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Effective date and application of amendment to subsec. (d) by Act Nov. 16, 1981
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- I.IN GENERAL 1. Civil penalties
- 2.--Particular circumstances
- 10. Promulgation of regulations
Effective date and application of amendment to subsec. (d) by Act Nov. 16, 1981. Act Nov. 16, 1981, P.L. 97-79, § 9(f), 95 Stat. 1080, provided: "The amendment specified in subsection 9(e) of this Act [amending subsec. (d) of this section] shall take effect beginning in fiscal year 1983.". NOTES: Code of Federal Regulations: Office of the Secretary of Agriculture--Administrative regulations, 7 CFR 1.1 et seq. Animal and Plant Health Inspection Service, Department of Agriculture--Endangered species regulations concerning terrestrial plants, 7 CFR 355.1 et seq. Animal and Plant Health Inspection Service, Department of Agriculture--Forfeiture procedures, 7 CFR 356.1 et seq. Animal and Plant Health Inspection Service, Department of Agriculture--Rules of practice governing proceedings under certain acts, 7 CFR 380.1 et seq. United States Fish and Wildlife Service, Department of the Interior--Civil procedures, 50 CFR 11.1 et seq. United States Fish and Wildlife Service, Department of the Interior--Seizure and forfeiture procedures, 50 CFR 12.1 et seq. United States Fish and Wildlife Service, Department of the Interior--General permit procedures, 50 CFR 13.1 et seq. United States Fish and Wildlife Service, Department of the Interior--Importation, exportation, and transportation of wildlife, 50 CFR 14.1 et seq. United States Fish and Wildlife Service, Department of the Interior--Endangered and threatened wildlife and plants, 50 CFR 17.1 et seq. United States Fish and Wildlife Service, Department of the Interior--Importation and exportation of plants, 50 CFR 24.1 et seq. Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce--Fisheries of the Exclusive Economic Zone off Alaska, 50 CFR 679.1 et seq. Related Statutes & Rules: Sentencing Guidelines for the United States Courts, 18 USCS Appx § 2Q2.1. This section is referred to in 6 USCS § 231; 16 USCS §§ 742l, 1536, 1539, 4224, 5305a; 28 USCS § 524; 42 USCS § 10601. Research Guide: Federal Procedure: 10 Moore's Federal Practice (Matthew Bender 3d ed.), ch 54, Judgment; Costs § 54.171. 6 Administrative Law (Matthew Bender), ch 50, Standing § 50.04. 4 Fed Proc L Ed, Aviation and Space § 7:921. 8 Fed Proc L Ed, Courts and Judicial System § 20:444. 11 Fed Proc L Ed, Environmental Protection §§ 32:117, 119, 125. 12B Fed Proc L Ed, Farms, Ranches, and Agricultural Products §§ 34:1, 126. 24A Fed Proc L Ed, Natural and Marine Resources §§ 56:2074, 2105, 2132, 2153-2159, 2164, 2165, 2176, 2200, 2215, 2336. 25 Fed Proc L Ed, Parties § 59:3. Am Jur: 35A Am Jur 2d, Fish, Game, and Wildlife Conservation §§ 69-71. 67 Am Jur 2d, Rewards § 7. Am Jur Proof of Facts: 35 Am Jur Proof of Facts 3d, Proof of Standing in Environmental Citizen Suits, p. 493. 86 Am Jur Proof of Facts 3d, Citizen Suit for Injunctive Relief Pending Federal Agency's Compliance with National Environmental Policy Act, p. 99. 89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125. Forms:
10B Fed Procedural Forms L Ed, Highways and Bridges (2006) § 38:17. 13 Fed Procedural Forms L Ed, Natural and Mineral Resources (2005) §§ 50:209, 211, 212, 214. 12 Am Jur Pl & Pr Forms (2008), Fish and Game, § 30. 13A Am Jur Pl & Pr Forms (2009), Highways, Streets, and Bridges, § 219. 19C Am Jur Pl & Pr Forms (2007), Pollution Control, § 157. Annotations: Criminal prosecution under Endangered Species Act of 1973 (16 USCS §§ 1531-1543). 128 ALR Fed 271. Attorney's Fees Under § 11(g)(4) of Endangered Species Act (16 U.S.C.A. § 1540(g)(4) [16 USCS 1540(g)(4)]). 171 ALR Fed 419. Texts: 1 Environmental Law Practice Guide (Matthew Bender), ch 4, Information Disclosure and Access § 4.02. 2A Environmental Law Practice Guide (Matthew Bender), ch 12A, Citizen Suits §§ 12A.04, 12A.05, 12A.09. 2A Environmental Law Practice Guide (Matthew Bender), ch 12C, Criminal Enforcement §§ 12C.02, 12C.03, 12C.05, 12C.08. 2A Environmental Law Practice Guide (Matthew Bender), ch 13, Attorneys' Fees and Conflicts of Interest § 13.01. 4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03. 5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04. Law Review Articles: The Extraterritorial Application of Section 7 of the Endangered Species Act. 13 Colum J Envt'l L 129, 1987. Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species Act. 30 Envtl L 769, Fall 2000. Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January 1982. Johnson. Private Plaintiffs, Public Rights: Article II and Environmental Citizen Suits. 49 Kan L Rev 383, January 2001. Arnold. Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use development. 10 Stan Envtl L J 1, 1991. Craig. Will Separation of Powers Challenges "Take Care" of Environmental Citizen Suits? Article II, Injury-in-Fact, Private "Enforcers," and Lessons From Qui Tam Litigation. 72 U Colo L Rev 93, Winter 2001. May. Now More Than Ever: Trends in Environmental Citizen Suits at 30. 10 Wid L Symp J 1, 2003. Parenteau. Citizen Suits under the Endangered Species Act: Survival of the Fittest. 10 Widener L Rev 321, 2004. Interpretive Notes and Decisions:
Penalty assessed in notice of violation and assessment is presumed appropriate and ALJ must show good reason for adjustment. Paul J. von Hartmann (1991, NOAA App) 6 ORW 576. When alleged violator asserts that recommended penalty should be reduced or rescinded because of inability to pay, he bears burden of proving such inability by providing verifiable, complete and accurate financial information to NOAA. Darren J. Plaisance (1992, NOAA App) 6 ORW 654.
Appeals board did not err in assessing $ 12,000 penalty against commercial operator who shipped 3 endangered turtles in violation of § 1540(a)(1). Newell v Baldridge (1982, WD Wash) 548 F Supp 39, 13 ELR 20476. ALJ abused his discretion by assessing penalty of $ 6,000 in proceeding involving violation of 50 CFR § 222.31, which prohibits boats from approaching humpback whales in waters designated as cow/calf waters, where penalty assessed in notice of violation and assessment (NOVA) was only $ 400.00, and ALJ did not provide in his initial decision adequate justification for such profound increase. Paul J. von Hartmann (1991, NOAA App) 6 ORW 576. In civil penalty proceeding involving individual who violated 16 USCS § 1538(a)(1)(F) by selling in interstate commerce, for commercial purpose, live captive-bred snow leopard, ALJ improperly increased penalty assessed by FWS from $ 7,000 to $ 15,000, based on aggravating circumstances (individual's experience in field, his attempt to circumvent law by creating false documents, and his lack of remorse), because penalty assessed by agency is presumed appropriate and ALJ did not show good cause for adjustment; aggravating circumstances cited by ALJ were all apparent to FWS when it assessed penalty, so that they could not constitute good cause for adjustment. Fish and Wildlife Service v Tatum (1993, FWS App) 7 ORW 220. Given circumstances of case, civil penalty of $ 700 was appropriate with respect to kayaker who violated Federal regulations by approaching within 100 yards of humpback whale. In the Matter of: Jorge Rundle, Respondent (NOAA, June 9, 2009) 2009 NOAA LEXIS 13. Individual who unlawfully approached humpback whale within 100 yards in water for purpose of taking video that he intended to sell was subject to $ 1000 penalty as first time offender, where he was more hobbyist than commercial operator, and evidence did not establish that he willfully ignored instructions to get out of water or that he was responsible for second individual's boat approaching within 100 yards. In the Matter of: Porter Watson, Respondent (NOAA, July 21, 2010) 2010 NOAA LEXIS 8. 3. Criminal violations Hawaiian native cannot plead abrogation of treaty in defense of prosecution under 16 USCS § 1538 where no evidence shows treaty giving Hawaiians right to hunt green sea turtles or monk seals, nor that they are traditional aspect of native Hawaiian life. United States v Nuesca (1991, CA9 Hawaii) 945 F2d 254, 91 CDOS 7480, 91 Daily Journal DAR 11459, 34 Envt Rep Cas 1394. Regulations regarding importation of banned goods, pursuant to which defendant was convicted of violating "contrary to law" provision of 18 USCS § 545, were promulgated pursuant to statutes, including 16 USCS § 1540, that contain express grant of authority to Secretary of Interior to promulgate such regulations as may be appropriate; regulations affect individual rights and obligations and are promulgated pursuant to congressional grant of authority and are therefore substantive rules having force and effect of law. United States v Mitchell (1994, CA4 Va) 39 F3d 465, cert den (1995) 515 US 1142, 132 L Ed 2d 828, 115 S Ct 2578. 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 particular 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. Rancher, who was searching for grizzly bear he may have wounded previous night, was not aggressor in confrontation with bear who charged at him and so was not precluded from asserting self-defense exception, under 16 USCS § 1540(a)(3), to liability for killing bear, where rancher did not provoke bear and was in imminent danger when he shot bear. Shuler v Babbitt (1998, DC Mont) 49 F Supp 2d 1165.
To sustain conviction under 16 USCS § 1540, it is sufficient that defendant knew he was in possession of turtle; government is not required to prove that defendant knew turtle to be threatened species or that it is illegal to transport or import it. United States v Oanh Vu Nguyen (1990, CA5 Tex) 916 F2d 1016, 21 ELR 20486. Indian tribe member committed "knowing" violation of Endangered Species Act (16 USCS §§ 1531 et seq.) by taking and possessing Florida panther on reservation, because knowing violation only requires proof of general intent and member need not have known Act applied to hunting endangered species on reservation. United States v Billie (1987, SD Fla) 667 F Supp 1485, 18 ELR 20209. In order to convict defendant for illegally taking grizzly bear under Endangered Species Act of 1973 (16 USCS §§ 1538(a)(1) 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 when he pulled trigger. United States v St. Onge (1988, DC Mont) 676 F Supp 1044, 18 ELR 20733. 5.--Sentence 4-level upward adjustment under sentencing guidelines for offense of capturing endangered species, is proper in view of court's finding that one Kemp's Ridley female sea turtle is "substantial" in relation to total population of sea turtles. United States v Tran (1992, CA5 Tex) 955 F2d 288, cert den (1992) 506 US 842, 121 L Ed 2d 82, 113 S Ct 127. District Court improperly applied 4-level enhancement of Sentencing Guidelines to defendants convicted of importing baby crocodiles where no evidence was presented showing that 39 African Dwarf crocodiles or 8 Nile crocodiles were substantial in relation to overall populations of species or to discrete subpopulations of species. United States v Stubbs (1993, CA6 Ohio) 11 F3d 632, 37 Envt Rep Cas 2096, 24 ELR 20245 (criticized in United States v Mansoori (2002, CA7 Ill) 304 F3d 635, 59 Fed Rules Evid Serv 1109). Defendant's agreed fine of $ 150,000 under plea agreement for violations of Lacey Act, Marine Mammal Protection Act, and Endangered Species Act did not exceed statutory maximum, as total maximum fine was $ 400,000; 18 USCS § 3571 implicitly repealed maximum fines under Lacey Act and Marine Mammal Protection Act, 16 USCS §§ 3373(d)(1)(B) and 1375(b), and replaced them with maximum fines of $ 250,000 and $ 100,000 respectively; however, amendment to 16 USCS § 1540(b)(1) increasing maximum fine to $ 50,000 controlled over requirement under 18 USCS § 3571(e) that lower fines be specifically exempted from § 3571. United States v Eisenberg (2007, ED Pa) 496 F Supp 2d 578. 6. Enforcement District court properly dismissed action filed under 16 USCS § 1540(g)(1)(C), part of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., which was filed by environmental groups alleging that Secretary of Interior violated nondiscretionary duty under 16 USCS § 1533(b)(6)(A), (C)(ii) to designate critical habitat for two threatened species of minnows--Blue Shiner and Goldline Darter; suit was untimely under 28 USCS § 2401(a)'s six-year statute of limitations, and Secretary's failure to designate critical habitat did not constitute continuing violation of ESA. Ctr. for Biological Diversity v Hamilton (2006, CA11 Ga) 453 F3d 1331, 62 Envt Rep Cas 1641, 19 FLW Fed C 701 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 66 Envt Rep Cas 1620) and (criticized in Sierra Club v Johnson (2009, ND Cal) 69 Envt Rep Cas 1919, 39 ELR 20051). 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) 2008 US App LEXIS 25358, 30 BNA Intl Trade Rep 1873, 39 ELR 20304.
Tenth Amendment does not restrict enforcement of Endangered Species Act (16 USCS §§ 1531 et seq.) because of powers of Congress to enact legislation implementing valid treaties and to regulate commerce; having bound itself under its own law to refrain from "taking" federally-designated endangered species, having sought to secure financial advantages under Endangered Species Act, and having sought to retain managerial control over resident wildlife subject to provisions of Act, state impliedly consented to be sued under Act. Palila v Hawaii Dep't of Land & Natural Resources (1979, DC Hawaii) 471 F Supp 985, 14 Envt Rep Cas 1204, 9 ELR 20426, affd (1981, CA9 Hawaii) 639 F2d 495, 15 Envt Rep Cas 1741, 11 ELR 20446. In issuing biological opinion (BO), defendant U.S. Fish and Wildlife Service was consulting agency, not action agency, and cannot be held responsible for "maladministration" of its BO; thus, plaintiff Indian Tribe's claim under § 9 of Endangered Species Act, 16 USCS §§ 1538(a)(1)(B), 1540(g)(1)(A), failed. 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. Animal rights organization were not authorized to bring citizen suit through § 11(g) of Endangered Species Act, 16 USCS § 1540(g), to enforce terms of captive-bred wildlife permit, issued under 16 USCS § 1539(a)(1)(A), for circus owner's Asian elephants because Congress determined that only government, through Secretary of Interior, could bring actions for violations of permit issued by U.S. Fish and Wildlife services. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas 1243. 7.--Evidence Government did not prove beyond reasonable doubt that falcons defendant transported were anatum peregrine falcons, which are endangered species, where witness conceded that he could not make conclusive identification on bird's features, and thus, conviction under Endangered Species Act, 16 USCS §§ 1538(a)(1)(E) and 1540(b)(1), for purchase and transport of anatum peregrine falcons, could not be sustained. United States v Doyle (1986, CA9 Mont) 786 F2d 1440, 16 ELR 20519, cert den (1986) 479 US 984, 93 L Ed 2d 576, 107 S Ct 572. Endangered Species Act (16 USCS §§ 1531 et seq.) and National Oceanic Atmospheric Administration (NOAA) regulations do not shift burden of proof for establishing failure to use turtle excluder device while shrimping, in violation of Act, and burden remains on government; thus, district court erred in granting summary judgment against shrimpers where only evidence before ALJ was NOAA's Notice of Violation and Assessment, which is unsworn document containing only factual allegation of charged crime. United States v Menendez (1995, CA5 La) 48 F3d 1401, 40 Envt Rep Cas 1629, 32 FR Serv 3d 301, 25 ELR 20938, on remand, summary judgment gr sub nom United States v Dung Van Nguyen (1995, ED La) 1995 US Dist LEXIS 17146. Use of hearsay evidence during hearing in civil penalty proceeding, and ALJ's reliance upon such evidence, does not violate due process rights of one charged with violating Act; strict rules of evidence do not apply in administrative context, and hearsay evidence is admissible in administrative hearings. Fish and Wildlife Service v Tatum (1993, FWS App) 7 ORW 220. 8.--Seizure Endangered fish or wildlife imported pursuant to exemption permit issued under former Endangered Species Act of 1969, if held in course of commercial activity on date of enactment of Endangered Species Act of 1973 (16 USCS §§ 1531 et seq.), was subject to all provisions of 1973 Act, including seizure pursuant to enforcement provisions contained in 16 USCS § 1540(e). Delbay Pharmaceuticals, Inc. v Department of Commerce (1976, DC Dist Col) 409 F Supp 637, 6 ELR 20211. Government's motion for summary judgment was granted on several consignees' action seeking declaratory and injunctive relief to compel immediate delivery to them of their shipments of bigleaf mahogany lumber, where consignees argued that each shipment was accurately reflected in accompanying export permit duly issued and signed by Brazil's management authority, and that neither United States Fish and Wildlife Service (FWS) nor Animal and Plant Health Inspection Service (APHIS) was empowered to go behind export permit to verify what it purported to certify, namely that lumber was lawfully obtained in country of origin; government agencies' seizure, holding, and effectively expropriating shipments was lawful under Convention on International Trade in Endangered Species and Endangered Species Act of 1973, 16 USCS §§ 1531 1544, specifically 16 USCS § 1540(e)(4)(A). Castlewood Prods. v Norton (2003, DC Dist Col) 264 F Supp 2d 9, 56 Envt Rep Cas 2049, affd (2004, App DC) 361 US App DC 151, 365 F3d 1076, 58 Envt Rep Cas 1353, 26 BNA Intl Trade Rep 2145.
Forfeiture under 16 USCS § 1540 does not constitute taking without just compensation violative of due process clause of Fifth Amendment, because Act does not prevent all sales of endangered wildlife, but only those sales in interstate or foreign commerce, and even these sales are permitted if Secretary of Interior approves them for scientific purposes or to enhance propagation or survival of affected species. United States v Kepler (1976, CA6 Ky) 531 F2d 796, 6 ELR 20340. Given similarity in language and purpose between attorney's fees provisions of Civil Rights Act and Endangered Species Act, court is mandated to apply Civil Rights standards for awarding fees to prevailing defendants in ESA cases. Marbled Murrelet v Babbitt (1999, CA9 Cal) 182 F3d 1091, 99 CDOS 5408, 99 Daily Journal DAR 6899, 48 Envt Rep Cas 1983, 49 Envt Rep Cas 2015, 29 ELR 21326, cert den (2000) 528 US 1115, 145 L Ed 2d 812, 120 S Ct 933, 50 Envt Rep Cas 1384. Seized items are forfeited to U.S., where government alleged that items were subject to forfeiture because they were manufactured from hides of crocodilians designated as endangered, and where owner of items claimed to be innocent owner, because Lacey Act provides for forfeiture on strict liability basis, since to permit importer to recover property because he or she lacks culpability would lend support to continued commercial traffic of forbidden wildlife, and, therefore, innocent owner defense is not available in forfeiture proceeding based on violations of Endangered Species Act. United States v One Handbag of Crocodilus Species (1994, ED NY) 856 F Supp 128. 10. Promulgation of regulations Although Secretary of Interior failed to take timely action on petition to list red-legged frog as endangered species, and although statutory rider, Public Law 104-06, did not repeal or modify Endangered Species Act, Secretary was unable to comply with listing duty under Act where rider rescinded funding for making final determination that species was endangered, and therefore necessarily restricted Secretary's ability to comply with his duty. Environmental Defense Ctr. v Babbitt (1995, CA9 Cal) 73 F3d 867, 95 CDOS 9368, 95 Daily Journal DAR 16341, 41 Envt Rep Cas 1865, 26 ELR 20359. Commerce Secretary/National Marine Fisheries Service's promulgation of regulations requiring shrimp trawlers to use turtle exclusion devices or in some instances to reduce tow times was procedurally proper under 5 USCS § 553(b), where agency published proposed rules in Federal Register, conducted 16 public hearings that were properly noticed, and changed proposed rules to include reduced tow times provision upon frequent suggestion through public comment, because agency was not even required to hold public hearings on these regulations pursuant to Endangered Species Act (16 USCS §§ 1531 et seq.), but did in fact notify many concerned parties through various means, hold hearings, and achieve final regulations that were no surprise to plaintiffs. La. ex rel. Guste v Verity (1988, ED La) 681 F Supp 1178, 18 ELR 20944, affd (1988, CA5 La) 850 F2d 211, cert den (1989) 488 US 1004, 102 L Ed 2d 775, 109 S Ct 783. Commerce Secretary/National Marine Fisheries Service's promulgation of regulations under Endangered Species Act (16 USCS §§ 1531 et seq.) requiring shrimp trawlers to reduce incidental catch and mortality of sea turtles has rational basis and is not arbitrary or capricious under 5 USCS § 706(2)(A), despite claim by Louisiana and its shrimpers that regulators failed to consider best scientific data available, because administrative record demonstrates that scientific information was collected from numerous sea turtle experts and shrimping organizations, and that regulations were tailored to reflect limited scientific data in some areas. La. ex rel. Guste v Verity (1988, ED La) 681 F Supp 1178, 18 ELR 20944, affd (1988, CA5 La) 850 F2d 211, cert den (1989) 488 US 1004, 102 L Ed 2d 775, 109 S Ct 783. Fish and Wildlife Service's protocols for determining presence of quino checkerspot butterfly were not "rules" under Administrative Procedure Act because protocols could not form basis for liability; liability for butterfly "taking" could only be based on proof that "taking" prohibition under Endangered Species Act was violated. Nat'l Ass'n of Home Builders v Norton (2003, DC Dist Col) 298 F Supp 2d 68, 58 Envt Rep Cas 1455, affd (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep Cas 2121, 35 ELR 20143. Fish and Wildlife Service's protocols for determining presence of quino checkerspot butterfly were not "rules" under Administrative Procedure Act where home builders that brought suit challenging protocols failed to show, inter alia, that any reliance on protocols by state or local authorities in local land use permitting process was product of federal requirement. Nat'l Ass'n of Home Builders v Norton (2003, DC Dist Col) 298 F Supp 2d 68, 58 Envt Rep Cas 1455, affd (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep Cas 2121, 35 ELR 20143. Fish and Wildlife Service (FWS) was entitled to summary judgment in action under 16 USCS § 1540(g)(1)(A), which was filed by builder associations challenging FWS' designation of Central California population of California tiger salamander as "threatened" under Endangered Species Act, 16 USCS §§ 1531 et seq.; FWS considered inadequacy of existing regulatory mechanisms as required by 16 USCS § 1533(a)(1), and it rationally concluded that there was inadequate protection under Clean Water Act, 33 USCS §§ 1251 et seq., California Streambed Alteration Act, Cal. Fish & Game Code §§ 1600 et seq., California Environmental Quality Act, Cal. Pub. Res. Code §§ 21000 et seq., and California Porter-Cologne Water Quality Control Act, Cal. Water Code §§ 13000 et seq.; further, FWS articulated standard, which was five-factor threats analysis under 16 USCS § 1533(a)(1) and standard under 16 USCS § 1532(20), for ascertaining salamander's threatened status; listing was not rendered arbitrary and capricious under 5 USCS § 706(2)(A) just because threat estimates decreased as other facts, such as habitat loss and development risks, supported listing. Home Builders Ass'n v United States Fish & Wildlife Serv. (2007, ND Cal) 529 F Supp 2d 1110, affd (2009, CA9 Cal) 321 Fed Appx 704, 39 ELR 20086.
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