likely to adversely affect any protected species and because that determination was based on agencies' understanding of best available data. Fund for Animals v Norton (2005, SD NY) 365 F Supp 2d 394, affd (2008, CA2 NY) 538 F3d 124, 38 ELR 20213.

Army Corps of Engineers failed to comply with its obligation under § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), to consult with Fish and Wildlife Service (FWS), and consultation with FWS may or may not have resulted in Corps modifying its general nationwide permits; however, because Corps' finding of no significant impact and minimal impact finding under Clean Water Act (CWA), 33 USCS §§ 1251 et seq., were closely intertwined with Corps' compliance with § 7(a)(2), both sides' motions for summary judgment were denied on claims under CWA and National Environmental Policy Act, 42 USCS § 4331 et seq. 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.

While Army Corps of Engineers' failure to reinitiate consultation had been held as not arbitrary and capricious, it was conceivable that defendant U.S. Fish & Wildlife Service's expertise could render its failure to do so improper; thus, plaintiff Indian Tribe's claim under 16 USCS § 1536, part of Endangered Species Act, was not dismissed. Miccosukee Tribe of Indians v United States (2006, SD Fla) 430 F Supp 2d 1328, 19 FLW Fed D 833, motions ruled upon (2007, SD Fla) 2007 US Dist LEXIS 32612, summary judgment gr, motion den, as moot (2007, SD Fla) 528 F Supp 2d 1317, affd in part and revd in part on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.

Florida was denied injunctive relief requiring Army Corps of Engineers to maintain recommended flow of river waters downstream from dam in order to protect critical habitat of mussel species listed as threatened and endangered because Florida failed to show either that Corps failed to consult with Fish and Wildlife Service to ensure that its actions did not destroy critical habitat under16 USCS § 1536(a)(2) or that Corps performed illegal taking of such habitat under 16 USCS § 1538(a)(1)(B); absent such showings, Florida failed to meet its burden of demonstrating that it had likelihood of success on merits. Alabama v United States Army Corps of Eng'rs (2006, ND Ala) 441 F Supp 2d 1123.

Where plaintiff environmental groups alleged defendant U.S. Army Corps of Engineers violated Endangered Species Act in granting 120-day extension of agricultural fill permit, challenge failed because Corps, not faced with any change in circumstances, and having determined no action would take place as to intervenor permittee's possible future plans prior to permit's expiration, consultation with U.S. Fish and Wildlife Service and/or National Marine Fisheries Service under 16 USCS § 1536 was not required. Nat'l Parks Conservation Ass'n v United States Army Corps of Eng'rs (2006, SD Fla) 446 F Supp 2d 1322, 20 FLW Fed D 54.

There was no procedural violation by United States Fish & Wildlife Service and National Marine Fisheries Service in failing to base their concurrences with "no effect" determination of United States Forest Service on best scientific and commercial data available because Forest Service never initiated formal consultation and there was no consultation requirement imposed on Wildlife Services, including use of best scientific and commercial data under 16 USCS § 1536(a)(2). Sierra Forest Legacy v United States Forest Serv. (2009, ND Cal) 598 F Supp 2d 1058.

In a case in which a timber industry group and others sued the Director of the Bureau of Land Management (BLM) and other federal officials and filed a motion to enforce a 43 USCS § 1181a settlement agreement, arguing that the BLM breached the agreement's implied covenant of good faith by promulgating the contemplated revised BLM Resource Management Plan without initiating consultation with the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration about the BLM's Plan's impact on endangered or threatened species, there was no evidence of the BLM's subjective bad faith, the BLM's no effect determination was not facially invalid, and any consulting duty may have been satisfied, plaintiffs' theory of breach was too tenuous to support an enforcement order. Am. Forest Res. Council v Caswell (2009, DC Dist Col) 631 F Supp 2d 30, 39 ELR 20147.

34.--Contents of consultation

Consultation with Secretary under 16 USCS § 1536 does not require acquiescence in his opinion, and should difference of opinion arise as to given project, responsibility for decision after consultation is not vested in Secretary but in agency involved, such decision being subject to judicial review. Sierra Club v Froehlke (1976, CA8 Mo) 534 F2d 1289, 8 Envt Rep Cas 1944, 6 ELR 20448 (superseded by statute on other grounds as stated in City of Oxford v FAA (2005, CA11) 428 F3d 1346, 35 ELR 20219, 18 FLW Fed C 1093).

Although plaintiffs argued that forest service violated § 7 of Endangered Species Act (ESA) by failing to properly consult with Fish and Wildlife Service (FWS) to insure that project would not adversely affect Canada lynx (listed species under ESA), that FWS failed to list critical habitat for lynx even though such listing was required concurrently with listing determination, and that action was arbitrary and capricious because administrative record was devoid of specific data on lynx populations within last 24 years, forest service demonstrated that it properly considered lynx habitat and properly consulted with FWS, and that consultation, coupled with previously developed lynx conservation strategies and court's general deference to expertise of agencies, demonstrated that defendants' analysis regarding Canada lynx was not arbitrary and capricious. Sierra Club v Bosworth (2005, DC Minn) 352 F Supp 2d 909, 59 Envt Rep Cas 2004.

Where U.S. Bureau of Land Management and U.S. Fish and Wildlife Service conferred under 16 USCS § 1536(a)(2) and determined that there would be no significant environmental impact from oil and gas drilling on parcels of land inhabited by threatened species, agencies' conferral was inadequate since there was no consideration of effects that could result from future development in entire action area, such as fugitive dust emissions, additional roads, and runoff. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.

16 USCS § 1536 and Secretary's regulations require consideration of not only impacts of particular project subject to consultation, but also cumulative effects of other activities or programs which may have similar impacts on listed species or its habitat; focus of consultation should not be limited to individual impacts of activity under review, but rather consultation should also look at cumulative impacts of all similar projects in area; rule of reason should be applied, considering sequence of impacts, degree of administrative discretion remaining to be exercised, and similar factors. Cumulative Impacts--§ 7 of Endangered Species Act (1978) 85 ID 275.

35.--Effect on final decision

Once federal agency has had meaningful consultation with Secretary of Interior concerning actions that may affect endangered species, final decision whether to proceed with action lies with agency itself and 16 USCS § 1536 does not give Department of Interior veto power over actions of other federal agencies, provided required consultation has occurred. 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.

Where construction work on features of Modified Water Deliveries Project and another prior authorized project was not dependent on newly adopted alternative plan that was not in original environmental impact statement, but was fully coordinated and approved by U.S. Fish and Wildlife Service at time those projects were approved, and consultation was completed upon issuance of Biological Opinion, defendant U.S. Army Corps of Engineers did not violate 16 USCS § 1536. Miccosukee Tribe of Indians v United States (2006, SD Fla) 420 F Supp 2d 1324, 62 Envt Rep Cas 1783, 19 FLW Fed D 412, injunction den, motion den (2007, SD Fla) 509 F Supp 2d 1288, 37 ELR 20196.

Timber contractor erred in arguing that it was not subject to requirements of 16 USCS § 1536(d) where even though Forest Service had suspended its timber sales contracts before beginning consultation with Fish and Wildlife Service, once that consultation was initiated, contractor was barred from making any irreversible or irretrievable commitment of resources which has effect of foreclosing formulation or implementation of any reasonable and prudent alternative to timber sale contract. Scott Timber Co. v United States (2005) 64 Fed Cl 130, 59 Envt Rep Cas 2059, subsequent app (2007, CA FC) 224 Fed Appx 972, reh den (2007, CA FC) 2007 US App LEXIS 17668.

36.--Standing

Nonprofit organization that seeks to protect threatened species has direct interest in seeing that Fish and Wildlife Service complies with 16 USCS § 1536(a)(2); thus, such organization has standing to bring suit under 16 USCS § 1540. 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.

Environmental advocacy organization had standing under U.S. Const. art. III to bring procedural challenges to general permit for storm water discharges under Endangered Species Act, 16 USCS § 1531 et seq., because claimed harm was procedural injury stemming from EPA's failure to consult with Fish and Wildlife and/or National Marine Fisheries Service upon receipt of notice of intent and completion of storm water pollution prevention plan and organization alleged that polluted conditions diminished its members' fishing in bodies of water inhabited by endangered species. 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.

United States Court of International Trade erred in concluding that nonprofit environmental organizations' 15 USCS § 1536(a)(2) claim did not satisfy redressability prong of U.S. Const. art. III standing analysis where court mistakenly reasoned that there would not be favorable result, rather than focusing on whether holding that agencies and officials had obligation to consult as to their alleged failure to enforce endangered salmon import ban would have provided organizations' redress. Salmon Spawning & Recovery Alliance v United States Customs & Border Prot. (2008, CA FC) 550 F3d 1121, 68 Envt Rep Cas 1041, 30 BNA Intl Trade Rep 1865, 39 ELR 20304.

Nonprofit environmental organizations had U.S. Const. art. III standing to raise 16 USCS § 1536(a)(2) claim against several federal agencies and officials on their decision to allow importation of endangered salmon species where they alleged that their members' recreational and other interests were adversely affected by failure to prevent importation of endangered fish, thereby threatening continued existence of threatened and endangered native species. Salmon Spawning & Recovery Alliance v United States Customs & Border Prot. (2008, CA FC) 550 F3d 1121, 68 Envt Rep Cas 1041, 30 BNA Intl Trade Rep 1865, 39 ELR 20304.

In action by environmental organizations against Secretary of Interior, Bureau of Reclamation (BOR), Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS), alleging violation of consultation requirements of Endangered Species Act with regard to protected species in Colorado River Delta in Mexico, summary judgment was granted for Secretary of Interior, BOR, NWS, and NMFS under Fed. R. Civ. P. 56(c) where, although environmental organizations had standing to bring their action because they demonstrated that impacts on species in question had direct effect on their aesthetic, scientific, recreational, and economic interests, and their declarations were sufficiently detailed to show that their members suffered injury in fact to particularized interest, and that BOR's ongoing operations on lower Colorado River had and would continue to have significant impact on delta region and species in question, record contained no suggestion of way, with or without consultation, for BOR to ensure that more water reached listed species in Colorado River Delta, Law of River strictly limited BOR's authority to release additional waters to Mexico, 16 USCS § 1536(a)(2) did not loosen those limitations or expand BOR's authority, and BOR did not have discretion to manipulate water delivery in United States in order to create excess releases for Colorado River Delta. Defenders of Wildlife v Norton (2003, DC Dist Col) 257 F Supp 2d 53, 33 ELR 20162, app dismd (2003, App DC) 74 Fed Appx 63.

Conservation groups had U.S. Const. art. III standing to challenge decisions of U.S. Fish and Wildlife Service and National Marine Fisheries Service not to issue incidental take statements under 16 USCS § 1536(b)(4) with their biological opinions on U.S. Forest Service's revised forest plans for four southern California national forests; benefits of compliance with § 1536 accrued to all groups and individuals with interest in species preservation. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2009, ND Cal) 623 F Supp 2d 1044, 70 Envt Rep Cas 1279.

37.--Ripeness; mootness

Although, pursuant to 50 C.F.R. § 402.14(a) and 16 USCS § 1536(a)(2), part of Endangered Species Act (ESA), 16 USCS § 1536, federal agencies are required to consult with appropriate federal fish and wildlife agency when their actions may affect endangered or threatened species, prudential mootness view applies where agency takes action and thereafter conducts post-hoc "formal" consultation with appropriate federal fish and wildlife agency; procedural defect arising from agency's failure to comply with ESA is cured by post-hoc formal consultation and, therefore, any claim for relief seeking remedy of formal consultation is rendered moot. Voyageurs Nat'l Park Ass'n v Norton (2004, CA8 Minn) 381 F3d 759, 34 ELR 20082.

Appellants' claim for relief under Endangered Species Act, 16 USCS § 1536, was rendered moot after National Park Service held post-hoc consultation with Fish and Wildlife Service (FWS) regarding Park Service's decision to open certain portions of Voyageurs National Park to recreational snowmobile use; post-hoc consultation cured procedural defect arising from Park Service's failure to comply with mandates of 50 C.F.R. § 402.14(a) and 16 USCS § 1536(a)(2), which required it to consult with FWS prior to opening areas to recreational use, because use would potentially affect two endangered or threatened species in park--bald eagles and gray-wolf population. Voyageurs Nat'l Park Ass'n v Norton (2004, CA8 Minn) 381 F3d 759, 34 ELR 20082.

Environmental group's challenge to National Marine Fisheries Service's plan, on ground prior consultation had violated 16 USCS § 1536, was not rendered moot by Service's reinitiation of consultation, where government had not yet decided whether to conduct formal consultation being sought by group. Greenpeace Found. v Daley (2000, DC Hawaii) 122 F Supp 2d 1110, 51 Envt Rep Cas 1913, summary judgment gr, in part, summary judgment den, in part,, injunction gr, in part, reserved (2000, DC Hawaii) 122 F Supp 2d 1123, 51 Envt Rep Cas 1925.

38. Effect on particular activities

Navy must obtain biological opinion with respect to impact of training operations on certain endangered species located in area of such operation; biological opinion must address both possible violations of Endangered Species Act (16 USCS §§ 1531 et seq.) and must recommend conservation measures designed to mitigate or remove all adverse effects on endangered or threatened species; interested parties must have opportunity to challenge adequacy of biological opinion, both in terms of its factual basis and its recommendations. Romero-Barcelo v Brown (1981, CA1 Puerto Rico) 643 F2d 835, 16 Envt Rep Cas 1593, 11 ELR 20391, revd on other grounds, remanded (1982) 456 US 305, 72 L Ed 2d 91, 102 S Ct 1798, 17 Envt Rep Cas 1217, 12 ELR 20538.

In light of EPA's duty to insure that oil refinery construction project is unlikely to jeopardize endangered whales or eagles, ALJ's failure to require, at minimum, that "real time simulation" studies be done to assure low risk of oil spill prior to granting permit violated his duty under 16 USCS § 1536(a)(2) to use best scientific data available where EPA, State of Maine, and Coast Guard all viewed such studies as being necessary to final determination of safety. Roosevelt Campobello International Park Com. v United States EPA (1982, CA1) 684 F2d 1041, 17 Envt Rep Cas 2023, 12 ELR 20903.

In connection with proposed construction of deep draft harbor for commercial and industrial use, Fish and Wildlife Service and Corps of Engineers did not violate 16 USCS § 1536 relating to threatened species of plant in area of harbor, where, at request of Corps, Service conducted biological assessment, and where throughout Corps conferred, on informal basis, with Service regarding status of plant; fact that Corps assured in its environmental impact statement that it would treat plant as if it were listed as endangered species does not estop Corps from denying it owed plant protections under Act. Enos v Marsh (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep Cas 1124, 15 ELR 20853.

Where District Court found that Corp of Engineers had consulted with Fish and Wildlife Service and Service's biological opinion stated that project would not jeopardize any endangered species in area and Corps imposed eight additional conditions to dredge and fill permit to minimize any possible injury to manatee, conclusion by District Court that Corp did everything required by Fish and Wildlife Coordination Act (16 USCS §§ 661 et seq.) was substantiated. Environmental Coalition of Broward County, Inc. v Myers (1987, CA11 Fla) 831 F2d 984, 26 Envt Rep Cas 2043, 18 ELR 20273.

Summary judgment in favor of National Marine Fisheries Service (NMFS) on environmental group's Endangered Species Act (ESA) action was reversed and remanded; because plain language of High Seas Fishing Compliance Act provided NMFS with ample discretion to protect listed species, ESA required that NMFS conduct consultation to assess potential impact to protected species. Turtle Island Restoration Network v Nat'l Marine Fisheries Serv. (2003, CA9 Cal) 340 F3d 969, 56 Envt Rep Cas 2067, 33 ELR 20262.

U.S. Forest Service had authority to restrict use of rights-of-way to protect endangered fish, pursuant to 16 USCS § 1536, where permits themselves, from their inception, provided federal government with unqualified discretion to restrict or terminate rights-of-way; summary judgment in favor of federal defendant was proper. County of Okanogan v Nat'l Marine Fisheries Serv. (2003, CA9 Wash) 347 F3d 1081, 2003 CDOS 9398, cert den (2004) 541 US 1029, 158 L Ed 2d 710, 124 S Ct 2094, 58 Envt Rep Cas 2152.

Section 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), applied to Federal Emergency Management Agency's provision of flood insurance under National Flood Insurance Act of 1968, 42 USCS §§ 4001-4129, but did not require FEMA to independently analyze FWS's proposed reasonable and prudent conservation alternatives unless new information arose between alternatives' proposal and adoption. Fla. Key Deer v Paulison (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.

While appellee National Marine Fisheries Service's "reasonable and prudent alternative" on fishing and leatherback turtle takings under 16 USCS § 1536 was prediction, it rested on past performance and expert judgment on future operations, and since appellant environmental groups could not know it would fail, summary judgment to agency was affirmed. Oceana, Inc. v Gutierrez (2007, App DC) 376 US App DC 324, 488 F3d 1020, 64 Envt Rep Cas 1577, 37 ELR 20124.

Because it failed to consult with other agencies as required by § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), Coast Guard was deemed to have taken final, judicially-reviewable agency action by not fulfilling its duty under Ports and Waterways Safety Act, 33 USCS § 1224, to consider environmental factors, i.e., effect of shipping vessel speed limits in coastal waterways on habitat of endangered right whale, when promulgating traffic separation schemes. Defenders of Wildlife v Gutierrez (2008, App DC) 382 US App DC 312, 532 F3d 913, 67 Envt Rep Cas 1097, 38 ELR 20181.

Where banning hunting of all Mexican ducks would not increase or even tend to increase duck population, there is no rational basis for regulation prohibiting hunting. Connor v Andrus (1978, WD Tex) 453 F Supp 1037.

Injunction against beach restoration project is denied under 16 USCS § 1536(a)(2), where municipality undertaking project complied with modified requirements of Fish and Wildlife Service for protecting endangered species of sea turtle, because agency is entitled to modify its opinions. American Littoral Soc. v Herndon (1988, SD Fla) 720 F Supp 942, 20 ELR 20249.

Construction of municipal sewerage discharge tunnel is not enjoined, where (1) Environmental Protection Agency (EPA) determined that construction of tunnel would not violate Endangered Species Act (16 USCS §§ 1531 et seq.), (2) evidence did not show that construction or operation of tunnel would jeopardize continued existence of endangered species, (3) proper biological assessments were timely prepared, and (4) construction of tunnel would not preclude development of reasonable alternatives, because EPA's action was not arbitrary or capricious. Bays' Legal Fund v Browner (1993, DC Mass) 828 F Supp 102, 24 ELR 20081 (criticized in Greater Yellowstone Coalition v Flowers (2003, CA10 Wyo) 321 F3d 1250, 55 Envt Rep Cas 2097).

U.S. Forest Service must be enjoined from announcing, awarding, permitting, or conducting any new timber sales, range activities, mining activities, or road building projects until formal consultation on land resource management plans for certain national forests is completed, but may proceed with ongoing and announced activities identified satisfactorily as "not likely to adversely affect" endangered salmon, because Service was required to reinitiate consultation with National Marine Fisheries Service on effects of plans on salmon when several species were listed as threatened or endangered, under 16 USCS § 1536(a)(2). Pacific Rivers Council v Thomas (1995, DC Idaho) 873 F Supp 365, 40 Envt Rep Cas 1595, 25 ELR 20765 (criticized in Southwest Ctr. for Biological Diversity v United States Forest Serv. (2000, DC Ariz) 82 F Supp 2d 1070).

Forest Service cannot allow any livestock to be turned out on 48,000-acre tract of land until consultation with National Marine Fisheries Service (NMFS) is completed, where land is critical habitat for Snake River spring/summer Chinook salmon, because mere unilateral determination that grazing will have no adverse effect on salmon is insufficient, under 16 USCS §§ 1536(a)(2) and (d), absent biological opinion or concurrence by NMFS. Pacific Rivers Council v Thomas (1996, DC Idaho) 936 F Supp 738, 43 Envt Rep Cas 1460, 27 ELR 20163.

National Marine Fisheries Service was not required to balance benefit to endangered Steller sea lions against economic and technical burden on fishing industry before approving reasonable and prudent alternatives (RPA) in case under 16 USCS § 1536 involving interaction between pollock fisheries and sea lions, because guiding standard for determination of RPA was jeopardy to sea lions, not economic impact on third parties such as fishing industry. Greenpeace v National Marine Fisheries Serv. (1999, WD Wash) 55 F Supp 2d 1248, 48 Envt Rep Cas 2035.

Where final environmental impact statement (FEIS) revealed that endangered/threatened flora and fauna species lists were obtained from, inter alia, United States Fish and Wildlife Service (USFWS), New Mexico Department of Game and Fish, and Texas Parks and Wildlife Department, defendant United States Air Force consulted with USFWS on ongoing basis concerning actions which overlapped Air Force's bomber training area and various state agencies were consulted in connection with species of specific concern to each state, and FEIS set forth results of Air Force's analysis of impact of aircraft emissions on threatened wildlife for each alternative, plaintiffs' assertions that (1) Air Force failed to discuss effects of aircraft pollutants or (2) in any way indicated intention to not comply with legislation and/or regulations pertinent to endangered or threatened species were wholly without merit. Welch v United States Air Force (2003, ND Tex) 249 F Supp 2d 797, vacated, remanded (2004, CA5) 116 Fed Appx 3, 59 Envt Rep Cas 1193, reh gr, in part, reh den, in part (2005, CA5) 2005 US App LEXIS 1620.

There was substantial evidence in administrative record showing that Federal Emergency Management Agency's implementation of National Flood Insurance Program "may affect" Puget Sound Chinook salmon, thus triggering formal consultation requirement of § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.

16 USCS § 1536(b)(4) could permit incidental takings and defendant Fish & Wildlife Service's determination that restricting water flow, while negatively affecting endangered bird, was important in maintaining nesting grounds for another endangered bird was entitled to deference; thus, challenge by plaintiff Indian Tribe to agency's biological opinion, failed on summary judgment. Miccosukee Tribe of Indians of Fla. v United States (2007, SD Fla) 528 F Supp 2d 1317, affd in part and revd in part on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.

Environmental groups were entitled to preliminary injunction prohibiting livestock grazing on allotments in Malheur National Forest (MNF) because they demonstrated likelihood of success on their claim that United States Forest Service and National Marine Fisheries Service acted arbitrarily under 5 USCS § 706 and violated 16 USCS §§ 1536(a)(2) and 1538(a)(1) in managing public lands supporting threatened steelhead trout in in MNF; groups also made sufficient showing that irreparable injury would occur to threatened steelhead trout due to grazing on allotments during 2008 grazing season. Or. Natural Desert Ass'n v Kimbell (2008, DC Or) 68 Envt Rep Cas 1632.