1 of 15 documents united states code service

§ 1532. Definitions
For the purposes of this Act--

(1) The term "alternative courses of action" means all alternatives and thus is not limited to original project objectives and agency jurisdiction.

(2) The term "commercial activity" means all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, That it does not include exhibition of commodities by museums or similar cultural or historical organizations.

(3) The terms "conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

(4) The term "Convention" means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and the appendices thereto.

(5) (A) The term "critical habitat" for a threatened or endangered species means--

(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act [15 USCS § 1533], on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act [15 USCS § 1533], upon a determination by the Secretary that such areas are essential for the conservation of the species.

(B) Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph.

(C) Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.

(6) The term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man.

(7) The term "Federal agency" means any department, agency, or instrumentality of the United States.

(8) The term "fish or wildlife" means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.

(9) The term "foreign commerce" includes, among other things, any transaction--

(A) between persons within one foreign country;

(B) between persons in two or more foreign countries;

(C) between a person within the United States and a person in a foreign country; or

(D) between persons within the United States, where the fish and wildlife in question are moving in any country or countries outside the United States.

(10) The term "import" means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States.

(11) [Repealed]

(12) The term "permit or license applicant" means, when used with respect to an action of a Federal agency for which exemption is sought under section 7 [16 USCS § 1536], any person whose application to such agency for a permit or license has been denied primarily because of the application of section 7(a) [16 USCS § 1536(a)] to such agency action.

(13) The term "person" means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States.

(14) The term "plant" means any member of the plant kingdom, including seeds, roots and other parts thereof.

(15) The term "Secretary" means, except as otherwise herein provided, the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970 [5 USCS § 903 note]; except that with respect to the enforcement of the provisions of this Act and the Convention which pertain to the importation or exportation of terrestrial plants, the term also means the Secretary of Agriculture.

(16) The term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

(17) The term "State" means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pacific Islands.

(18) the term "State agency" means any State agency, department, board, commission, or other governmental entity which is responsible for the management and conservation of fish, plant, or wildlife resources within a State.

(19) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

(20) The term "threatened species" means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

(21) The term "United States", when used in a geographical context, includes all States.

HISTORY:

(Dec. 28, 1973, P.L. 93-205, § 3, 87 Stat. 885; July 12, 1976, P.L. 94-359, § 5, 90 Stat. 913; Nov. 10, 1978, P.L. 95-632, § 2, 92 Stat. 3751; Dec. 28, 1979, P.L. 96-159, § 2, 93 Stat. 1225; Oct. 13, 1982, P.L. 97-304, § 4(b), 96 Stat. 1420; Oct. 7, 1988, P.L. 100-478, Title I, § 1001, 102 Stat. 2306.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

References in text:

"This Act", referred to in this section, is Act Dec. 28, 1973, P.L. 93-205, 87 Stat. 884, which appears generally as 16 USCS §§ 1531 et seq. For full classification of this Act, consult USCS Tables volumes.

"The customs laws of the United States", referred to in this section, appear generally as 19 USCS §§ 1 et seq.

Effective date of section:

This section is effective on the date of its enactment on Dec. 28, 1973, as provided by Act Dec. 28, 1973, P.L. 93-205, § 16, 87 Stat. 903, which appears as 16 USCS § 1531 note.

Amendments:

1976. Act July 12, 1976, in para. (1), inserted ": Provided, however, That it does not include exhibition of commodities by museums or similar cultural or historical organizations.".

1978. Act Nov. 10, 1978, redesignated paras. (1) to (3) as paras. (2) to (4), respectively, and added new para. (1), redesignated para. (4) as para. (6), and paras. (5) to (7) as paras. (8) to (10), respectively, and added new paras. (5) and (7), redesignated paras. (8) to (16) as paras. (13) to (21), respectively, and added new paras. (11) and (12), and substituted paras. (16) and (18) for paras. (16) and (18), as so redesignated, which read:

"(16) The term 'species' includes any subspecies of fish or wildlife or plants and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature.

"(18) The term 'State agency' means the State agency, department, board, commission, or other governmental entity which is responsible for the management and conservation of fish or wildlife resources within a State.".

1979. Act Dec. 28, 1979, in para. (11), substituted "violate section 7(a)(2)." for "(A) jeopardize the continued existence of an endangered or threatened species, or (B) result in the adverse modification or destruction of a critical habitat.".

1982. Act Oct. 13, 1982, deleted para. (11), which read: "The term 'irresolvable conflict' means, with respect to any action authorized, funded, or carried out by a Federal agency, a set of circumstances under which, after consultation as required in section 7(a) of this Act, completion of such action would violate section 7(a)(2).".

1988. Act Oct. 7, 1988 substituted para. (13) for one which read: "The term 'person' means an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government."; and, in para. (15), inserted "also".

Other provisions:

Termination of Trust Territories of the Pacific Islands. For termination of Trust Territories of the Pacific Islands referred to in para. (17), see notes preceding 48 USCS § 1681.
NOTES:
Code of Federal Regulations:

Animal and Plant Health Inspection Service, Department of Agriculture--Endangered species regulations concerning terrestrial plants, 7 CFR 355.1 et seq.

Related Statutes & Rules:

This section is referred to in 16 USCS § 1536.

Research Guide:

Am Jur:

35A Am Jur 2d, Fish, Game, and Wildlife Conservation §§ 65, 68.

Am Jur Proof of Facts:

89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125.

Forms:

13 Fed Procedural Forms L Ed, Natural and Mineral Resources (2005) § 50:214.

12 Am Jur Pl & Pr Forms (2008), Fish and Game, § 30.

Annotations:

Validity, Construction, and Application of Antiquities Act of 1906, 16 U.S.C.A. §§ 431 et seq. [16 USCS §§ 431 et seq.]. 11 ALR Fed 2d 623.

Construction and Application of State Endangered Species Acts. 44 ALR6th 325.

Texts:

2A Environmental Law Practice Guide (Matthew Bender), ch 12A, Citizen Suits §§ 12A.05, 12A.09.

2A Environmental Law Practice Guide (Matthew Bender), ch 12C, Criminal Enforcement § 12C.03.

2A Environmental Law Practice Guide (Matthew Bender), ch 15A, Indian Country Environmental Law § 15A.02.

4 Environmental Law Practice Guide (Matthew Bender), ch 18B, Environmental Trading Programs § 18B.02.

4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.

5 Environmental Law Practice Guide (Matthew Bender), ch 34A, Agricultural Environmental Law § 34A.05.

6 Environmental Law Practice Guide (Matthew Bender), ch 43, Alaska § 43.11.

8 Environmental Law Practice Guide (Matthew Bender), ch 81, Puerto Rico § 81.01.

5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.

Law Review Articles:

Wolf. Dissecting the Information Quality Act: A Look at the Act's Effect on the Florida Panther and Evidentiary Science. 11 Alb L Envtl Outlook 89, 2006.

Stromberg. The Endangered Species Act Amendments of 1978: A Step Backwards? 7 Boston College Environmental Affairs L Rev 33.

Fischman; Hall-Rivera. A Lesson for Conservation from Pollution Control Law: Cooperative Federalism for Recovery under the Endangered Species Act. 27 Colum J Envtl L 45, 2002.

Ruhl. Endangered Species Act Innovations in the Post-Babbittonian Era--Are There Any? 14 Duke Envtl L & Pol'y F 419, Spring 2004.

Estes. The effect of the Federal Endangered Species Act on state water rights. 22 Envtl L 1027, 1992.

Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species Act. 30 Envtl L 769, Fall 2000.

Moore. Seized by Nature: Suggestions on How to Better Protect Animals and Property Rights under the Endangered Species Act. 12 Great Plains Nat Resources J 149, Spring 2008.

Sinden. The Economics of Endangered Species: Why Less is More in the Economic Analysis of Critical Habitat Designations. 28 Harv Envtl L Rev 129, 2004.

Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January 1982.

Kunich. Preserving the Womb of the Unknown Species with Hotspots Legislation. 52 Hastings LJ 1149, August 2001.

Kunich. Preserving the Womb of the Unknown Species with Hotspots Legislation. 52 Hastings LJ 1149, August 2001.

Cosens. Nez Perce Water Rights Settlement Article: Truth or Consequences: Settling Water Disputes in the Face of Uncertainty. 42 Idaho L Rev 717, 2006.

Davison. Federal Agency Action Subject to Section 7(a)(2) of the Endangered Species Act. 14 Mo Envtl L & Pol'y Rev 29, Fall 2006.

Broderick. Towards Common Sense in ESA Enforcement: Federal Courts and the Limits on Administrative Authority and Discretion under the Endangered Species Act. 44 Nat Resources J 77, Winter 2004.

Goble. The Endangered Species Act: What We Talk About When We Talk About Recovery. 49 Nat Resources J 1, Winter 2009.

Ruhl. Past, Present, and Future Trends of the Endangered Species Act. 25 Pub Land & Resources L Rev 15, 2004.

Armstrong. Critical Habitat Designations under the Endangered Species Act: Giving Meaning to the Requirements for Habitat Protection. 10 SC Envtl LJ 53, Summer 2002.

Patlis. The Endangered Species Act: Thirty Years of Politics, Money, and Science: Riders on the Storm, or Navigating the Crosswinds of Appropriations and Administration of the Endangered Species Act: a Play in Five Acts. 16 Tul Envtl LJ 387, Summer 2003.

Brennan; Roth; Feldman; Greene. The Endangered Species Act: Thirty Years of Politics, Money, and Science: Square Pegs and Round Holes: Application of the "Best Scientific Data Available" Standard in the Endangered Species Act. 16 Tul Envtl LJ 387, Summer 2003.

Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.

Enzler; Bruskotter. Contested Definitions of Endangered Species: the Controversy Regarding How to Interpret the Phrase "a Significant Portion of a Species' Range". 27 Va Envtl LJ 1, 2009.

Doremus. New Directions in Environmental Law: the Endangered Species Act: Static Law Meets Dynamic World. 32 Wash U JL & Pol'y 175, 2010.

Interpretive Notes and Decisions:

1. Generally; other terms 2. "All methods and procedures" 3. "Conserve", "conserving", "conservation" 4. "Critical habitat" 5. "Distinct population segment" 6. "Import" 7. "Significant portion of its range" 8. "Species" 9.--"Endangered" 10.--"Threatened" 11. "Take" 12.--"Harm"

1. Generally; other terms

Suit by community of whales, dolphins, and porpoises for alleged violations of Endangered Species Act (ESA) and other federal statutes in connection with development of sonar system was dismissed for, inter alia, lack of standing because animals were not "persons" as defined under 16 USCS § 1532(13), part of ESA; also, claims were not ripe because there had been no proposal to use sonar system in challenged manner. Cetacean Cmty. v President of the United States (2003, DC Hawaii) 249 F Supp 2d 1206, affd (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR 20120.

National Marine Fisheries Service properly interpreted phrase "which interbreeds when mature," as set forth in 16 USCS § 1532(16), to mean absolute reproductive isolation was not prerequisite to recognizing distinct population segment (DPS) where phrase was grammatically ambiguous, legislative history was silent as to consequences of interbreeding between members of DPS and other populations outside DPS, and alternative interpretation would have led to potentially absurd results. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.

2. "All methods and procedures"

State proposition banning use of certain traps and poisons to capture or kill wildlife is preempted, to extent that federal agencies conclude that leghold trapping is necessary to protect endangered species, because federal authorities are required to use "all methods and procedures" necessary to protect endangered species under 16 USCS § 1532. Nat'l Audubon Soc'y v Davis (2000, ND Cal) 144 F Supp 2d 1160.

3. "Conserve", "conserving", "conservation"

"Conserve," as used in § 3(3) of Endangered Species Act (ESA) (16 USCS § 1532(3)) means, inter alia, to use methods necessary to bring endangered or threatened species to point at which measures provided in Act are no longer necessary. Sierra Club v Clark (1985, CA8 Minn) 755 F2d 608, 15 ELR 20391 (criticized in Humane Soc'y of the United States v Kempthorne (2006, DC Dist Col) 481 F Supp 2d 53).

Endangered Species Act (ESA) mandates Secretary to issue such regulations as deemed necessary and advisable to provide for conservation of threatened species, and conservation, under ESA (16 USCS § 1532(3)), is defined as all methods and procedures which are necessary to bring endangered species or threatened species to point at which measures provided pursuant to this chapter are no longer necessary. Louisiana ex rel. Guste v Verity (1988, CA5 La) 853 F2d 322, 18 ELR 21351.

Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) complies with express purpose of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., to preserve ecosystems upon which endangered and threatened species depend and to restore any such species to point at which measures provided pursuant to ESA are no longer necessary, 16 USCS § 1532(3). Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.

"Conservation," as defined in 16 USCS § 1532, cannot be limited to habitat control, but requires far more than merely avoiding elimination of endangered species. Defenders of Wildlife v Andrus (1977, DC Dist Col) 428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.

Because under 16 USCS § 1539(a)(2)(A), (B), incidental take permit (ITP) applicants were only required to minimize and mitigate impact on species "to maximum extent possible" and were only required not to reduce likelihood of survival and recovery of species, ITPs could be granted even if doing so threatened recovery of listed species, and to extent that there was conflict between general definition of "conservation" under 16 USCS § 1523(3) or survival under 16 USCS § 1533(f)(1), and specific criteria in 16 USCS § 1539(a)(2)(B), specific statutory language controlled and challenge by plaintiff Native American and environmental organizations against defendants, Secretaries of Departments of Interior and Commerce, to No Surprises Rule and Permit Revocation Rule, 50 C.F.R. § 17.22(b), 17.32(b), failed. 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 § 1532(3) 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.

4. "Critical habitat"

It is clear that Congress intended that conservation and survival be two different (though complementary) goals of Endangered Species Act, 16 USCS §§ 1531 et seq.; clearly, then, purpose of establishing "critical habitat" is for government to carve out territory that is not only necessary for species' survival but also essential for species' recovery. Gifford Pinchot Task Force v United States Fish & Wildlife Serv. (2004, CA9 Wash) 378 F3d 1059, 59 Envt Rep Cas 1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387 F3d 968.

Environmental impact statement was not required for project that involved logging on 578 acres scattered throughout national forest, of which 125 acres had been designated as critical habitat for northern spotted owl; proposed action alternative had best potential to achieve project's purposes and it would have had long-term benefits effects for owl, with only short-term minor adverse effects. Envtl. Prot. Info. Ctr. v United States Forest Serv. (2006, CA9 Cal) 451 F3d 1005.

Determining whether species uses area with sufficient regularity that it is "occupied" is highly contextual and fact-dependent inquiry; relevant factors may include how often area is used, how species uses area, necessity of area for species' conservation, species characteristics such as degree of mobility or migration, and any other factors that may bear on inquiry; such factual questions are within purview of unique expertise of U.S. Fish and Wildlife Services and are entitled to standard deference afforded such agency determinations. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.

In designating critical habitat for Mexican Spotted Owl, U.S. Fish and Wildlife Services (FWS) permissibly rejected plaintiff cattle association's "resides in" interpretation as too narrow and acted within its authority to designate as "occupied" areas that owl used with sufficient regularity that it was likely to be present during any reasonable span of time; interpretation was sensible when considered in light of many factors that were relevant to factual determination of occupancy, it was consistent with U.S. Supreme Court's decision in Amoco Production Co., it was supported by purpose of Endangered Species Act (ESA), and it promoted ESA's conservation goals and comported with ESA's policy of "institutionalized caution." Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.

Critical habitat--including "occupied critical habitat"--is defined in relation to areas necessary for conservation of species, not merely to ensure its survival under 16 USCS § 1532(5)(A), and limiting U.S. Fish and Wildlife Services to designating habitat only where Mexican Spotted Owl "resided" focused too narrowly on owl survival and ignored broader purpose of critical habitat designation. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.

Process for designating critical habitat of Mexican Spotted Owl which U.S. Fish and Wildlife Services (FWS) utilized gave court strong foundation for its conclusion that agency did not arbitrarily and capriciously treat areas in which owls were not found as "occupied"; FWS did not impermissibly change course in its final rule from its approach to prior designations, amount of land designated was not disproportionate to number of owls, and inclusion of particular district was not arbitrary and capricious; agency designated only "occupied" areas as critical habitat, even though it may not have identified with certainty in all cases known owl constantly inhabiting that territory, and process that FWS used to select habitat for designation, measures it took to exclude areas where owls were absent or use by owls was infrequent, and its careful work to confirm presence of owls in designated areas demonstrated that FWS designated areas that correspond to habitat where owl was likely to be found--agency action was neither based on speculation nor counter to evidence. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.

Industry groups, in context of their challenge to designation by U.S. Fish and Wildlife Service (FWS) of about 850,000 acres of land as critical habitat for 15 endangered or threatened vernal pool species, contended that FWS erred by conflating standards for occupied and unoccupied habitat; although FWS described protected habitat as being composed of "occupied" subunits, it acknowledged that some areas that constitute unoccupied critical habitat would be present within some subunits; industry groups failed to explain how FWS's procedure ran afoul of statutory scheme, as, under 16 USCS § 1532(5)(A), area constituted "critical habitat" if it met requirements for occupied habitat or for unoccupied habitat; there was no requirement that every area be classified as one or other, and, in case of vernal pool complexes, which might change dramatically from year to year, such classification might be impossible. Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210.

Industry groups challenged U.S. Fish and Wildlife Service's (FWS) classification, as critical habitat, pursuant to 16 USCS § 1532(5)(A)(i), of about 850,000 acres of land for 15 endangered or threatened vernal pool species because, according to industry groups, areas in which physical and biological features essential to conservation of species did not occur simultaneously; in vernal pool complexes, however, elements necessary to species' survival were present in distinct areas, and there was no reason that two elements for conservation of species had to be present in same area. Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210.

Industry groups, in context of their challenge to designation by U.S. Fish and Wildlife Service (FWS) of about 850,000 acres of land as critical habitat for 15 endangered or threatened vernal pool species, contended that FWS's determination of primary constituent elements, pursuant to 16 USCS § 1532(5)(A)(i), was invalid because FWS failed to determine when protected species would be conserved, pursuant to 16 USCS § 1532(3); yet there was no reason why FWS could not determine what elements were necessary for conservation without determining exactly when conservation would be complete; 16 USCS § 1532(5)(A) required before designation of occupied critical habitat was determination of what physical or biological features were essential to conservation of species; and it was unclear from industry groups' argument why it was impossible to determine elements essential to goal without determining when goal should be met. Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210.

Fish and Wildlife Service did not act arbitrarily in finding that, because plant species was no longer found in its natural habitat and survived only in non-native vegetation, altered ecosystem in which it occurred could not reasonably be considered its "critical habitat" where plant species had until recently been thought to be extinct and where it could not reasonably be determined what factors in non-native growing area were "essential" to existence of plant. 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.

Timber salvage sales in Mark Twain National Forest will be enjoined, even though Forest Service and Fish and Wildlife Service agreed that proposed salvage sales were not likely to adversely affect endangered "Indiana bat," where researchers note it is protection of summer habitat and foraging area that should be focus of new efforts to protect bat against continued decline in population, because Forest Service cannot merely claim that no "known habitat" of bat will be involved in sales when study after study observes that destruction of forest habitat at issue could have serious impact on Indiana bat population. Bensman v United States Forest Serv. (1997, WD Mo) 984 F Supp 1242.

Fish and Wildlife Service's designation of critical habitat for Alameda whipsnake was in violation of Endangered Species Act, 16 USCS §§ 1531 et seq., where Service failed to identify within Final Rule physical or biological features essential to conservation of species, required element of occupied land designated as critical habitat under 16 USCS § 1532(5)(A)(i). Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2003, ED Cal) 268 F Supp 2d 1197 (criticized in Home Builders Ass'n v United States Fish & Wildlife Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226) and (criticized in Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210).

Fish and Wildlife Service's designation of critical habitat for Alameda whipsnake was in violation of Endangered Species Act, 16 USCS §§ 1531 et seq., where Service failed to comply with statutory requirement that under 16 USCS § 1532(5)(A)(i); Service was required to make finding, prior to designating particular area as critical habitat, that area in question might require special management considerations and protections at some time in future; nothing in Service's arguments pointed court to indication in Final Rule or Administrative Record that Service made that finding prior to designation of critical habitat or that it was factor in designation. Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2003, ED Cal) 268 F Supp 2d 1197 (criticized in Home Builders Ass'n v United States Fish & Wildlife Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226) and (criticized in Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210).

Fish and Wildlife Service was entitled to deference in revising endangered seaside sparrow's critical habitat designation, but once it determined revision was necessary it was under obligation to take timely action in determining specific schedule and process. Biodiversity Legal Found. v Norton (2003, DC Dist Col) 285 F Supp 2d 1, 57 Envt Rep Cas 1916, motion gr, dismd (2004, App DC) 2004 US App LEXIS 9238.

Under Endangered Species Act, 16 USCS § 1532(5)(A), U.S. Army Corps of Engineers' issuance of wetlands dredge-and-fill permit for construction of shopping center under § 404 of Clean Water Act, 33 USCS § 1344(b)(1), did not jeopardize existence of endangered Alabama red-bellied turtle because wetland involved did not constitute critical habitat. D'Olive Bay Restoration & Pres. Comm., Inc. v United States Army Corps of Eng'rs (2007, SD Ala) 513 F Supp 2d 1261, 65 Envt Rep Cas 1267.

Court rejected cattle growers' association's argument that Fish and Wildlife Service failed to comply with requirement under 16 USCS § 1532(5)(A)(i) by not making finding for each of 52 critical habitat units for Mexican Spotted Owl; statute did not require Service to make separate determination for each of 52 habitats. Ariz. Cattle Growers' Ass'n v Kempthorne (2008, DC Ariz) 534 F Supp 2d 1013, affd (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.

While minimizing water quality changes was deemed necessary measure for tidewater goby, Fish & Wildlife Service (FWS) did not supply condition on implementing it, thus FWS submitted inadequate incidental take statement under 16 USCS § 1536(b)(4) and plaintiff water district was granted summary judgment as to permit to county and state agency to breach sand bar separating two lakes from Pacific Ocean issued by Army Corps of Engineers; in failing to include required term and condition, FWS has ignored plain language of Endangered Species Act and also removed Administrator of EPA's ability to revoke permit for noncompliance under 16 USCS § 1539(a)(2)(C), thus, Corps' reliance on FWS's legally inadequate incidental take statement was arbitrary and capricious under 5 USCS § 706(2)(A). Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F Supp 2d 242.

Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to designate "critical habitat" for jaguar was set aside because decision was not based on best available scientific evidence; decision's heavy reliance on expert opinion that no area in United States was critical for jaguar's survival unduly limited consideration by FWS of recovery goal of Endangered Species Act, 16 USCS §§ 1531 et seq. Ctr. for Biological Diversity v Kempthorne (2009, DC Ariz) 607 F Supp 2d 1078, 39 ELR 20073.

Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to designate "critical habitat" for jaguar was set aside because FWS articulated no rational basis for invoking exceedingly rare imprudence exception to designation of critical habitat. Ctr. for Biological Diversity v Kempthorne (2009, DC Ariz) 607 F Supp 2d 1078, 39 ELR 20073.

Property owners and civic organization had not demonstrated that United States Fish and Wildlife Service's (FWS) designation of land units 2, unit 4 as critical habitats was arbitrary and capricious because FWS explained in its final rule that both units were essential for conservation of beach mouse within meaning of 16 USCS § 1532(5)(A)(i) because they connected adjacent habitat units and because they provided habitat needed for storm refuge, expansion, natural movements, and re-colonization; moreover, pursuant to 16 USCS § 1533(b)(2), reviewers, five individuals with scientific expertise that included familiarity with species, geographic region in which species occurred, and conservation biology principles, concurred generally with FWS's methods as well as its conclusions; further, baseline approach commonly resulted in finding that no incremental economic impacts were attributable to habitat designation and property owners and organization fell far short of demonstrating that FWS's failure to quantify delay and permitting costs was arbitrary and capricious. Fisher v Salazar (2009, ND Fla) 656 F Supp 2d 1357.