1 of 15 documents united states code service

8.--Particular conduct

State is prohibited from enclosing animals in habitat of endangered species where those animals have tendency to destroy natural habitat of endangered species; such enclosure constitutes taking within meaning of 16 USCS § 1538(a)(1)(B). Palila v Hawaii Dep't of Land & Natural Resources (1981, CA9 Hawaii) 639 F2d 495, 15 Envt Rep Cas 1741, 11 ELR 20446.

Eliminating habitat of species can constitute "taking" that species for purposes of 16 USCS § 1538. 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.

"Taking" requires showing that harm, attempted harm, or harassment is of immediate nature and therefore leasing of continental shelf to oil companies which poses potential harm does not amount to taking. California by Brown v Watt (1981, CD Cal) 520 F Supp 1359, 16 Envt Rep Cas 1729, 11 ELR 20870, 70 OGR 455, affd in part and revd in part on other grounds, vacated, in part on other grounds (1982, CA9 Cal) 683 F2d 1253, 17 Envt Rep Cas 1857, 12 ELR 21084, 73 OGR 447, revd, in part on other grounds (1984) 464 US 312, 104 S Ct 656, 78 L Ed 2d 496, 20 Envt Rep Cas 1201, 14 ELR 20129, 79 OGR 448 (superseded by statute on other grounds as stated in California v Norton (2002, CA9 Cal) 311 F3d 1162, 2002 Daily Journal DAR 13543, 55 Envt Rep Cas 1449, 33 ELR 20119, 157 OGR 181) and (superseded by statute on other grounds as stated in Amber Res. Co. v United States (2005) 68 Fed Cl 535, 61 Envt Rep Cas 1887, 166 OGR 435).

Hawaii is required, under 16 USCS § 1538, to remove mouflon sheep from critical habitat on slopes of Mauna Kea of endangered bird species, Palila, because Palila are being "harmed" within meaning of Endangered Species Act (§ 1532(a)(1)) where mouflon sheep are destroying their habitat by decreasing food and nesting sites; Congress intended to prohibit habitat destruction that harms endangered species, Secretary of Interior has defined "harm" to include habitat modification or degradation without need for decline in population numbers and Endangered Species Act does not allow balancing approach for multiple use considerations. Palila v Hawaii Dep't of Land & Natural Resources (1986, DC Hawaii) 649 F Supp 1070, 17 ELR 20514, affd (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.

County's adoption of allegedly ineffective beachfront lighting ordinance was not cause of harm to endangered sea turtle hatchlings, and, thus, did not violate 16 USCS § 1538(a)(1)(B), since county could not be held liable for beach residents' failure to comply with its voluntarily adopted ordinance. Loggerhead Turtle v County Council (2000, MD Fla) 92 F Supp 2d 1296, summary judgment gr, partial summary judgment gr, in part, partial summary judgment den, motion to strike den, motion gr, reconsideration den, judgment entered (2000, MD Fla) 120 F Supp 2d 1005, magistrate's recommendation, costs/fees proceeding (2001, MD Fla) 2001 US Dist LEXIS 2611, subsequent app on other grounds (2002, CA11 Fla) 307 F3d 1318, 55 Envt Rep Cas 1161, 33 ELR 20057, 15 FLW Fed C 1104, related proceeding, dismd on other grounds, dismd without prejudice, in part (2005, MD Fla) 2005 US Dist LEXIS 38841, vacated on other grounds, remanded (Jan 18, 2006) and (overruled as stated in Dillard v Colbert County Comm'n (2007, MD Ala) 494 F Supp 2d 1297).

Claimants failed to meet their burden for preliminary injunction in citizen suit under Endangered Species Act, 16 USCS §§ 1531 et seq., specifically 16 USCS § 1540(g), to prevent county from authorizing public motor vehicle traffic on county beaches because they did not show that daytime vehicle traffic was reasonably likely to result in taking of endangered sea turtles in violation of 16 USCS § 1538(a)(1)(B); there was no evidence that hatchlings perished after being stuck in tire ruts or that false crawls occurred because of tire ruts; further, effects of recent hurricanes had more of effect on turtle nesting because of storm surges and excess sand deposits burying nests. Leatherback Sea Turtle v Flagler County Bd. of County Comm'rs (2004, MD Fla) 359 F Supp 2d 1209.

Plaintiff conservationist's motion for judgment on pleadings on his Endangered Species Act (ESA), 16 USCS §§ 1538 et seq., claim was denied because, although fisherman admitted that lobster traps that entangled endangered humpback whale belonged to him, fisherman denied that there was any actual harm to whale that would have constituted "taking" within meaning of ESA, and denied that his continued fishing posed any ongoing, imminent threat to whales. Strahan v Holmes (2007, DC Mass) 510 F Supp 2d 161, findings of fact/conclusions of law (2009, DC Mass) 595 F Supp 2d 161.

Fisherman "captured" humpback whale when it became entangled in his lobster gear, and although whale eventually broke free of fisherman's trawl and was later disentangled from gear stuck in its baleen, it was "taken captive" by fisherman's gear for at least some period of time; therefore, fisherman violated 16 USCS § 1538 when humpback whale became entangled, and hence "taken", in his lobster gear, and fact that taking was accidental was irrelevant; however, because there was no risk of irreparable harm to humpback whale in absence of injunction and burden of injunction upon fisherman, being prevented from pursuing his livelihood, outweighed its benefits, court refused to enter injunction under 16 USCS § 1540(g)(1)(A). Strahan v Holmes (2009, DC Mass) 595 F Supp 2d 161.

9.----Hunting

In order to convict defendant for illegally taking grizzly bear under Endangered Species Act of 1973 (16 USCS §§ 1538(a)(1)(6) and 1540(b)(1)), government must prove (1) that defendant knowingly took animal within United States, (2) that animal was grizzly bear, and (3) that defendant did not have permission to take bear; government need not prove that defendant knew he was shooting grizzly bear at time he pulled trigger. United States v St. Onge (1988, DC Mont) 676 F Supp 1044, 18 ELR 20733.

10.----Land development

Landowner may proceed with his plans to develop land into lounge/restaurant/hotel, despite complaint that project will constitute "taking" of Perdido Key beach mouse in violation of 16 USCS § 1538(a)(1)(B), because lack of certainty of proof that beach mice currently live on property being developed undercuts argument that project will threaten "taking" by (1) construction actually killing or injuring mice, (2) development degrading mouse habitat, or (3) influx of house mice, feral and house cats, and human foot traffic destroying mice and habitat. Morrill v Lujan (1992, SD Ala) 802 F Supp 424, 23 ELR 20379.

Federal government's application of 16 USCS § 1538(a)(1)(B) to preclude proposed development of shopping center, residential subdivision, and office buildings on property containing 6 regulated species did not exceed Congress's authority under Commerce Clause, even if regulated species had no effect on interstate commerce, where effect of commercial/residential development in aggregate substantially affected interstate commerce. GDF Realty Invs., Ltd. v Norton (2001, WD Tex) 169 F Supp 2d 648, 32 ELR 20103, affd (2003, CA5 Tex) 326 F3d 622, 56 Envt Rep Cas 1033, reh den, reh, en banc, den (2004, CA5 Tex) 362 F3d 286, 58 Envt Rep Cas 1187 and cert den (2005) 545 US 1114, 125 S Ct 2898, 162 L Ed 2d 294, 60 Envt Rep Cas 1512.

11.----Logging

United States Forest Service is permanently enjoined from failing to implement remedial practices within 1200 meters of active and inactive red-cockaded woodpecker colony sites in national forests of Texas where Forest Service's practice of "even-aged" timber management has resulted in significant habitat modification constituting a "taking" of red-cockaded woodpecker within meaning of 16 USCS § 1538(a)(1)(B) of Endangered Species Act. Sierra Club v Lyng (1988, ED Tex) 694 F Supp 1260, 19 ELR 20450, affd in part and revd in part on other grounds, remanded sub nom Sierra Club v Yeutter (1991, CA5 Tex) 926 F2d 429, 21 ELR 20755, summary judgment gr sub nom Sierra Club v Madigan (1992, ED Tex) 1992 US Dist LEXIS 21494, judgment entered (1993, WD Tex) 36 Envt Rep Cas 1533 and adopted, in part, motion gr, summary judgment den sub nom Sierra Club v Espy (1993, ED Tex) 822 F Supp 356, 24 ELR 20051, revd (1994, CA5 Tex) 18 F3d 1202, 38 Envt Rep Cas 1421, 28 FR Serv 3d 1293, 24 ELR 20888 and vacated, remanded (1994, CA5 Tex) 38 F3d 792, 25 ELR 20426, reh den (1994, CA5 Tex) 1994 US App LEXIS 37197, subsequent app (1995, CA5 Tex) 67 F3d 90, 41 Envt Rep Cas 2048, 26 ELR 20160, judgment entered (1997, ED Tex) 974 F Supp 905, 28 ELR 20344, affd (1999, CA5 Tex) 185 F3d 349, 49 Envt Rep Cas 1204, 29 ELR 21432, motion den, motion gr, motion to strike gr, in part (1999, ED Tex) 1999 US Dist LEXIS 17306 and reh, en banc, gr, vacated (2000, CA5 Tex) 204 F3d 580 and vacated, remanded (2000, CA5 Tex) 228 F3d 559, 51 Envt Rep Cas 1385, 31 ELR 20135, reh den (2000, CA5 Tex) 2000 US App LEXIS 31850 and cert den (2001, App DC) 2001 US App LEXIS 4010.

Landowners who were temporarily denied permit to conduct logging operation and engage in taking of spotted owl from their habitat had not themselves suffered compensable taking of their property without due process. Seiber v United States (2002) 53 Fed Cl 570, 55 Envt Rep Cas 1390, affd (2004, CA FC) 364 F3d 1356, 58 Envt Rep Cas 1246, 34 ELR 20026, cert den (2004) 543 US 873, 125 S Ct 113, 160 L Ed 2d 122.

12.----Pesticide or rodenticide use

District Court properly enjoined EPA from continuing strychnine registrations, since registrations constituted takings of endangered species in violation of 16 USCS § 1538, and EPA did not obtain incidental takings statement pursuant to § 1536 until after court's decision; however, if EPA can now show it has obtained such authorization, District Court should lift injunction. Defenders of Wildlife v Administrator, EPA (1989, CA8 Minn) 882 F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440.

13.----Water diversion

No "taking" has occurred within meaning of 16 USCS § 1538 where, in Navy program to lease rights to divert water onto leased lands, objecting Indian tribe fails to demonstrate that leased program has harmed endangered species of fish and fails to distinguish between Navy and other uses of river water, including tribal use. Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572.

Where Army Corps of Engineers (Corps) plan did not implement required water flow regimes on river basin, court enjoined Corps because environmental organizations were likely to succeed in establishing that Corps' plan resulted in taking of both endangered and threatened species. Am. Rivers v United States Army Corps of Eng'rs (2003, DC Dist Col) 271 F Supp 2d 230, 57 Envt Rep Cas 1106, 33 ELR 20239.

Federal agencies were entitled to summary judgment in dispute involving use of water in reservoir because no endangered or threatened species were harmed in "taking" as contemplated in 16 USCS § 1538(a)(1) and defined in 16 USCS § 1532(19); habitat modification does not constitute harm unless it actually kills or injures wildlife. San Carlos Apache Tribe v United States (2003, DC Ariz) 272 F Supp 2d 860, affd (2005, CA9 Ariz) 417 F3d 1091, subsequent app (2005, CA9 Ariz) 144 Fed Appx 635, 35 ELR 20163.

Where, without providing any evidence to meet difficult burden before it, plaintiff Indian tribe stated that defendant U.S. Army Corps of Engineers "may" not be fulfilling requirement of Incidental Take Statement as to certain water levels, tribe failed to meet its burden of showing that Corps had acted arbitrarily and capriciously in that regard, and thus Corps' motion for summary judgment on claim under 16 USCS § 1538(a)(1)(B) was granted. 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.

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 under 16 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.

County dike district violated Endangered Species Act because reconstructing tidegates resulted in harm to threatened Chinook salmon, which constituted taking under 16 USCS §§ 1532(19) and 1538(a)(1)(B) in that taking prohibition was extended to salmon under 16 USCS § 1533(d). Swinomish Indian Tribal Cmty. v Skagit County Dike Dist. No. 22 (2008, WD Wash) 618 F Supp 2d 1262.

Water users lacked standing to bring Commerce Clause challenge to application of only § 9, 16 USCS § 1538, where although their water deliveries had been reduced by United States Fish and Wildlife Service's biological opinion, there was no threat of imminent § 9 enforcement, and thus, there was no causal connection between water users' injury and § 9's application to coordinated operation of water project. Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 663 F Supp 2d 922.

14. Exception for species held in captivity

Exception under 16 USCS § 1538(b) is not available to persons who hold animals protected under Act in course of commercial activity. United States v Kepler (1976, CA6 Ky) 531 F2d 796, 6 ELR 20340.

16 USCS § 1538(b) exception is restricted to animals or parts thereof held for noncommercial activities prior to effective date of Act and does not apply to spermaceti imported by company's predecessor in interest prior to effective date of Act pursuant to hardship permit granted under predecessor act. Delbay Pharmaceuticals, Inc. v Department of Commerce (1976, DC Dist Col) 409 F Supp 637, 6 ELR 20211.

15. Practice and procedure

Defendant was violating Endangered Species Act, 16 USCS §§ 1538, on day cheetah skin was seized by government; statute of limitations did not begin to run until defendant ceased possessing skin, rather than on day he first took possession of it. United States v Winnie (1996, CA7 Wis) 97 F3d 975, 43 Envt Rep Cas 1575.

Where interest groups challenged United States Forest Service's (Service) cattle grazing reduction scheme for Apache-Sitgreaves National Forest, groups' claim that 16 USCS § 1538 was violated was moot because it was based on incidental take statements, regarding loach minnow and Mexican Spotted Owl, that accompanied Biological Opinion which was superseded by Biological Assessment and Evaluation that was not accompanied by incidental take statements. Forest Guardians v United States Forest Serv. (2003, CA9 Ariz) 329 F3d 1089, 2003 CDOS 4398, 2003 Daily Journal DAR 5658, 33 ELR 20205.

Environmental groups' claim against developer under 16 USCS § 1538, which was that developer's activities and planned project would harass bald eagles by disrupting their normal behavioral patterns, became moot after district court's judgment was issued in favor of groups and while case was on appeal because Fish and Wildlife Service delisted bald eagle; however, mootness of claim did not affect district court's award of attorney fees to groups under 16 USCS § 1540(g)(4). Ctr. for Biological Diversity v Marina Point Dev. Co. (2009, CA9 Cal) 566 F3d 794.

Because only 2001 biological opinion (B.O.) and 2002 B.O. had been issued when environmental groups filed their third amended complaint, their pleadings were interpreted as directed at 2001 B.O. and 2002 B.O, but after third amended complaint, U.S. Fish and Wildlife Service (FWS) issued 2003 B.O., which superseded both of them; FWS's issuance of 2003 B.O. mooted prayer for both injunctive and declaratory relief. Rio Grande Silvery Minnow v Bureau of Reclamation (2010, CA10 NM) 601 F3d 1096, 70 Envt Rep Cas 1577, 40 ELR 20128.

Claim brought by non-profit organizations dedicated to protection of wild fishes under § 9 of Endangered Species Act of 1973 (ESA), 16 USCS § 1538, was properly dismissed for lack of subject matter jurisdiction because statute made clear discretionary nature of defendants' enforcement powers; citizen suit provisions under § 11(g)(1)(A) of ESA, 16 USCS § 1540(g)(1)(A), also did not provide independent jurisdiction to challenge federal agency's implementation of ESA. Salmon Spawning & Recovery Alliance v United States Customs & Border Prot. (2008, CA FC) 532 F3d 1338, 30 BNA Intl Trade Rep 1257, 38 ELR 20175, reh gr, op withdrawn on other grounds(2008, CA FC) 30 BNA Intl Trade Rep 1873, 39 ELR 20304.

Nonprofit environmental organizations' argument that they had not raised 16 USCS § 1538 claim in their complaint against several federal agencies and officials was rejected where they plainly argued in their opposition to agencies' and officials' motion to dismiss that their allegations were sufficient to raise claim under that section. 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.

Defendant charged with misdemeanor of knowingly taking grizzly bear under 16 USCS §§ 1538(a)(1) and 1540(b)(1) is not entitled to bill of particulars nor protective order against U.S. States Marshal Service, because (1) language of existing information adequately apprises defendant of offense with which he is charged, making amendment to allege separate crimes for wounding and killing of bear unnecessary, and (2) marshals' administrative function of obtaining information from defendant during or following arraignment is proper, but no fingerprints or photographs shall be taken except by further court order. United States v St. Onge (1987, DC Mont) 676 F Supp 1041.

Lumber company is denied summary dismissal of environmental groups' 16 USCS § 1538 claim, where it is undisputed that company is conducting timber operations and that sedimentation from these operations results in degradation of coho salmon habitat and concomitant harm to coho salmon, because groups have satisfied elements required for associational standing. Coho Salmon v Pacific Lumber Co. (1999, ND Cal) 61 F Supp 2d 1001.

Applicant intervenors, associations and individuals with economic and recreational interests in trapping and snaring wildlife, were entitled to intervene as of right under Fed. R. Civ. P. 24(a)(2) in suit alleging that state authorization of trapping and snaring activities violated 16 USCS § 1538; applicant intervenors had established and substantial interests that could have been impaired if suit were successful, and those interests would not have been adequately protected in applicant intervenors' absence because State had no particular interest in preserving existing trapping and snaring practices. Animal Prot. Inst. v Merriam (2006, DC Minn) 242 FRD 524, summary judgment gr, summary judgment den, injunction gr (2008, DC Minn) 541 F Supp 2d 1073, 67 Envt Rep Cas 1492, findings of fact/conclusions of law, injunction gr (2008, DC Minn) 2008 US Dist LEXIS 53396 (criticized in Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067).

Organizations and individuals' motion to intervene of right under Fed. R. Civ. P. 24(a) where: (1) motion to intervene was timely filed; (2) relationship between organizations and individuals' claims and dispute between Animal Protection Institute (API) and Maine Department of Inland Fisheries and Wildlife (DIFW) was sufficiently close to conclude that they had interest related to property or transaction that formed basis of ongoing suit and disposition of action threatened to create practical impediment to their ability to protect their interest; (3) there were private interests at stake, which organizations and individuals stood to lose if API prevailed in its action and DIFW may not have been able to adequately represent organizations and individuals' interests in litigation, interests related to property or transaction that formed basis of ongoing suit; and (4) although impact on API was that it would have to contend with parties who were likely to be more adversarial than DIFW, intervention of adversarial public interest groups in such law suit was predictable and inevitable part of process. Animal Prot. Inst. v Martin (2007, DC Me) 241 FRD 66.

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 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.

Two animal protection organizations were entitled to injunctive relief in their civil suit against Minnesota Department of Natural Resources (DNR) because they sufficiently showed that DNR violated § 9 of Endangered Species Act, 16 USCS § 1538(a)(1)(B), by failing to promulgate and enforce trapping regulations that would restrict, modify or eliminate incidental taking of Canada Lynx through trapping activities in core Canada Lynx habitat and ranges in Minnesota. U.S. Const. amend. X would not be violated by issuance of injunction against DNR because DNR was not being ordered to take positive steps to advance goals of federal regulatory scheme, but was merely being directed to find means of bringing its regulatory and licensing scheme for trapping in state into compliance with federal law. Animal Prot. Inst. v Holsten (2008, DC Minn) 541 F Supp 2d 1073, 67 Envt Rep Cas 1492, findings of fact/conclusions of law, injunction gr (2008, DC Minn) 2008 US Dist LEXIS 53396 (criticized in Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067).

Although leghold traps set in compliance with Maine's trapping regulations were likely to subject Canada lynx to incidental takes that violated Endangered Species Act, 16 USCS § 1538(a)(1)(B), animal rights groups were not granted permanent injunction prohibiting use of leghold traps because animal rights groups failed to prove that Canada lynx as species would suffer irreparable harm from injuries caused by leghold traps. Animal Welfare Inst. v Martin (2009, DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.

Even if plaintiffs were to renew their request for injunction, and even if court were to entertain it, there was no evidence from which court could conclude that injunction would redress employee's alleged aesthetic injury; it had been alleged that employee could tell from their behavior whether elephants were being mistreated even if he was not witness to actual alleged mistreatment and therefore, if complained-of practices were enjoined, employee then would be able to attend circus without aesthetic injury because employee would be able to detect effects of injunction on animals' behavior; however, injunction against chaining would not necessarily cause elephants to stop swaying and evidence showed that even if injunction against bullhook and chains were issued and even if that injunction brought about some kind of change in elephants' behavior that employee actually had power to discern, employee would not be able to detect effects of this relief because he was unlikely to ever see these elephants again as there was no basis in Endangered Species Act, 16 USCS §§ 1531 et seq., upon which court could compel corporation to grant employee access to corporation's facility; thus, employee's alleged injury was not redressable. ASPCA v Feld Entm't, Inc. (2009, DC Dist Col) 677 F Supp 2d 55, 71 Envt Rep Cas 1651.

There was no injury in fact that nonprofit organization suffered as result of anything that corporation did or failed to do; informational standing arises only in very specific statutory contexts where statutory provision has explicitly created right to information and nothing in Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., obligated corporation to give organization any information; organization's claims against corporation were pursuant to § 9 of ESA for alleged taking of corporation's elephants under 16 USCS § 1538, and there was nothing in § 9 that imposed duty on corporation to provide any kind of information to organization; even if organization were to succeed in demonstrating that corporation's use of bullhook and chains was taking, ruling by court to that effect would not generate any information for organization. ASPCA v Feld Entm't, Inc. (2009, DC Dist Col) 677 F Supp 2d 55, 71 Envt Rep Cas 1651.

Nonprofit organization was attempting to use § 9 (16 USCS § 1538) of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., to force corporation to apply for permit under § 10 (16 USCS § 1539) of ESA, which United States Fish and Wildlife Service has never required from corporation; organization's objective was that such permit application might trigger notice-and-comment proceeding in which organization might participate and obtain more information about corporation's elephants and there was no legal basis to sustain such approach; organization sued private party under citizen suit provision in § 9 seeking information from that private party pursuant to § 10 notice and comment process that would be promulgated by FWS; however, FWS has neither promulgated such process nor was it party to suit and to grant organization relief under these circumstances would be to profoundly alter and expand law on U.S. Const. art. III standing based on informational injury. ASPCA v Feld Entm't, Inc. (2009, DC Dist Col) 677 F Supp 2d 55, 71 Envt Rep Cas 1651.

Court's inability to review Bureau of Customs and Border Protection's failure to enforce 16 USCS § 1538 prevented plaintiffs from finding redress for their grievances in court, and it therefore dismiss their § 1538 claim for lack of subject matter jurisdiction. Salmon Spawning & Recovery Alliance v Basham (2007) 31 CIT 267, 477 F Supp 2d 1301, 64 Envt Rep Cas 2105, 29 BNA Intl Trade Rep 1465, 37 ELR 20059, affd in part and revd in part on other grounds, remanded (2008, CA FC) 532 F3d 1338, 30 BNA Intl Trade Rep 1257, 38 ELR 20175, reh gr, op withdrawn on other grounds (2008, CA FC) 30 BNA Intl Trade Rep 1873, 39 ELR 20304.