1 of 15 documents united states code service

Unpublished Opinions

Unpublished: Fish and Wildlife Service's (FWS) decision not to designate Southwestern Washington/Columbia River Distinct Population Segment (DPS) of coastal cutthroat trout as threatened under 16 USCS § 1533 was arbitrary under 5 USCS § 706(2)(A) to extent that FWS failed to consider at all whether marine, estuary, and near-shore ocean areas of this DPS constituted significant portion of its range; because FWS's own reasoning recognized danger to estuary and marine areas and importance of those areas, FWS was required to consider whether those areas constituted significant portion of range. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2008, CA9 Or) 274 Fed Appx 542.

8.----Mammals

Agency, without reopening comment period, could use supplementary data, unavailable during notice and comment period, that expanded on and confirmed information contained in proposed rulemaking and addressed alleged deficiencies in pre-existing data, so long as no prejudice was shown; because post-comment information was only important, not critical, to United States Fish and Wildlife Service's (FWS) decision not to list Buena Vista Shrew as endangered subspecies, and given deference owed to agencies in making such scientifically-based decisions, district court's judgment that no serious or substantial reason existed to negate listing and provide for new comment period was affirmed. Kern County Farm Bureau v Allen (2006, CA9 Cal) 450 F3d 1072, 62 Envt Rep Cas 1865, 36 ELR 20117.

United States Fish and Wildlife Service had articulated reasonable basis--Washington western gray squirrel population's lack of biologically and ecologically distinguishing features--for its conclusion that loss of population would not cause significant gap and its decision to deny petition to list squirrels as endangered "distinct population segment" under 16 USCS § 1533 was not arbitrary or capricious. Northwest Ecosystem Alliance v United States Fish & Wildlife Serv. (2007, CA9 Or) 475 F3d 1136, 63 Envt Rep Cas 1993.

Environmental groups' challenge to decision of Fish and Wildlife Service (FWS) not to reclassify grizzly bear population within particular ecosystem from "threatened" to "endangered" is granted summarily, where FWS concluded that human-caused mortality of bears is decreasing, because conclusion is not supported by record since (1) studies upon which FWS relied provide no support for predicting any trend regarding human-caused mortality, and (2) FWS should have been aware of, but ignored, evidence showing that human-caused mortalities had increased in 1992. Carlton v Babbitt (1995, DC Dist Col) 900 F Supp 526, 42 Envt Rep Cas 1083, 26 ELR 20396.

Fish and Wildlife Service could not rely on possibility that future revisions of Service's national forest and wildlife management plan would ensure survival of threatened wolf species, so as to deny environmental group's petition to list wolf as threatened or endangered species, where environmental group's petition was supported by Service's acknowledgment that long- term survival of wolf was threatened under current plan, and threatened destruction of wolf's habitat supported listing of species as threatened or endangered, because determination not to list species was not made solely on basis of best scientific and commercial data as required by 16 USCS § 1533. Biodiversity Legal Found. v Babbitt (1996, DC Dist Col) 943 F Supp 23, 44 Envt Rep Cas 1573, 27 ELR 20462.

U.S. Fish and Wildlife Service decision not to list Canada Lynx and grant it protections of Endangered Species Act (16 USCS §§ 1531 et seq.) is arbitrary and capricious and must be set aside, where exhaustive, 50-page study of Region 6 biologists contains detailed analysis and concludes that at least 4 of 5 factors require listing of Lynx, while Service's cursory, 5-page decision merely states category heading and then ignores evidence and analysis of its experts, because decision applied incorrect legal standard, relied on glaringly faulty factual premises, and ignored views of its own experts. Defenders of Wildlife v Babbitt (1997, DC Dist Col) 958 F Supp 670, 44 Envt Rep Cas 1970, 27 ELR 21113.

Administrative decision not to list Cook Inlet Beluga Whale as "endangered" or "threatened" under 16 USCS § 1533(a)(1) was not arbitrary, capricious, or abuse of discretion, where agency concluded that over utilization did not support Endangered Species Act listing because it had been stopped by "depleted" designation under 16 USCS § 1362, agency adequately explained its decision to depart from recommendation of International Union for Conservation of Nature and Natural Resources, and listing decision was not impermissibly affected by political considerations. Cook Inlet Beluga Whale v Daley (2001, DC Dist Col) 156 F Supp 2d 16.

Secretary of Interior erred by failing to apply down listing factors outside gray wolf's core areas, but reduced wolf's status from endangered to threatened in some regions nonetheless, and therefore Secretary's final rule was vacated; entire Eastern and Western distinct population segments were down listed without analyzing threats to wolf outside of core areas, as required by 16 USCS § 1533(a)(1); enjoining final rule was necessary because 16 USCS § 1533(d) permitted lethal and non-lethal harm to gray wolf. Defenders of Wildlife v Sec'y, United States DOI (2005, DC Or) 354 F Supp 2d 1156, 35 ELR 20033.

Final rule to reclassify and remove gray wolf from list of endangered and threatened wildlife in portions of conterminous U.S. issued by Fish and Wildlife Service made all other portions of wolf's historical or current range outside of core gray wolf populations insignificant and unworthy of stringent protection; Secretary of Department of Interior's conclusion that gray wolf was not at risk in significant portion of its range was contrary to plain meaning of Endangered Species Act (ESA), 16 USCS §§ 1531-1544, phrase "significant portion of its range," and therefore, was arbitrary and capricious application of ESA. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).

Where Asian elephants were listed as endangered under 16 USCS § 1533, circus owner's Asian elephants were not exempt from taking prohibition of 16 USCS § 1538, as defined by 16 USCS § 1532(19), because exemption was unambiguously applicable to other provisions; thus, disputed facts existed, precluding summary judgment, as to whether owner's treatment of elephants not subject to captive-bred wildlife permit constituted taking under Endangered Species Act. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas 1243.

U.S. Fish and Wildlife Service did not violate Administrative Procedure Act, 5 USCS § 706, of when it reexamined its decision not to list Florida black bear as threatened or endangered under 16 USCS Endangered Species Act, §§ 1532 and 1533, because, on remand, agency was required to consider regulations and data available when decision was first made rather than later data; decision was not arbitrary or capricious where agency relied on best available scientific and commercial data available at time decision was first made and it was not necessary to analyze extent of habitat loss on private lands. Defenders of Wildlife v Kempthorne (2008, DC Dist Col) 535 F Supp 2d 121.

Canada lynx's status as threatened as opposed to endangered species did not take it outside prohibitions against taking in 16 USCS § 1538(a)(1)(B); no special rule pursuant to 16 USCS § 1533(d) was applicable. 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.

9.----Reptiles and amphibians

Despite absence of total agreement within scientific community, Secretary of Interior did not act arbitrarily and capriciously when he listed Alabama red-bellied turtle as endangered species, given scientific support from numerous herpetologists, where Secretary considered that turtle's status as separate species had been questioned in past. United States v Guthrie (1995, CA11 Ala) 50 F3d 936, 25 ELR 21097, 9 FLW Fed C 3.

Summary judgment was improperly granted for Secretary of Interior and Director of U.S. Fish and Wildlife Service (FWS) because other proposals leading to their "warranted but precluded" finding under Endangered Species Act, 16 USCS §§ 1531 et seq., regarding endangered frog were not published, along with finding that expeditious progress was being made to list qualified species, as was required by 16 USCS § 1533(b)(3)(B)(iii); further, FWS' finding could not be supported by statements that were made in Candidate Notice of Review publications because they were not published together with finding; thus, its finding was arbitrary and capricious as was contemplated under 5 USCS § 706(2)(A). Ctr. for Biological Diversity v Kempthorne (2006, CA9 Cal) 466 F3d 1098, 36 ELR 20212.

District court erred in granting summary judgment in favor of Secretary of Interior in action by conservation organizations that challenged Secretary's decision to withdraw rule proposing that flat-tailed horned lizard be listed as threatened species under Endangered Species Act (ESA), 16 USCS §§ 1532(20), and 1533; decision was arbitrary and capricious under 5 USCS § 706(2)(A) because Secretary improperly assessed significance of lizard's lost range based on unsupported finding that lizard populations persisted throughout most of species' current range. Tucson Herpetological Soc'y v Salazar (2009, CA9 Ariz) 566 F3d 870, 68 Envt Rep Cas 2131, 39 ELR 20107.

Secretary of Interior violated 16 USCS § 1533(b)(3)(A) when he failed to make initial finding on petition to list rare salamander as endangered within 90 days of receiving petition, when he failed to determine whether listing was warranted within 12 months of his initial finding, and when he missed nondiscretionary 12-month deadline to either list species, withdraw proposed listing, or extend period for consideration by 6 additional months. Save Our Springs v Babbitt (1997, WD Tex) 27 F Supp 2d 739, subsequent app (1997, CA5 Tex) 115 F3d 346, 38 FR Serv 3d 423, 27 ELR 21152.

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; FWS did not act arbitrarily and capriciously under 5 USCS § 706(2)(A) when it discounted results of population study as not being best available scientific data for purposes of 16 USCS § 1533(b) because FWS found that methodology of study was flawed to point of not being reliable, and it backed up its conclusion with reasoned evaluation of study and its own estimates. 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.

U.S. 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.

10.----Other particular species

In case of Fish and Wildlife's decision to list 4 different species of "fairy shrimp" as endangered, district court's certification of listing under Civil Procedure Rule 54 was inadequate where it provided no reason for its certification. Building Indus. Ass'n v Babbitt (1998, App DC) 333 US App DC 190, 161 F3d 740, 47 Envt Rep Cas 1701, 42 FR Serv 3d 114, 29 ELR 20328.

Secretary of Interior could be required to issue 12-month finding regarding checkerspot butterfly within 30 days of order requiring issuance of finding, rather than after beginning of next fiscal year, where Secretary needed to supplement already drafted proposed 12-month finding with new information on butterfly and its habitat and to review 12-month finding, and consideration of Secretary's budget crisis caused by judicially imposed deadlines in other cases was forbidden in determining how quickly Secretary could fill requirements of 16 USCS § 1533(b)(3)(B). Ctr. for Biological Diversity v Norton (2001, DC NM) 163 F Supp 2d 1297, 53 Envt Rep Cas 1637.

Where U.S. Fish and Wildlife Service (FWS) issued incidental take permit (ITP) pursuant to 16 USCS § 1539(a)(1)(B) to city, subject to condition, after it entered into contract (IA) with city to complete proposed project, argument waged by intervening builders that language in IA bound FWS to allow take of vernal pool species failed because ITP, not IA, defined extent of authorized take; protections of Endangered Species Act applied only to those species that were officially listed as either threatened or endangered, pursuant to 16 USCS § 1533, and language in IA regarding "covered species subject to incidental take" was meant to identify those species that were adequately conserved that would receive assurances as defined in ITP; moreover, contract interpretation rules did not demand different result because parties' intentions or expectations were not issue, and there was nothing remotely unfair or arbitrary about requirement in ITP that any disturbance of vernal pool that equated with filling its basis would also require Clean Water Act permit from U.S. Army Corps of Engineers. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070, injunction gr, summary judgment gr, in part, summary judgment den, in part on other grounds, remanded (2006, SD Cal) 470 F Supp 2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011 US App LEXIS 950.

11.--Designation of critical habitat

Public participation following notice of proposed habitat designation may provide agencies with valuable information as they prepare to render final decision; however, this participation is not benefit resulting from designation, but rather, is component of decision making process. Sierra Club v United States Fish & Wildlife Serv. (2001, CA5 La) 245 F3d 434, 52 Envt Rep Cas 1464, 31 ELR 20504.

Congress intended that Fish and Wildlife Service conduct full analysis of all of economic impacts of critical habitat designation, regardless of whether those impacts are attributable coextensively to other causes; thus, baseline approach to economic analysis (which utilizes "but for" method for determining what economic impacts flow from critical habitat designation) is not in accord with language or intent of Endangered Species Act. N.M. Cattle Growers Ass'n v United States Fish & Wildlife Serv. (2001, CA10 NM) 248 F3d 1277, 52 Envt Rep Cas 1500, 2001 Colo J C A R 2443, 31 ELR 20614 (criticized in Cape Hatteras Access Pres. Alliance v United States DOI (2004, DC Dist Col) 344 F Supp 2d 108, 59 Envt Rep Cas 1686, 34 ELR 20136) and (criticized in Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115) and (questioned in criticized in Ariz. Cattle Growers' Ass'n v Kempthorne (2008, DC Ariz) 534 F Supp 2d 1013) and (criticized in Fisher v Salazar (2009, ND Fla) 656 F Supp 2d 1357) and (criticized in Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154).

Statute does not expressly require notice for remaining two available actions in § 1533(b)(6)(A)(i), including finding that revision should not be made; indeed, § 1533(b)(6)(A)(i)(II) directs U.S. Fish & Wildlife Service to issue final regulation to implement finding that revision or designation, will not be made, and Congress did not intend to require notice when Service takes one of these two actions. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2006, CA9 Cal) 450 F3d 930, 62 Envt Rep Cas 1873, 36 ELR 20102.

Endangered Species Act of 1973 does not provide procedural right to have critical habitat proposal issued at same time as listing proposal, or to have habitat proposed before time runs out for commenting about listing. Alabama-Tombigbee Rivers Coalition v Kempthorne (2007, CA11 Ala) 477 F3d 1250, 63 Envt Rep Cas 2098, 37 ELR 20040, 20 FLW Fed C 293, cert den (2008) 552 US 1097, 128 S Ct 877, 169 L Ed 2d 725, 66 Envt Rep Cas 1416.

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.

Discretionary procedures performed by Fish and Wildlife Service cannot justify deviation from statutory mandate of 16 USCS § 1533 for concurrent designation of critical habitat when species is designated as threatened or endangered. Butte Envtl. Council v White (2001, ED Cal) 145 F Supp 2d 1180.

U.S. Fish and Wildlife Service must proceed to designate critical habitat for endangered and threatened species in Tennessee, and court reluctantly accepts Service's proposed schedule for doing so, even though Service also argues this suit is time-barred under 28 USCS § 2401(a) 6-year statute of limitations, where species were listed as endangered or threatened on March 17, 1993 but environmental group did not file suit until October 12, 2000, because 16 USCS § 1533(b)(6)(C) mandates designation of critical habitat within one year of listing, and Service's non-action did not trigger running of limitations period but rather constitutes continuing violation of § 1533. Southern Appalachian Biodiversity Proj. v United States Fish & Wildlife Serv. (2001, ED Tenn) 181 F Supp 2d 883, 54 Envt Rep Cas 1733 (criticized in Ctr. for Biological Diversity v Hamilton (2005, ND Ga) 385 F Supp 2d 1330) and (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).

Fish and Wildlife Service moved to vacate and remand critical habitat designations in light of Tenth Circuit's decision in New Mexico Cattle Growers Ass'n., which required that economic impacts be fully considered at time of critical habitat designation. Bldg. Indus. Legal Def. Found. v Norton (2002, DC Dist Col) 231 F Supp 2d 100, 55 Envt Rep Cas 1730, 33 ELR 20110.

District court found that environmental impact statement and biological opinion that were prepared before Secretary of Interior made her decision to make entire Northwest Petroleum Reserve in Alaska available for oil and gas leasing considered other reasonable alternatives and were not flawed; court denied environmental center's request for judgment declaring that agents and officials of federal government violated National Environmental Policy Act, 42 USCS §§ 4321-4370f, Administrative Procedure Act, 5 USCS § 706, and Endangered Species Act, 16 USCS §§ 1531-1544, when they prepared integrated activity plan/environmental impact statement and biological opinion that Secretary used to make her decision. N. Alaska Envtl. Ctr. v Norton (2005, DC Alaska) 361 F Supp 2d 1069, subsequent app (2006, CA9 Alaska) 457 F3d 969, 62 Envt Rep Cas 2001, 36 ELR 20141.

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 action in which environmental organizations filed suit against defendants, Bureau of Land Management and U.S. Fish and Wildlife Service, alleging violations of Endangered Species Act (ESA), NEPA, Federal Land Policy and Management Act of 1976, and APA, it was arbitrary and capricious for Service to rely on critical assumption that lacked support in record to justify excluding significant portions of critical habitat; moreover, in relying on unsubstantiated assumption that was critical to its exclusion decision, Service did not rely on "best scientific and commercial data available" as required by ESA. Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115, judgment entered (2006, ND Cal) 2006 US Dist LEXIS 73668.

In action in which environmental organizations filed suit against defendants, Bureau of Land Management and U.S. Fish and Wildlife Service, alleging violations of Endangered Species Act, NEPA, Federal Land Policy and Management Act of 1976, and APA, because record indicated that only very small amount of non-off-highway vehicle (OHV) recreation had historically occurred in areas closed to OHV use, Service did not abuse its discretion in concluding that any increase in non-OHV recreation that might result from future closure would be insignificant. Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115, judgment entered (2006, ND Cal) 2006 US Dist LEXIS 73668.

Because Secretary of Department of Interior is unequivocally required to designate critical habitat unless doing so would not be prudent, Secretary's duty under law continues until final regulation is published, thus, even if plaintiff's right of action was to have accrued when deadline passed and statute of limitations expired in six years under 28 USCS § 2401, Secretary's violation is ongoing and does not constitute discrete one-time violation with lingering effects or consequences; continuing violation doctrine applies to such instances. Schoeffler v Kempthorne (2007, WD La) 493 F Supp 2d 805 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).

Group's claim that United States Fish and Wildlife Service (FWS), Secretary of Interior, and FWS Director violated 16 USCS § 1533(b)(3)(B) by failing to make 12-month finding on group's January 2008 petition had to be dismissed because when bringing action pursuant to citizen suit provisions of Endangered Species Act, 16 USCS §§ 1533 et seq., no plaintiff may commence action without giving Secretary 60-days prior written notice of its intent to sue, 16 USCS § 1540(g)(2), and group failed to provide 60-days' notice prior to bringing its claims with respect to 12-month finding; moreover, group's request for leave to amend complaint was denied because allowing group leave to amend its complaint after commencing action without proper notice would undermine Fed. R. Civ. P. 3 and render notice requirement meaningless. Friends of Animals v Salazar (2009, DC Dist Col) 670 F Supp 2d 7.

12.----Birds

Economic analysis employed by U.S. Fish and Wildlife Services (FWS) in designating critical habitat of Mexican Spotted Owl was not arbitrary and capricious; baseline approach that FWS used was, if anything, more logical than co-extensive approach, and it reflected purpose set forth in 16 USCS § 1533(b)(2) to determine benefits of excluding or including area in critical habitat designation; economic analysis of critical habitat designation was exactly what it sounded like and was not intended to incorporate burdens imposed by listing species. 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.

Fish and Wildlife Service's failure to designate critical habitat for northern spotted owl when it was listed as threatened species was improper under 16 USCS § 1533, where service failed to indicate either why habitat was "indeterminable" or what efforts had been made to determine habitat, because Service abused its discretion in making "indeterminable" finding. Northern Spotted Owl v Lujan (1991, WD Wash) 758 F Supp 621, 33 Envt Rep Cas 1113, 21 ELR 20914.

Failure of Fish and Wildlife Service to comply with requirement of 16 USCS § 1533(a)(3)(D)(ii) that it rule on petition for revision of critical habitat within 12 months constituted "final agency action" subject to review under 5 USCS § 706, and, thus, Service was required to produce administrative record compiled with regard to critical habitat designation of Cape Sable seaside sparrow. Biodiversity Legal Found. v Norton (2001, DC Dist Col) 180 F Supp 2d 7.

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.

Regardless of budgetary constraints, Secretary of Interior was ordered to comply with deadlines set by court regarding designation of critical habitat for Mexican spotted owl as required by 16 USCS § 1533(a)(3), part of Endangered Species Act, and Secretary's motion for relief under Fed. R. Civ. P. 60(b), which sought to modify court's compliance order, was denied. Ctr. for Biological Diversity v Norton (2003, DC Ariz) 304 F Supp 2d 1174.

13.----Fish

District court acted properly in granting company and U.S.' motion for summary judgment where it was determined that based on plain language of Endangered Species Act and its amendments, Congress conferred discretion on Fish & Wildlife Service to choose whether to designate critical habitat for endangered species listed before 1982, including unarmored threespine stickleback. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2006, CA9 Cal) 450 F3d 930, 62 Envt Rep Cas 1873, 36 ELR 20102.

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).

Although Fish and Wildlife Service violated 16 USCS § 1533(a)(3)(A) and (a)(b)(C)(ii) by failing to designate critical habitat of Alabama sturgeon within two years of listing species as endangered, appeals court refused to impose remedy of de-listing species because it would have frustrated Congress' intent to preserve wildlife. Alabama-Tombigbee Rivers Coalition v Kempthorne (2007, CA11 Ala) 477 F3d 1250, 63 Envt Rep Cas 2098, 37 ELR 20040, 20 FLW Fed C 293, cert den (2008) 552 US 1097, 128 S Ct 877, 169 L Ed 2d 725, 66 Envt Rep Cas 1416.

Non-profit environmental organizations that sued governmental officials for their failure to designate critical habitat for two endangered minnow species did not establish continuing violation that enabled them to file suit after statute of limitations expired; Endangered Species Act afforded officials no additional time beyond April 22, 1993 to designate critical habitat for minnows and imposed no continuing duty on officials regarding such designation; continuing violation doctrine does not save time-barred violations that cause continuing or lingering harm, and plaintiffs had remedy under 16 USCS § 1532(5) under existing conditions. Ctr. for Biological Diversity v Hamilton (2005, ND Ga) 385 F Supp 2d 1330.

Biological opinion (BiOp) of United States National Marine Fisheries Service (NMFS) regarding spring-run Chinook was incomplete, contradictory, and violated Endangered Species Act and Administrative Procedures Act because it had (1) failed to define and consider effects on spring-run critical habitat as required by 16 USCS § 1533, important aspect of no jeopardy 16 USCS § 1536 BiOp; (2) failed to explain why no jeopardy findings are contradicted by record evidence developed by agency; and (3) failed to adequately analyze recovery of spring-run. Pac. Coast Fed'n of Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US Dist LEXIS 31462, amd on other grounds, summary judgment gr, in part, summary judgment den, in part on other grounds (2008, ED Cal) 67 Envt Rep Cas 1674, amd on other grounds, summary judgment gr, in part, summary judgment den, in part on other grounds (2008, ED Cal) 606 F Supp 2d 1122, findings of fact/conclusions of law, request den (2008, ED Cal) 606 F Supp 2d 1195, 68 Envt Rep Cas 1234.

14.----Mammals

Defendants, Secretary of Interior and U.S. Fish and Wildlife Service, violated 16 USCS § 1533(b)(6)(C) by failing to designate critical habitat for lynx within one year of final decision that lynx was threatened species; it was appropriate to enjoin defendants to do so because they had asserted that it would be at least four years before lynx critical habitat would be designated; six and one-half year delay in designating critical habitat was completely counter to mandate of 16 USCS § 1531(b). Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89 Fed Appx 273.

Under Endangered Species Act, 16 USCS §§ 1533 et seq., and National Environmental Policy Act, 42 USCS §§ 4321 et seq., federal agencies were able to make road management decisions based on study of grizzly bears, despite fact that they ignored question of whether there was minimum useful core habitat size for study, because study was best available information even though it was not best conceivable scientific information. Cabinet Res. Group v United States Fish & Wildlife Serv. (2006, DC Mont) 465 F Supp 2d 1067.

Because defendant Secretary of Department of Interior proposed Louisiana Black Bear's critical habitat several times for decade without ever making final habitat listing or "not prudent" determination, his only two options under 16 USCS § 1533, plaintiff environmentalist's suit to compel action was not time barred by 28 USCS § 2401(a)'s six year limitations period. Schoeffler v Kempthorne (2007, WD La) 493 F Supp 2d 805 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).

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 under 16 USCS § 1536(a)(2) 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.

15.----Plants

In connection with proposed construction of deep draft harbor for commercial and industrial use, Secretary did not violate 16 USCS § 1533 by failing to designate critical habitat for species of plant found in area near proposed location for harbor, subsequent to plant's listing as endangered species, since Secretary properly determined that plant's critical habitat could not be determined, in that plant had been found in non-native habitat, and biological and physical features essential to its existence could not be known. Enos v Marsh (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep Cas 1124, 15 ELR 20853.

Case concerning 245 endangered or threatened plant species in Hawaii is remanded, where Fish and Wildlife Service (FWS) failed to articulate rational basis for invoking imprudence exception and not designating critical habitats for plants, because, inter alia, FWS failed to compare risk of increased likelihood that vandals would destroy or take remaining plants with benefits that would flow from designation of critical habitats. Conservation Council v Babbitt (1998, DC Hawaii) 2 F Supp 2d 1280 (criticized in Sierra Club v United States Fish & Wildlife Serv. (2001, CA5 La) 245 F3d 434, 52 Envt Rep Cas 1464, 31 ELR 20504).

16.----Other particular species

Because links between species loss and substantial commercial effect were not attenuated under Endangered Species Act (ESA), economic regulatory scheme, taking of Texas cave species were aggregated with other takes, and ESA's take provision was constitutional under Commerce Clause. GDF Realty Invs., Ltd. v Norton (2003, CA5 Tex) 326 F3d 622, 56 Envt Rep Cas 1033, reh den, reh, en banc, den (2004, CA5 Tex) 362 F3d 286, 58 Envt Rep Cas 1187 and cert den (2005) 545 US 1114, 125 S Ct 2898, 162 L Ed 2d 294, 60 Envt Rep Cas 1512.

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 failed to properly account for economic impact of its critical habitat designation, pursuant to 16 USCS § 1533(b)(2); to fulfill that requirement, FWS obtained economic analysis from outside consultant that relied on guidance from Office of Management and Budget to compare current state of affairs--baseline--with how things would look after designation of critical habitat; this approach was consistent with statutory directive to consider economic impact to specifying any particular area as critical habitat--i.e., requirement designed to protect environment, imposed before government took action. 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 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 on basis of what industry groups believed were areas that were designated as critical habitat despite containing no primary constituent elements; yet industry groups, other than complaining that FWS's designation was not sufficiently specific, offered no alternative procedure and pointed to no infirmity in procedure used by FWS except that it might not be perfect; specificity did not require perfection; rather, 16 USCS § 1533(b)(2) required only that FWS designate critical habitat on basis of best scientific data available, and industry groups presented no reason not to defer to FWS on this issue. 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.

Court of appeals affirmed district court's judgment that it lacked jurisdiction under Administrative Procedure Act, 5 USCS §§ 701 et seq., to hear lawsuit that was filed by nonprofit advocacy group that represented individuals and companies in construction industry, challenging protocols that Fish and Wildlife Service issued to provide methodology for detection of quino checkerspot butterfly in certain areas of southern California, because protocols were not binding agency actions. Nat'l Ass'n of Home Builders v Norton (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep Cas 2121, 35 ELR 20143.

Asserted reason for Fish and Wildlife Service's refusal to designate critical habitat for endangered species was unsupported by record, where Service declined to designate critical habitat for fairy shrimp species on basis of fear of vandalism, and although number of incidents of destruction of habitat were documented in administrative record, only one involved vandalism, and in view of strong presumption that critical habitat would be designated concurrently with listing of species, mere fact of habitat destruction did not in itself militate against designating critical habitat. Building Indus. Ass'n v Babbitt (1997, DC Dist Col) 979 F Supp 893, app dismd (1998, App DC) 333 US App DC 190, 161 F3d 740, 47 Envt Rep Cas 1701, 42 FR Serv 3d 114, 29 ELR 20328 and affd (2001, App DC) 345 US App DC 426, 247 F3d 1241, 52 Envt Rep Cas 1257, 31 ELR 20622, cert den, motion gr (2002) 534 US 1108, 151 L Ed 2d 879, 122 S Ct 913, 54 Envt Rep Cas 1544.

Voluntary remand to U.S. Fish and Wildlife Service (USFWS) of its critical habitat designations of two endangered species was proper where court had authority to grant voluntary remand, and designations were arbitrary and capricious under 5 USCS § 706(2) because baseline approach to economic impact analysis under 16 USCS § 1533(b)(2) used by USFWS was invalid. NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.

During voluntary remand to U.S. Fish and Wildlife Service (USFWS) of its critical habitat designations of two endangered species, 16 USCS §§ 1538 and 1539, California Natural Communities Conservation Programs, and special rule under 16 USCS § 1533(d) did not replace consultation for adverse modification under 16 USCS § 1536 by USFWS. NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.

Federal agencies did not show that transfer to California district court of landowners' action, which challenged designation of their California property as critical habitat for San Diego fairy shrimp, was appropriate for convenience or fairness because landowners' choice of forum in District of Columbia (D.C.) was not outweighed by location of property in San Diego County, which was wholly subsumed by Southern District of California, pursuant to 28 USCS § 84(d); rather, nexus between controversy and California, where property and landowners were located, was only marginally stronger than connection between controversy and D.C. because controversy involved issue of federal environmental law under Endangered Species Act, which was subject to judicial review under Administrative Procedure Act, 5 USCS §§ 702 et seq., and was enacted to ensure conservation of endangered and threatened species and their ecosystems; and involved private property that was not accessible by public, and would have no direct or unique impact on San Diego County residents or their water supply. Otay Mesa Prop., L.P. v United States DOI (2008, DC Dist Col) 584 F Supp 2d 122, summary judgment den, summary judgment den, as moot, summary judgment gr (2010, DC Dist Col) 714 F Supp 2d 73.

17.--Permission of hunting

Secretary of Interior did not exceed delegated authority by promulgating regulations permitting limited sport hunting of grizzly bears in specified geographic areas, since Congress, in Endangered Species Act (16 USCS §§ 1531 et seq.), expressly authorized "regulated taking" of threatened species in extraordinary case where population pressures within given ecosystem cannot be otherwise relieved. Christy v Hodel (1988, CA9 Mont) 857 F2d 1324, 18 ELR 21430, cert den (1989) 490 US 1114, 104 L Ed 2d 1038, 109 S Ct 3176.

In organizations' suit against federal entities regarding failure to list Mongolian argali sheep as endangered, and issuance of hundreds of permits for sport hunters to import killed argali, Mongolian agency satisfied requirements for intervention as of right. Fund for Animals, Inc. v Norton (2003, App DC) 355 US App DC 268, 322 F3d 728, 55 Envt Rep Cas 2128, 55 FR Serv 3d 414, costs/fees proceeding, request gr (2003, App DC) 2003 US App LEXIS 18340, motion gr, dismd (2004, App DC) 2004 US App LEXIS 14244 and (criticized in San Juan County v United States (2005, CA10 Utah) 420 F3d 1197, 62 FR Serv 3d 703).

Pursuant to 16 USCS § 1533(b)(1)(A), National Marine Fisheries Service had based its decision to close pelagic longline fishermen's access to fisheries in particular area on best scientific data available where evidence showed that agency had considered and disagreed with conclusions found in critical peer review and decision to base mortality estimates for listed turtle species on mortality rates from ingesting longliner's hooks and from external hooking was not unreasonable. Blue Water Fishermen's Ass'n v Nat'l Marine Fisheries Serv. (2002, DC Mass) 226 F Supp 2d 330.

18. Practice and procedure

Initial determination of whether species is endangered is within Secretary's exclusive authority, and ALJ does not have authority to review this finding. Roosevelt Campobello International Park Com. v United States EPA (1982, CA1) 684 F2d 1041, 17 Envt Rep Cas 2023, 12 ELR 20903.

16 USCS § 1533(b)(3)(B) places limit on discretion provided by 16 USCS § 1533(b)(3)(A), since Congress intended to limit flexible deadline governing initial listing determination by enacting firm deadline for making final determination; thus, both initial finding and final determination must be completed within twelve months of date petition is received. Biodiversity Legal Found. v Badgley (2002, CA9 Or) 284 F3d 1046, 2002 CDOS 2553, 2002 Daily Journal DAR 3129, 54 Envt Rep Cas 1065, 32 ELR 20539, op withdrawn by order of ct on other grounds(2002, CA9 Or) 309 F3d 1166, 33 ELR 20092 and substituted op (2002, CA9 Or) 309 F3d 1166, 2002 CDOS 10902, 2002 Daily Journal DAR 12632.

16 USCS § 1533 (b)(3)(B) imposes firm twelve-month deadline for making final determinations under Endangered Species Act; if final determination must be made within twelve months, only logical conclusion is that initial one must be made within that time as well; Congress intended to limit flexible deadline governing initial listing determination by enacting firm deadline for making final determination; both determinations must be made within one year. Biodiversity Legal Found. v Badgley (2002, CA9 Or) 309 F3d 1166.

Determination by Fish and Wildlife Service to place species on its internal review list, to assign it candidate status, and to thus declare that public petition filed on behalf of species under 16 USCS § 1533(b)(3)(A) was thus "redundant" illegally circumvented notice and hearing requirements set forth in § 1533(b)(3)(B), and precluded judicial review, thus violating notice and hearing requirements of Endangered Species Act, 16 USCS §§ 1531 et seq. 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.

Endangered Species Petition Management Guidance policy that was used by Fish and Wildlife Service (FWS) for determining categorizations of species as threatened or endangered violated notice and comment requirement embodied in 16 USCS § 1533(h), was procedurally flawed, and was facially invalid because it allowed FWS and Secretary of Department of Interior to avoid mandatory, non-discretionary hearing requirements set forth in 16 USCS § 1533(b)(3)(B). 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.

Eleventh Circuit has held that district court should dismiss claims when there has been no final agency action and Supreme Court has held that in order to be final agency action two conditions must be met: (1) action must mark consummation of agency's decision making process and (2) action must be one by which either rights or obligations have been determined or legal consequences will flow; biological opinions rendered by Fish and Wildlife Service pursuant to Endangered Species Act are "final agency action" under Administrative Procedures Act and subject to review. Fla. Marine Contrs. v Williams (2004, MD Fla) 17 FLW Fed D 706, motion gr, summary judgment den, judgment entered (2005, MD Fla) 378 F Supp 2d 1353, 18 FLW Fed D 785.

District court dismissed claims for declaratory relief asserted by various applicants who had sought permits to construct structures on Florida waterways because Fish and Wildlife Service (FWS) had not yet rendered biological opinions with regard to applications, FWS would not take any final action until it rendered opinions, and court did not have jurisdiction to review non-final actions taken by agency; once they were rendered, applicants could file second amended complaint seeking review of biological opinions under Administrative Procedure Act Fla. Marine Contrs. v Williams (2004, MD Fla) 17 FLW Fed D 706, motion gr, summary judgment den, judgment entered (2005, MD Fla) 378 F Supp 2d 1353, 18 FLW Fed D 785.

U.S. Fish & Wildlife Service's (FWS's) 1996 Petition Management Guidance policy, upon which FWS relied in finding no substantial evidence to support allegation in 90-day petition filed by interested persons that cutthroat trout, indigenous to Upper Colorado River basin, was threatened or endangered species, was inconsistent with public notice and comment procedures in 16 USCS § 1533(h) and was facially invalid; thus, FWS's reliance upon that policy in deciding merits of 90-day petition was flawed and not entitled to judicial deference. Colo. River Cutthroat Trout v Kempthorne (2006, DC Dist Col) 448 F Supp 2d 170, 63 Envt Rep Cas 1771.

District court lacked subject matter jurisdiction over landowner's citizen suit, which alleged that National Marine Fisheries Service (NMFS) acted contrary to procedural provisions of 16 USCS § 1533 in violation of 5 USCS § 706 when NMFS declined to review his petition to redefine southern boundary of California Central Coast evolutionarily-significant unit of coho salmon; landowner failed to give 60-day notice required under 16 USCS § 1540(g)(2)(C), and APA could not provide jurisdiction under 5 USCS § 704 because Congress provided another adequate remedy under ESA. McCrary v Gutierrez (2007, ND Cal) 528 F Supp 2d 995.

Environmental group was not required to give U.S. Fish and Wildlife Service (FWS) 60-day notice required by 16 USCS § 1540(g)(2)(C, before bringing suit that challenged FWS's decision to reject petitions to list greater sage-grouse under 16 USCS § 1533; ESA notice requirement did not apply because group's suit was brought under Administrative Procedure Act, 5 USCS §§ 701 et seq., to review discretionary decision of FWS. Western Watersheds Project v United States Forest Serv. (2007, DC Idaho) 535 F Supp 2d 1173, 66 Envt Rep Cas 1693.

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.

Even where need for 12-month finding remained speculative when intent to sue submitted on January 13, 2009, organizations and individuals' failure to provide 60 days' notice prior to bringing its claims with respect to 12-month finding meant those claims had to be dismissed; moreover, because organizations and individuals intent to sue letter did not notify Secretary of Department of Interior that they intended to challenge his subsequent failure to issue 12-month finding, it would have been unfair to permit this claim to proceed; therefore, court dismissed organizations and individuals' claim that Secretary's failure to issue 12-month finding violated 16 USCS § 1533. Conservation Force v Salazar (2010, DC Dist Col) 715 F Supp 2d 99.

19.--Standing

Parties challenging federal agency's biological opinion imposing lake-level restrictions to protect endangered species held to have standing under zone of interests test to bring §§ 1533 and 1536 claims under Endangered Species Act, and § 1536 claim under Administrative Procedure Act. Bennett v Spear (1997) 520 US 154, 137 L Ed 2d 281, 117 S Ct 1154, 97 CDOS 2000, 97 Daily Journal DAR 3647, 44 Envt Rep Cas 1161, 27 ELR 20824, 10 FLW Fed S 354, on remand, remanded (1997, CA9) 112 F3d 402, 97 CDOS 2932, 97 Daily Journal DAR 5164, summary judgment gr, summary judgment den, in part sub nom Bennett v Spear (1998, DC Or) 5 F Supp 2d 882.

Commercial wildlife photographer had legitimate interest in intervening in litigation brought by citizens group challenging Department of Interior's designation of Mexican Spotted Owl as endangered species where he had persistent record of advocacy for owl's protection. Coalition of Arizona/New Mexico Counties for Stable Economic Growth v DOI (1996, CA10 NM) 100 F3d 837, 36 FR Serv 3d 619, 27 ELR 20437 (criticized in San Juan County v United States (2007, CA10 Utah) 503 F3d 1163, 68 FR Serv 3d 1661, 37 ELR 20254).

Environmental groups have standing to bring action which seeks declaratory and injunctive relief requiring Fish and Wildlife Service to define critical habitat of razorback sucker fish (already classified as endangered species for more than two years). Colorado Wildlife Fed'n v Turner (1992, DC Colo) 36 Envt Rep Cas 1409, 23 ELR 20402.

With respect to monitoring activities that are required under 16 USCS § 1533(b)(3)(C)(iii), part of Endangered Species Act (ESA), word "shall" of course connotes statutory command, but word "effectively" renders discretionary details of how command is executed; ESA's citizen suit provisions, 16 USCS § 1540(g)(1)(C), are therefore inapplicable to monitoring activities under § 1533(b)(3)(C)(iii). Cal. Native Plant Soc'y v Norton (2005, DC Dist Col) 60 Envt Rep Cas 1119, dismd (2005, App DC) 2005 US App LEXIS 15621.

Environmental groups' members had aesthetic and recreational interest in observing gray wolf because members were involved in activities in and around gray wolf's habitat and devoted substantial amounts of time in support of wolf recovery and in pursuit of wolf throughout Northeast; in addition, groups' declarants participated in administrative process at issue and final rule issued by Fish and Wildlife Service to reclassify and remove gray wolf from list of endangered and threatened wildlife in portions of conterminous U.S. was traceable to groups' injuries; therefore, groups had standing. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).

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.

20.--Standard of review

Standard of review to be used in action challenging decision of National Forest Service to permit commencement of operation which could have detrimental effect on endangered species is "arbitrary and capricious" standard set forth in Administrative Procedure Act (5 USCS §§ 701 et seq.). Cabinet Mountains Wilderness v Peterson (1981, DC Dist Col) 510 F Supp 1186, 15 Envt Rep Cas 2081, 11 ELR 20812, affd (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.

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.

Secretary of Department of Interior's decision to proceed with three recovery plans for gray wolf rather than one comprehensive national plan was afforded Chevron deference. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).

21. Miscellaneous

Where Forest Service made initial determination that site of salvage timber sale would have no effect on Mexican spotted owl, there was no need for formal consultation under Endangered Species Act. Southwest Ctr. for Biological Diversity v United States Forest Serv. (1996, CA9 Ariz) 100 F3d 1443, 96 CDOS 8308, 96 Daily Journal DAR 13823, 43 Envt Rep Cas 2077, 27 ELR 20455 (criticized in Rhodes v Johnson (1998, CA7 Ill) 153 F3d 785, 47 Envt Rep Cas 1344, 29 ELR 20092) and (criticized in Heartwood, Inc. v United States Forest Serv. (2001, WD Mich) 2001 US Dist LEXIS 20602).

16 USCS § 1533(b)(3)(B) places limit on discretion provided by 16 USCS § 1533(b)(3)(A), since Congress intended to limit flexible deadline governing initial listing determination by enacting firm deadline for making final determination; thus, both initial finding and final determination must be completed within twelve months of date petition is received. Biodiversity Legal Found. v Badgley (2002, CA9 Or) 284 F3d 1046, 2002 CDOS 2553, 2002 Daily Journal DAR 3129, 54 Envt Rep Cas 1065, 32 ELR 20539, op withdrawn by order of ct (2002, CA9 Or) 309 F3d 1166, 33 ELR 20092 and substituted op (2002, CA9 Or) 309 F3d 1166, 2002 CDOS 10902, 2002 Daily Journal DAR 12632.

Hybrids of two protected subspecies (e.g., protected tiger subspecies) are protected under Endangered Species Act, 16 USCS §§ 1531 et seq. United States v Kapp (2005, CA7 Ill) 419 F3d 666, 61 Envt Rep Cas 1020, 67 Fed Rules Evid Serv 1330.

Evidence was sufficient to prove that defendant violated Endangered Species Act, 16 USCS §§ 1531 et seq., by trafficking in and killing tigers and leopards, as expert testimony and defendant's own statements established that animals were tigers and leopards, not non-protected tiger-lion hybrids. United States v Kapp (2005, CA7 Ill) 419 F3d 666, 61 Envt Rep Cas 1020, 67 Fed Rules Evid Serv 1330.

County agencies and water districts' argument that United States Fish and Wildlife Service failed to utilize data from three studies in reaching its listing decision, and therefore, violated requirement under Endangered Species Act, 16 USCS §§ 1531 et seq., to base its determination on best scientific and commercial data available under 16 USCS § 1533(b)(1)(A) was without merit where agencies and districts pointed to no data that was omitted from consideration. Kern County Farm Bureau v Allen (2006, CA9 Cal) 450 F3d 1072, 62 Envt Rep Cas 1865, 36 ELR 20117.

Interior Department is given only slight extension of time to complete final designation of critical habitat for marbled murrelet, despite legislative rider rescinding funds for critical habitat determinations, where official explanation merely relied on need for funding other projects and additional review made necessary by new state regulatory information, because Department does not convince court that duty to designate critical habitat under 16 USCS § 1533(b)(6)(C) has been temporarily repealed or that inadequate funding has made designation impracticable. Marbled Murrelet v Babbitt (1996, WD Wash) 918 F Supp 318, 42 Envt Rep Cas 1647, 26 ELR 20990.

Federal agency's failure to conduct formal consultation under § 7 of Endangered Species Act (ESA), 16 USCS § 1536, of promulgation of rule as to salmon take under § 4(d) of ESA, at general, preliminary level, was not arbitrary and capricious. Wash. Envtl. Council v Nat'l Marine Fisheries Serv. (2002, WD Wash) 32 ELR 20570.

To deny listing of species simply because one scientific field has not caught up with knowledge in other fields does not give benefit of doubt to species and fails to meet best available science requirement. Ctr. for Biological Diversity v Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340, vacated on other grounds, remanded (2007, CA9 Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op withdrawn on other grounds (2007, CA9 Wash) 511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676, 38 ELR 20001.

U.S. Fish and Wildlife Service's initial finding--that emergency listing was not warranted under 16 USCS § 1533(b)(7)--was not reviewable under 16 USCS § 1540(g)(1) because nothing in 16 USCS § 1533(b)(7) indicated that option of emergency listing was non-discretionary with U.S. Secretary of Interior. Inst. for Wildlife Prot. v Norton (2003, WD Wash) 303 F Supp 2d 1175.

Court did not have jurisdiction under 5 USCS § 706(2) to review action filed by plaintiffs, state and coalition, that defendants, Secretary of Department of Interior and Director of Fish and Wildlife Services, violated Endangered Species Act (ESA) and Administrative Procedures Act by rejecting state's gray wolf management plan under Wyo. Stat. Ann. § 23-1-304 because plaintiffs failed to establish that defendants had mandatory duty to delist gray wolf, or lacked discretion as to management of wolf depredations; therefore, court could not review claims that defendants violated ESA by failing to use best science available. Wyoming v United States DOI (2005, DC Wyo) 360 F Supp 2d 1214, 60 Envt Rep Cas 1189, affd, in part (2006, CA10 Wyo) 442 F3d 1262, 62 Envt Rep Cas 1137, 36 ELR 20067 and (criticized in Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330).

Where environmental groups contended that U.S. Fish and Wildlife Service (FWS) violated its own regulation by failing to reinitiate consultation pursuant to Endangered Species Act, 16 USCS §§ 1531-1544, § 7, 16 USCS § 1536, on city's incidental take permit (ITP) once FWS completed recovery plan for vernal pool species, federal district court was troubled that FWS, pursuant to 16 USCS § 1533, was significantly behind schedule regarding completion of recovery plans; accordingly, during reinitiation process that was subsequently ordered, FWS was to consider standards and other information in its vernal pool recovery plan to evaluate effect of city's ITP on vernal pool species and whether mitigation was adequate. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070, injunction gr, summary judgment gr, in part, summary judgment den, in part on other grounds, remanded (2006, SD Cal) 470 F Supp 2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011 US App LEXIS 950.

Plaintiff builders association's claim that defendant officials of U.S. Fish and Wildlife Service and Department of Interior failed to conduct 16 USCS § 1533's mandatory Environmental Species Act reviews was reviewable under 5 USCS § 704 as inaction made reviewable by statute because 16 USCS § 1540(g)(1)(C) explicitly provided private right of action to compel nondiscretionary duties. Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330.

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.

It was inferable from references in forest plan that recovery plans, 16 USCS § 1533(f), had significant substance and required counts of species, creation of favorable habitat when necessary and appropriate, and specific monitoring measures; original version of mitigation measure specifically recognized that recovery plans had been established for threatened and endangered species believed to exist or which may exist in forest at issue and forest plan also stated where these species occurred, their range and habitat requirements, and gave numerical population estimates for those within forest. Sierra Club v United States Forest Serv. (2008, ND Ga) 535 F Supp 2d 1268, judgment entered, injunction gr (2008, ND Ga) 593 F Supp 2d 1306.

Environmental groups were entitled to preliminary injunction, reinstating protections under Endangered Species Act, 16 USCS §§ 1531 et seq., for northern Rocky Mountain gray wolf, because they were likely to succeed on their claim that government acted arbitrarily in delisting wolf despite lack of evidence of genetic exchange between subpopulations, and their claim that government acted arbitrarily and capriciously when it approved Wyoming's 2007 plan despite state's failure to commit to managing for 15 breeding pairs and plan's malleable trophy game area, and because groups had shown significant possibility of irreparable injury. Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146, subsequent app, summary judgment gr, in part, summary judgment den, in part (2010, DC Mont) 729 F Supp 2d 1207, 40 ELR 20219 and (Abrogated in part as stated in Modesto Irrigation Dist. v Gutierrez (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226).

Unpublished Opinions

Unpublished: No judicial action was warranted with respect to plaintiffs' first claim for relief, which alleged that Secretary of Department of Interiors' delay in issuing 90-day finding violated Endangered Species Act and Administrative Procedure Act, because plaintiffs had not made showing of prejudice resulting from Secretary's allegedly tardy 90-day finding, and even if Secretary were to have made positive 90-day finding within 90 days after plaintiffs filed its petition, Secretary would have been under no obligation to act again until deadline for 12-month finding. Inst. for Wildlife Prot. v Norton (2005, CA9 Wash) 149 Fed Appx 627.

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TITLE 16. CONSERVATION

CHAPTER 35. ENDANGERED SPECIES

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16 USCS § 1534