1 of 15 documents united states code service

19. Intervention

Government intervenors in suit brought by environmental interest group against Fish and Wildlife Service lacked standing to appeal judgment in which original plaintiff and defendant agreed to accept "Clarified Judgment and Findings" without showing of some injury from judgment below. Sierra Club v Babbitt (1993, CA5 Tex) 995 F2d 571, 24 ELR 20891, reh den (1993, CA5 Tex) 1993 US App LEXIS 23493.

Indian Community with interest in government's recently completed "Additional Active Conservation Capacity" behind dam, in which it had right to store water, was not necessary party to suit by environmental groups against government for violating Endangered Species Act where government would adequately represent Community's interest. Southwest Ctr. for Biological Diversity v Babbitt (1998, CA9 Ariz) 150 F3d 1152, 98 CDOS 6173, 98 Daily Journal DAR 8542, 41 FR Serv 3d 284, 28 ELR 21560.

International association of fish and wildlife agencies was permitted to intervene in action against federal defendants for alleged violations of Refuge Recreation Act (16 USCS §§ 660k et seq.), National Wildlife System Administration Act (16 USCS §§ 668dd et seq.), Endangered Species Act (16 USCS §§ 1531 et seq.), and National Environmental Policy Act (42 USCS §§ 4321 et seq.), regarding management of national wildlife refuges, to represent state authorities in administering fishing and hunting programs on refuges, since their participation contributed perspective that might not otherwise have been represented. Humane Soc. of United States v Clark (1985, DC Dist Col) 109 FRD 518, 3 FR Serv 3d 423.

One of 2 nonprofit organizations, which represented interests of recreational hunting and trapping enthusiasts in rulemaking proceeding in which 15 national wildlife refuges were open to recreational hunting and fishing, was denied permission to intervene in action against government defendants, alleging violations of Refuge Recreation Act (16 USCS §§ 660k et seq.), National Wildlife System Administration Act (16 USCS §§ 668dd et seq.), Endangered Species Act (16 USCS §§ 1531 et seq.), and National Environmental Policy Act (42 USCS §§ 4321 et seq.), since it failed to show difference between its position and that of organization granted permissive intervention to represent hunters. Humane Soc. of United States v Clark (1985, DC Dist Col) 109 FRD 518, 3 FR Serv 3d 423.

Nonprofit organizations, which represented interests of recreational hunting and trapping enthusiasts in rulemaking proceeding in which 15 national wildlife refuges were opened to recreational hunting and fishing, were not entitled to intervene as of right in support of government defendants' decisions to add 28 refuges to list, in action alleging violations of Refuge Recreation Act (16 USCS §§ 660k et seq.), National Wildlife System Administration Act (16 USCS §§ 668dd et seq.), Endangered Species Act (16 USCS §§ 1531 et seq.), and National Environmental Policy Act (42 USCS §§ 4321 et seq.), since intervenors failed to show difference between their interest and that of defendants. Humane Soc. of United States v Clark (1985, DC Dist Col) 109 FRD 518, 3 FR Serv 3d 423.

In suit by animal rights group charging government with violating Endangered Species Act by permitting night club performer to purchase and maintain orangutans, performer had right to intervene where he had substantial economic interest in preserving his rights to use orangutans in his act. People for the Ethical Treatment of Animals v Babbitt (1993, DC Dist Col) 151 FRD 6, 27 FR Serv 3d 1164.

In case in which intervenor-applicants, cattleman's association and two organizations, (1) satisfied requirements for Article III standing because they demonstrated that would sustain direct injury if county and conservation groups obtained any of their requested relief; (2) established interest relating to designation of Gunnison sage-grouse as threatened or endangered by virtue of establishing constitutional standing; (3) showed that disposition of case could, as practical matter impair or impede intervenors' ability to protect their interest; and (4) demonstrated that their interests were not adequately represented by existing parties, their Fed. R. Civ. P. 24(a) motion to intervene as matter of right was granted. County of San Miguel v MacDonald (2007, DC Dist Col) 244 FRD 36, 68 FR Serv 3d 1434.

Hunting rights advocate established right to intervene under Fed. R. Civ. P. 24(a) in action under 16 USCS § 1540 challenging issuance by Bureau of Land Management of resource management plans for Arizona district because advocate established significantly protectable interest, that was not adequately protected by Bureau or Fish and Wildlife Service, related to claims of violations under 16 USCS § 1536 regarding lead ammunitions and California condor. Ctr. for Biological Diversity v United States BLM (2010, DC Ariz) 266 FRD 369.

20. Ripeness

Environmental club letters, in 1990, 1994, and 1998, threatening legal action for Endangered Species Act violations but disclaiming that it would bring suit against water user individually, if considered as written notices of violation for purposes of 16 USCS § 1540(g)(2)(A), and followed by years of inactivity, presented no case or controversy for water user's declaratory judgment action. Shields v Norton (2002, CA5 Tex) 289 F3d 832, 54 Envt Rep Cas 1477, 32 ELR 20639, reh den (2002, CA5 Tex) 2002 US App LEXIS 16596 and cert den (2002) 537 US 1071, 154 L Ed 2d 565, 123 S Ct 663, 56 Envt Rep Cas 1032.

Application of Ash Creek factors required dismissal for lack of jurisdiction over plaintiffs' Endangered Species Act (ESA) claims as claims were not yet ripe for review; case did not involve purely legal issues, there was no final agency action as Fish and Wildlife Service had not finalized its interpretation of regulations pertaining to control of depredating wolves, direct and immediate impact from agency inaction was uncertain, and addressing merits of case would not have increased efficacy of administration of ESA. Gordon v Norton (2003, CA10 Wyo) 322 F3d 1213, 55 Envt Rep Cas 2135.

Action for protection of endangered species of bird is ripe for adjudication despite lack of final state determination with respect to removal of feral sheep and goats from bird's habitat. 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.

21. Complaint

Although count alleging violation of Endangered Species Act was not added to complaint until less than 60 days before trial, count would not be dismissed where evidence was fully developed at trial, dismissal for failure to comply with time limit of 16 USCS § 1540(g)(2)(A)(i) would work injustice to adjudication of claim, and further time allowance for defendant to prepare would produce no added evidence which would help court in its decision. 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).

District court properly dismissed county's "failure to act" causes of action against U.S. Fish and Wildlife Service (FWS) under 5 USCS § 706(1), and under 16 USCS § 1540(g)(1)(C); 16 USCS § 1533(c)(2) did not incorporate deadlines of petition process under § 1533(b)(3) and, therefore, FWS's determination in five-year review mandated under § 1533(c)(2) that listed marbled murrelets were not distinct population segment did not trigger judicially-enforceable duty to promptly publish proposed rule delisting murrelets. Coos County Bd. of County Comm'rs v Kempthorne (2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.

When defendant Fish & Wildlife Service's 16 USCS § 1533(c)(2)(A) five-year review determined that tri-state population endangered bird listing should not be changed, but imposed no new legal obligations and did not deny plaintiff forest products trade association any rights, it was not final agency action subject to review under 5 USCS § 704; association's 16 USCS § 1540(g)(1)(A) citizen suit challenge was dismissed for failure to state claim. Am. Forest Res. Council v Hall (2008, DC Dist Col) 533 F Supp 2d 84, dismd, as moot (2009, App DC) 2009 US App LEXIS 15421.

22. Injunctions

Ordinary test for preliminary injunction is not test under Endangered Species Act since balance of hardships and public interest tip heavily in favor of endangered species and Sierra Club is entitled to injunctive relief if Corps of Engineers violated substantive or procedural provision of Act by allowing construction of flood control channel in face of county's failure to transfer mitigation lands or by refusing to reinitiate consultation with Fish and Wildlife Service. Sierra Club v Marsh (1987, CA9 Cal) 816 F2d 1376, 17 ELR 20717.

District Court properly denied preliminary injunction requested by conservation group seeking to stop controlled hunting of deer in bald eagle preserve where group made no showing that hunt caused actual harm through eagles' ingestion of lead shot in deer killed but not recovered during hunt. American Bald Eagle v Bhatti (1993, CA1 Mass) 9 F3d 163, 24 ELR 20173.

Railroad's acts of striking and killing grizzly bears attracted to accidental corn spillages along its tracks amounted to taking for purposes of Endangered Species Act; however, railroad's efforts to clean up spill, and facts that bears had not become habituated to area and that no bears had been killed since clean up made likelihood of future deaths insufficient for injunction. National Wildlife Fed'n v Burlington N. R.R. (1994, CA9 Mont) 23 F3d 1508, 94 CDOS 3220, 94 Daily Journal DAR 6129, 24 ELR 20802 (criticized in Greenpeace v National Marine Fisheries Serv. (2000, WD Wash) 106 F Supp 2d 1066, 51 Envt Rep Cas 1119).

In environmental organization's action against Bureau of Land Management for failing to consult Fish and Wildlife service regarding impact of Bureau's management schedule for wilderness study area, district court did not err in denying injunctive relief to compel consultation with Service and holding claim moot where, after Bureau issued management schedule, it consulted with Service and received Service's written concurrence with schedule. Southern Utah Wilderness Alliance v Smith (1997, CA10 Utah) 110 F3d 724, 44 Envt Rep Cas 1460, 27 ELR 21035.

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

Plaintiffs are denied preliminary injunction against Navy's practice bombing on island of Vieques, even though they cite numerous defects in Navy's biological assessment for U.S. Fish and Wildlife Service under 16 USCS § 1540(g), where Navy's counter-arguments make plaintiffs unlikely to succeed on their challenge, because court cannot find that balancing of relative hardships favors plaintiffs at this stage of proceedings. Water Keeper Alliance v United States DOD (2001, DC Puerto Rico) 152 F Supp 2d 155, affd (2001, CA1 Puerto Rico) 271 F3d 21, 53 Envt Rep Cas 1481, 32 ELR 20314.

Conservation organizations were granted injunction against defendants, Secretary of Interior and United States Fish and Wildlife Service, requiring formal consultation, in conjunction with issuance of biological opinion, prior to taking of any agency action that might affect lynx or its critical habitat, after defendants declared lynx to be threatened rather than endangered and failed to designate critical habitat. Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89 Fed Appx 273.

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.

Environmental groups were entitled to permanent injunction, preventing FEMA from issuing flood insurance for any new development in suitable habitats of several endangered and threatened species in Florida Keys until FEMA and U.S. Fish and Wildlife Service had complied with requirements of Endangered Species Act, 16 USCS §§ 1531 et seq., and Administrative Procedure Act, 5 USCS §§ 551 et seq. and §§ 701 et seq., because environmental harm was likely absent permanent injunction and, even if public interest factors were relevant, public interest relating to protection of endangered species outweighed all other interests, including cost of development in Florida Keys. Fla. Key Deer v Brown (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.

FEMA had authority to limit availability of flood insurance in suitable habitats of several endangered and threatened species in Florida Keys because FEMA had sufficient discretion to implement National Flood Insurance Program in manner consistent with Endangered Species Act, 16 USCS §§ 1531 et seq., and FEMA's discretion, or lack thereof, to curtail availability of flood insurance within otherwise eligible community did not limit court's ability to enjoin FEMA from issuing flood insurance to new developments within suitable habitat of listed species during remand period. Fla. Key Deer v Brown (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.

Where environmental groups sought permanent injunction, preventing FEMA from issuing flood insurance for any new development in suitable habitats of several endangered and threatened species in Florida Keys until FEMA and U.S. Fish and Wildlife Service had complied with requirements of Endangered Species Act, 16 USCS §§ 1531 et seq., and Administrative Procedure Act, 5 USCS §§ 551 et seq. and §§ 701 et seq., granting motion would not require FEMA to violate Congress' mandate that FEMA make flood insurance available because endangered species had priority over primary missions of federal agencies. Fla. Key Deer v Brown (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.

Because United States Forest Service's issuance of 16 USCS § 1536(d) determination qualified as affirmative "agency action" under 16 USCS § 1536(a)(2), court had authority to issue injunction after reinitiation of consultation to prohibit activities that potentially violated ESA during consultation process; court prohibited all snowmobiling and snowmobile trail grooming within designated caribou recovery area inside Idaho Panhandle National Forest until completion of formal consultation. Defenders of Wildlife v Martin (2006, ED Wash) 454 F Supp 2d 1085, 64 Envt Rep Cas 1337, summary judgment gr, claim dismissed, claim allowed, injunction gr (2007, ED Wash) 2007 US Dist LEXIS 13061.

Court denied conservationist's motion for preliminary injunction where (1) because conservationist presented no conclusive evidence that demonstrated that protected whales had, since 2002, become entangled in state coastal waters or in fishing gear licensed by officers, conservationist had not made "strong showing" of likelihood of success on merits of his underlying claim that officers violated Endangered Species Act (ESA), (2) recent change in state fishing regulations undermined contention that whale entanglements were inevitable and because injunctive relief could have been granted only upon showing that alleged activity would have "actually" caused harm to endangered animals, and (3) presumption in cases arising under ESA was that balancing of harms and effect on public interest tipped in favor of protecting endangered animals; however, consistent with equitable powers conferred by 15 USCS § 1540(g)(1), court entered order that would ensure temporary monitoring of threat posed to endangered whales by fixed fishing gear without unduly disrupting commercial fishing industry. Strahan v Pritchard (2007, DC Mass) 473 F Supp 2d 230, motion den, summary judgment gr, partial summary judgment den, motion den, as moot (2010, DC Mass) 2010 US Dist LEXIS 133469.

Injunctive remedy enjoining state from allowing taking of lynx, as expressly authorized by 16 USCS § 1540(g)(1)(A), is well within federal district court's traditional equitable injunctive powers, and acting alone does not injure private plaintiffs' likelihood of success on merits. Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (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.

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 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.

Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that were brought into United States in violation of 16 USCS § 1538(a), (c); hunters' claim for alleged violation of 16 USCS § 1537 could not be brought under 16 USCS § 1540 (g)(1)(A) because hunters' allegation that agencies failed to cooperate with foreign nations' conservation programs alleged nothing more than maladministration of ESA, and adjudicating error on part of Secretary of Interior in administering ESA would effect wholesale abrogation of final agency action requirement under 5 USCS § 704. Conservation Force v Salazar (2009, ND Cal) 677 F Supp 2d 1203.

Unpublished Opinions

Unpublished: District court did not abuse its discretion in denying injunctive relief under Endangered Species Act, 16 USCS § 1540(g)(1)(A), to residents who sought to enjoin state agencies from enforcing removal of mobile homes that were located in state park where residents failed to show that violation of Act was likely to occur in connection with removal of their mobile homes. Pulaski v Chrisman (2005, CA9 Cal) 127 Fed Appx 993.

23. Scope and standard of review

Court of Appeals will review attorney fee awards under 16 USCS § 1540(g)(4) for abuse of discretion, and to see if District Court applied correct legal standard. Carson-Truckee Water Conservancy Dist. v Secretary of Interior (1984, CA9 Nev) 748 F2d 523, 21 Envt Rep Cas 2115, 15 ELR 20026, cert den (1985) 471 US 1065, 85 L Ed 2d 497, 105 S Ct 2139, 22 Envt Rep Cas 1784 and (ovrld on other grounds by 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) and (ovrld on other grounds as stated in Klamath Siskiyou Wildlands Ctr. v Babbitt (2000, DC Or) 105 F Supp 2d 1132, 30 ELR 20767) and (criticized on other grounds in Envtl. Prot. Info. Ctr. v Pac. Lumber Co. (2002, ND Cal) 229 F Supp 2d 993, 55 Envt Rep Cas 1886).

District Court may prohibit or condition action by defendants pending their formulation of proper timber management plan for national forest that adequately addresses effects of contemplated actions on endangered species' habitat; however, District Court may not in advance mandate specific feature of such plan. 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 on other grounds (1994, CA5 Tex) 18 F3d 1202, 38 Envt Rep Cas 1421, 28 FR Serv 3d 1293, 24 ELR 20888 and vacated, remanded on other grounds (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.

Because organizations brought challenge under 16 USCS § 1540(g)(1), citizen-suit provision of Endangered Species Act (ESA), to amended regulations adopted by Bureau of Land Management regarding grazing on public lands, court looked to ESA rather than Administrative Procedure Act (APA); however, because ESA contained no internal standard of review, "arbitrary and capricious" standard under 5 USCS § 706 applied. Western Watersheds Project v Kraayenbrink (2010, CA9 Idaho) 620 F3d 1187, 71 Envt Rep Cas 1449, 40 ELR 20235.

16 USCS § 1540(g)(1) does not direct trial courts to conduct de novo review in adjudicating citizens suits, and thus appropriate standard of review under § 1540(g)(1) is arbitrary and capricious standard provided by 5 USCS § 706(2)(A). Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v Peterson (1982, App DC) 222 US App DC 228, 685 F2d 678, 17 Envt Rep Cas 1844, 12 ELR 21058.

"Arbitrary or capricious" standard of judicial review provisions of Administrative Procedure Act, 5 USCS § 706, applies in citizen suit to actions taken pursuant to Endangered Species Act (16 USCS §§ 1531 et seq.). National Audubon Soc. v Hester (1986, DC Dist Col) 627 F Supp 1419, 16 ELR 20445, revd without op (1986, App DC) 791 F2d 210 and revd on other grounds (1986, App DC) 16 ELR 20940.

Discovery is limited to administrative record in environmental groups' citizen suit challenging EPA's stewardship of Virginia's rivers, streams, and coastlines, where 16 USCS § 1540(g) and 33 USCS § 1365(a) provide for judicial review via citizen suit but do not set forth standard for that review, because limiting judicial review to administrative record in typical citizen suits is consistent with sensible reluctance to involve judiciary too deeply in administrative decisionmaking, but circumstances of particular case may justify expanding record and groups may make more particularized request for extra-record discovery. American Canoe Ass'n v United States EPA (1999, ED Va) 46 F Supp 2d 473, 29 ELR 21315.

Lawsuit brought by environmental group that challenged procedure used by Secretary of Department of Interior and Fish and Wildlife Service to circumvent notice and hearing procedure set forth in 16 USCS § 1533(b)(3), part of Endangered Species Act, 16 USCS § 1531 et seq, was citizens' suit brought pursuant to 16 USCS § 1540 and scope of review by court was standard of review set forth for agency action in 5 USCS § 706 (2) (A), part of Administrative Procedure Act, 5 USCS §§ 701 to 706. Am. Lands Alliance v Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137, reconsideration gr, vacated, in part on other grounds (2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist Col) 2004 US Dist LEXIS 27533, dismd on other grounds (2004, App DC) 2004 US App LEXIS 15243.

United States Fish and Wildlife Service's (FWS) exclusions of critical habitat pursuant to § 4(b)(2) of Endangered Species Act, 16 USCS § 1533(b)(2), had to be remanded to FWS for further action and consideration consistent with all applicable laws and with reasoning of court's order. Home Builders Ass'n v United States Fish & Wildlife Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226, motion withdrawn, motion den, remanded on other grounds (2007, ED Cal) 2007 US Dist LEXIS 5208.

In 16 USCS § 1540(g) citizen suit wherein plaintiffs were seeking 16 USCS § 1533 endangered species listing for Gunnison sage-grouse under Endangered Species Act (ESA), 16 USCS §§ 1531-1544, two stipulated documents from prior case should have been included in agency record on appeal; twenty-eight remaining documents provided on Freedom of Information Act (FOIA), 5 USCS § 552, request consisted of maps showing species' limited range, proposals for critical habitat which hinged on listing, and listing drafts with accompanying public outreach materials; documents were adverse to agency's final determination and defendant Fish and Wildlife Service acknowledged that they represented all public documents considered in decision-making process; thus court found that they should have been provided as part of record. County of San Miguel v Kempthorne (2008, DC Dist Col) 587 F Supp 2d 64.

Claims arising directly under Endangered Species Act Citizen Suit Provision at 16 USCS § 1540(g)(1)(A), based upon events occurring in aftermath of agency decisions, are not limited by Administrative Procedure Act scope of review. Or. Natural Desert Ass'n v Kimbell (2009, DC Or) 593 F Supp 2d 1217, motion gr, in part, injunction gr, in part (2009, DC Or) 2009 US Dist LEXIS 50361.

Unpublished Opinions

Unpublished: Letter of Secretary of Department of Interiors challenged by plaintiffs did not constitute failure to perform "act or duty;" rather, letter said nothing more about emergency listing than that Secretary's "initial review" of petition suggested that circumstances did not justify emergency listing, and, thus, was nothing more than gratuitous status update on ongoing and incomplete process, which, at time, did not compel conduct by anyone. Inst. for Wildlife Prot. v Norton (2005, CA9 Wash) 149 Fed Appx 627.

24. Costs

In Freedom of Information Act request for documents related to administrative record of Fish and Wildlife Service's decision not to list western pond turtle under Endangered Species Act, 16 USCS §§ 1531 et seq., public interest environmental organizations showed prima facie case for waiver of duplication fees; fact that Service had public reading room for documents located 100 miles from organizations was, alone, not sufficient to rebut prima facie case. Friends of the Coast Fork v United States DOI (1997, CA9 Or) 110 F3d 53, 97 CDOS 2222, 97 Daily Journal DAR 4065, 27 ELR 21047.

Under Endangered Species Act, 16 USCS §§ 1531-1544, defendants are not entitled to costs and fees unless plaintiff's litigation was frivolous. Ocean Conservancy, Inc. v Nat'l Marine Fisheries Order Serv. (2004, CA9) 59 FR Serv 3d 491.

Because plaintiffs' case was not frivolous and under Endangered Species Act (ESA), 16 USCS §§ 1531-1544, defendants were not entitled to costs and fees unless plaintiff's litigation was frivolous, defendants were not entitled to their costs on appeal under Fed. R. App. P. 39(a)(1) because provisions of ESA overrode Rule 39. Ocean Conservancy, Inc. v Nat'l Marine Fisheries Order Serv. (2004, CA9) 59 FR Serv 3d 491.

Plaintiff is not entitled to award of costs by District Court where plaintiffs' claim for appellate printing costs and fees were not allowed under appellate court's mandate issued in case, items were not claimed in either of appellate courts, and neither court awarded such items. Hill v Tennessee Valley Authority (1979, ED Tenn) 84 FRD 226, 29 FR Serv 2d 691.

Plaintiff was entitled to out-of-pocket cost, and expenses not included in Bill of Costs consisting of depositions taken in case but not actually used in trial and therefore not includable in Bill, and travel expenses of counsel and expert witnesses to prepare for trial, as opposed to travel expenses for trial itself, which costs were included in Bell. Palila v Hawaii Dep't of Land & Natural Resources (1987, DC Hawaii) 118 FRD 125.

Pro se plaintiff who brought action against commercial lobster fisherman who had committed taking of humpback whale was not entitled to recover costs against fisherman pursuant to 16 USCS § 1540(g)(4) because plaintiff was entitled to trial transcript at government expense pursuant to 28 USCS § 753(f), plaintiff did not specify any other expenses that he incurred in litigating case, and pro se litigants were not entitled to attorney's fees. Strahan v Holmes (2010, DC Mass) 686 F Supp 2d 129.

25. Attorney fees

Interpretation of word "appropriate" in 42 USCS § 7607(f), under which party must have some success on merits before it becomes eligible for attorneys' fee award, controls construction of same term in 16 USCS § 1540(g)(4). Ruckelshaus v Sierra Club (1983) 463 US 680, 77 L Ed 2d 938, 103 S Ct 3274, 19 Envt Rep Cas 1249, 13 ELR 20664.

Court of Appeals will review attorney fee awards under 16 USCS § 1540(g)(4) for abuse of discretion, and to see if District Court applied correct legal standard. Carson-Truckee Water Conservancy Dist. v Secretary of Interior (1984, CA9 Nev) 748 F2d 523, 21 Envt Rep Cas 2115, 15 ELR 20026, cert den (1985) 471 US 1065, 85 L Ed 2d 497, 105 S Ct 2139, 22 Envt Rep Cas 1784 and (ovrld on other grounds by 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) and (ovrld on other grounds as stated in Klamath Siskiyou Wildlands Ctr. v Babbitt (2000, DC Or) 105 F Supp 2d 1132, 30 ELR 20767) and (criticized on other grounds in Envtl. Prot. Info. Ctr. v Pac. Lumber Co. (2002, ND Cal) 229 F Supp 2d 993, 55 Envt Rep Cas 1886).

Twelve factors must be considered in determination of reasonable attorneys fees to be awarded under 16 USCS § 1540(g)(4); those criteria are: (1) time and labor required; (2) novelty and difficulty of questions involved; (3) skill requisite to perform legal service properly; (4) preclusion of other employment by attorney due to acceptance of case; (5) customary fees; (6) whether fee is fixed or contingent; (7) time limitations imposed by client or circumstances; (8) amount involved and results obtained; (9) experience, reputation and ability of attorney; (10) "undesirability" of case; (11) nature and length of professional relationship with client; and (12) awards in similar cases; failure to consider these factors in making award of reasonable attorneys' fees constitutes abuse of discretion. Palila (Psittirostra Bailleui) v Hawaii Dep't of Land & Natural Resources (1981, DC Hawaii) 512 F Supp 1006, 16 Envt Rep Cas 1309.

Starting point for determining reasonable fee award is to multiply number of hours reasonably expended on litigation by reasonable hourly rate of compensation and in arriving at this court should be guided by time and labor required, novelty and difficulty of questions involved, skill required to perform legal service properly, preclusion of other employment by attorney due to acceptance of case, customary fee, whether fee is fixed or contingent, time limitations imposed by client or circumstances, amount involved in results obtained, experience, reputation, and ability of attorneys, undesirability of case, nature and length of professional relationship with client, and awards in similar cases. Palila v Hawaii Dep't of Land & Natural Resources (1987, DC Hawaii) 118 FRD 125.

When there has been no judicial determination on merits of action under 16 USCS § 1540(g)(4), plaintiff who brought action may be considered prevailing party for possible award of attorney's fees if can be shown that: (1) lawsuit is causally linked to securing relief obtained, and (2) defendant's conduct in response to lawsuit was required by law. Southwest Ctr. for Biological Diversity v Babbitt (2000, DC NM) 108 F Supp 2d 1209.

Where sportsmen prevailed in their action under Endangered Species Act challenging non-discretionary act by National Marine Fisheries Service, they were entitled to all reasonable attorneys' fees and costs pursuant to 16 USCS § 1540(g)(4). Fed'n of Fly Fishers v Daley (2002, ND Cal) 200 F Supp 2d 1181.

Non-profit corporations were entitled to attorneys' fees and interest in their action against logging companies where injunction was entered preventing logging companies from logging in area of old growth redwood forest and restraining order established application of § 7(d) of Endangered Species Act, 16 USCS § 1536(d), to private incidental take permit applications as well as clarification that § 7(d) was triggered by informal consultation. Envtl. Prot. Info. Ctr. v Pac. Lumber Co. (2002, ND Cal) 229 F Supp 2d 993, 55 Envt Rep Cas 1886, affd (2004, CA9 Cal) 103 Fed Appx 627.

While plaintiffs' litigation substantially contributed to change in substance of defendants' conduct fairly within purview of Endangered Species Act, amount of time and effort claimed to achieve result was deemed excessive; therefore, plaintiffs were awarded 20 percent of attorneys' fees requested. Conservation Law Found., Inc. v Evans (2003, DC Mass) 56 Envt Rep Cas 1757.

Pursuant to 16 USCS § 1540(g)(4), interest group representing landowners was denied attorney's fees, even though it arguably played role in Secretary of Interior's decision to reconsider certain "not prudent" determinations regarding critical habitat for certain plant species, where its arguments were made in substantially same way by Secretary and did not lead court to novel or markedly different interpretation or implementation of Endangered Species Act than it would have reached in their absence; thus, case did not warrant departure from traditional rule of each party bearing its own expenses. Bldg. Indus. Legal Def. Found. v Norton (2003, SD Cal) 259 F Supp 2d 1081, 56 Envt Rep Cas 1782.

26.--Particular circumstances

Award of attorney fees to conservation foundation, under "whenever appropriate" standard of Endangered Species Act (ESA), 16 USCS § 1540, was not appropriate, where court granted preliminary injunction and awarded fees on claim under Outer Continental Shelf Lands Act (43 USCS §§ 1331 et seq.), but did not reach claim under ESA, which required different proof and provided for different remedies. Conservation Law Foundation, Inc. v Secretary of Interior (1986, CA1 Mass) 790 F2d 965, 24 Envt Rep Cas 1731, 16 ELR 20722.

Endangered Species Act, 16 USCS §§ 1531-1544, claim that developer's activities and planned project would harass bald eagles by disrupting their normal behavioral patterns became moot when bald eagle was delisted from endangered species list while case was on appeal; although judgment was vacated, award of attorney fees to organizations which brought citizen suit was allowed. Ctr. for Biological Diversity v Marina Point Dev. Co. (2009, CA9 Cal) 560 F3d 903.

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.

Several parties, including town and wildlife federation, who unsuccessfully challenged decision of Secretary to conduct lease sale on outer continental shelf, are not entitled to attorney fees under either 16 USCS § 1540(g)(4) or 43 USCS § 1349(a)(5) since issues raised in lawsuit lacked required importance, novelty, and complexity, and suit helped little in interpretation and implementation of federal statutes. Kaktovik v Watt (1982, App DC) 223 US App DC 39, 689 F2d 222, 17 Envt Rep Cas 2097, 12 ELR 21103.

Request for attorney's fees is denied where over one year has passed since affirmance of District Court's opinion and no reason has been given for delay in seeking such fees, and where, aside from issue of timeliness, case is not in which award of fees is "appropriate" as that term is understood in 16 USCS § 1540(g)(4). Hill v Tennessee Valley Authority (1979, ED Tenn) 84 FRD 226, 29 FR Serv 2d 691.

Survival of endangered species, bowhead whale, and preservation of North Slope environment are concerns directly addressed in Outer Continental Shelf Land Act (43 USCS §§ 1331 et seq.) and Endangered Species Act (16 USCS §§ 1531 et seq.), and as case seeking their preservation presents novel, complex, and manifestly unclear questions concerning interrelationships between ESA and OCSLA based on well-founded, not frivolous, allegations, award of attorneys' fees is clearly in public interest. North Slope Borough v Andrus (1981, DC Dist Col) 507 F Supp 106, 15 Envt Rep Cas 1793, 11 ELR 20293.

Conservation Foundation is entitled to $ 92,247 award of attorney fees under 16 USCS § 1540 and 43 USCS § 1349 where foundation assisted state in successful claim under Outer Continental Shelf Lands Act (42 USCS § 1349) and Endangered Species Act (16 USCS § 1540) that govern leasing activity, even though Foundation could not allege violations of OCSLA on its own behalf, because Foundation's efforts were necessary and important factor in achieving successful result; Foundation is not entitled under "lodestar" approach to recover for hours spent for duplicative consultative or supervisory work but is entitled to award adjustment of 10 percent for rendering services that were superior in every respect. Conservation Law Foundation, Inc. v Watt (1984, DC Mass) 654 F Supp 706.

Successful challengers of pesticide registration are entitled to attorney's fees under 16 USCS § 1540(g)(4), where (1) they prevailed on several issues and (2) government's position was not substantially justified; award is reduced by 15 percent based on efforts not related to successful claims. Defenders of Wildlife v Administrator, Environmental Protection Agency (1988, DC Minn) 700 F Supp 1028, 19 ELR 20611.

Animal rights groups are not entitled to recover attorney's fees or costs under 16 USCS § 1540(g)(4), where court never granted groups leave to intervene prior to dropping of suit by original plaintiffs, even though court granted motions after dismissal of case "for sole purpose of allowing intervenors to demonstrate their entitlement to attorneys' fees and costs," because groups were never "parties" to case when it was litigated and are not covered by fee-shifting provision. Putting People First v Babbitt (1993, DC Dist Col) 838 F Supp 10, 24 ELR 20657.

Fees will not be awarded environmental group which sued Interior officials, where officials were working on recovery plan for Bradshaw's Desert Parsley one year prior to lawsuit and had final recovery plan approved about 14 months after litigation began, because group failed to show sufficient causal connection between their lawsuit and publication of recovery plan. Oregon Natural Resource Council v Turner (1994, DC Or) 863 F Supp 1277, 25 ELR 20380.

Award of attorney fees to environmental group was appropriate where plaintiff's success substantially contributed to goals of Endangered Species Act by ensuring conservation of one of few remaining marbled murrelet nesting habitats in state by undertaking unpopular case, and where plaintiff served public interest by assisting interpretation and implementation of ESA as applied to scope of activities that private landowner may engage in on his own land. Marbled Murrelet v Pacific Lumber Co. (1995, ND Cal) 163 FRD 308, 41 Envt Rep Cas 1157.

Plaintiffs in citizen suit under 16 USCS § 1540(g) to compel ruling on their listing petition were not prevailing parties entitled to attorney's fees, where agency action on plaintiffs' listing petition would have been made, pursuant to listing priority guidelines issued in response to congressional funding moratorium, with or without plaintiffs' lawsuit. Biodiversity Legal Found. v Babbitt (1999, DC Colo) 119 F Supp 2d 1129.

Award of attorney's fees and costs under 16 USCS § 1540(g)(4) to plaintiffs who brought action against Department of Interior under Endangered Species Act furthered purposes of Act, even though Department complied with Act prior to outcome of litigation, as denial of fees would encourage Department to attempt to avoid paying fees by delaying litigation until it became moot. Klamath Siskiyou Wildlands Ctr. v Babbitt (2000, DC Or) 105 F Supp 2d 1132, 30 ELR 20767.

Environmental groups were entitled to recover attorney's fees under 16 USCS § 1540(g), where groups' action was substantial catalytic factor in securing Army Corps of Engineers' commitment to reinitiate consultation for 2 of 3 endangered fish species and for Corps' adoption of appropriate environmental baselines for species, and though there was no judicial decision in groups' favor, Corps originally had resisted consultation with Fish and Wildlife Service, but finally responded to groups' settlement request inquiries by agreeing to include all 3 species and to follow schedule proposed by groups. Southwest Ctr. for Biological Diversity v Carroll (2001, CD Cal) 182 F Supp 2d 944.

National Resources Defense Counsel (NRDC) was not awarded attorney fees pursuant to 16 USCS § 1540(g)(4), statutory fee-shifting provision of Endangered Species Act, in its action against Department of Interior and Fish and Wildlife Service to list Beluga Sturgeon as endangered species because NRDC failed to satisfy one threshold of catalyst test. NRDC v Norton (2003, SD NY) 57 Envt Rep Cas 1457.

Where plaintiffs had successfully established that there was causal relationship between litigation brought and practical outcomes and that there was legal basis for claim under Endangered Species Act, plaintiffs were entitled to attorney's fees and costs with some modifications on amounts requested. Vieques Conservation & Historical Trust, Inc. v Martinez (2004, DC Puerto Rico) 313 F Supp 2d 40, 58 Envt Rep Cas 1923.

Supreme Court's decision in Buckhannon does not prohibit use of catalyst test as basis for awarding attorney's fees and costs under "whenever appropriate" fee-shifting provision of Endangered Species Act. Vieques Conservation & Historical Trust, Inc. v Martinez (2004, DC Puerto Rico) 313 F Supp 2d 40, 58 Envt Rep Cas 1923.

Environmental groups were not entitled to attorney fees under 16 USCS § 1540(g)(4), in their action seeking to compel United States Fish and Wildlife Service to list California spotted owl as endangered and threatened species under 16 USCS § 1533; groups failed to realize goals of their lawsuit, and their success in obtaining timely consideration of subsequent listing petition could not be characterized as partial success for purposes of catalyst doctrine of fee shifting. Ctr. for Biological Diversity v Scarlett (2006, ND Cal) 452 F Supp 2d 966.

In case arising under 16 USCS § 1540(g)(1)(C), conservation groups' request for attorneys' fees and costs in amount of $ 114.883.18 was reduced to $ 107, 722.63 because, while they were entitled to compensation for work their attorneys performed on all counts of amended complaint, they did not show that district court should depart from standard Laffey Matrix based on complexity of case; while conservation groups had rejected § 40,000 Fed. R. Civ. P. 68 offer of judgment made by Secretary of U.S. Department of Interior and Director of U.S. Fish and Wildlife Service, they were still entitled to court's award of attorneys' fees and costs since they were entitled to attorneys' fees and costs far in excess of $ 40,000 offer of judgment. Am. Lands Alliance v Norton (2007, DC Dist Col) 525 F Supp 2d 135, 66 Envt Rep Cas 1706.

Unpublished Opinions

Unpublished: Watershed committee's lawsuit contributed to ranchers' agreement to install head gate and fish screen and because ranchers were required by law to install head gate and fish screen, their doing so was not gratuitous act; as result, award of attorney's fees in favor of committee under Endangered Species Act (ESA), was appropriate. Idaho Watersheds Project v Jones (2007, CA9 Idaho) 253 Fed Appx 684.

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*** CURRENT THROUGH PL 112-14, APPROVED 5/26/2011 ***
TITLE 16. CONSERVATION

CHAPTER 35. ENDANGERED SPECIES

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16 USCS § 1541
§ 1541. Endangered plants
The Secretary of the Smithsonian Institution, in conjunction with other affected agencies, is authorized and directed to review (1) species of plants which are now or may become endangered or threatened and (2) methods of adequately conserving such species, and to report to Congress, within one year after the date of the enactment of this Act [enacted Dec. 28, 1973], the results of such review including recommendations for new legislation or the amendment of existing legislation.
HISTORY:

(Dec. 28, 1973, P.L. 93-205, § 12, 87 Stat. 901.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

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.
NOTES:
Research Guide:

Law Review Articles:

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.

13 of 15 DOCUMENTS
UNITED STATES CODE SERVICE

Copyright © 2011 Matthew Bender & Company,Inc.

a member of the LexisNexis Group (TM)

All rights reserved.

*** CURRENT THROUGH PL 112-14, APPROVED 5/26/2011 ***
TITLE 16. CONSERVATION

CHAPTER 35. ENDANGERED SPECIES

Go to the United States Code Service Archive Directory
16 USCS § 1542