1 of 15 documents united states code service

Unpublished Opinions

Unpublished: In case in which orchid growers association challenged final rule by Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) permitting importation of certain orchids from Taiwan in growing media, district court's entry of summary judgment in favor of U.S. Department of Agriculture and U.S. Department of Interior was affirmed; as required by 16 USCS § 1536(a)(2), APHIS had consulted with U.S. Department of Interior's Fish and Wildlife Service, and two agencies had engaged issue at great length, with apparent care, and on basis of at least 20 years experience importing orchids in bare-root form; association failed to show that decision was arbitrary. Hawai'i Orchid Growers Ass'n v Johanns (2007, App DC) 249 Fed Appx 204, 65 Envt Rep Cas 2062.

39.--Campground operation

National Park Service (NPS) may continue to operate campground in national park habitat of grizzly bear, which is endangered species, while environmental impact statement on campground is prepared under 16 USCS § 1536(a)(1), where interim management plan for campground, which provides for continued operation, is judged by National Fish and Wildlife Service not to jeopardize continued existence of grizzly bear. National Wildlife Federation v National Park Service (1987, DC Wyo) 669 F Supp 384.

Decision by National Park Service to continue to operate certain campground in national park that is in habitat of grizzly bear, which is endangered species, while environmental impact statement (EIS) is being prepared is proper under 16 USCS § 1536(d), where operation (1) is at reduced level, and (2) may be terminated, modified, or made permanent depending on EIS findings, because situation is not as extreme as that which § 1536(d) is intended to correct. National Wildlife Federation v National Park Service (1987, DC Wyo) 669 F Supp 384.

40.--Dam construction and operation

Where Tennessee Valley Authority has failed to take necessary steps to insure that impoundment of river will not jeopardize survival of snail darter or modify its habitat, continued work, directed toward impoundment, violates 16 USCS § 1536. Hill v Tennessee Valley Authority (1977, CA6 Tenn) 549 F2d 1064, 9 Envt Rep Cas 1737, 7 ELR 20172, affd (1978) 437 US 153, 98 S Ct 2279, 57 L Ed 2d 117, 11 Envt Rep Cas 1705, 8 ELR 20513 (superseded by statute on other grounds as stated in Board of Governors of Federal Reserve System v Dimension Financial Corp. (1986) 474 US 361, 106 S Ct 681, 88 L Ed 2d 691, CCH Fed Secur L Rep P 92437) and (superseded by statute on other grounds as stated in Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572) and (superseded by statute on other grounds as stated in Pacific Rivers Council v Thomas (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt Rep Cas 1078, 24 ELR 21367) and (superseded by statute on other grounds as stated in Rio Grande Silvery Minnow v Keys (2002, DC NM) 356 F Supp 2d 1222) and (superseded by statute on other grounds as stated in Sierra Club v Strock (2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep Cas 2082, 37 ELR 20188, 20 FLW Fed D 995) and (superseded by statute on other grounds as stated in Hoosier Envtl. Council v United States DOT (2007, SD Ind) 2007 US Dist LEXIS 90840) and (superseded by statute on other grounds as stated in Grand Canyon Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).

In connection with challenge to Secretary's refusal to sell water from dam in reservoir for municipal and industrial use in neighboring cities, (1) Endangered Species Act (16 USCS §§ 1531 et seq.) requires Secretary to give priority to conserving endangered species of fish in reservoir so long as they are endangered and threatened, and (2) Secretary did not abuse discretion both in determining that there was no excess water to sell for municipal and industrial purposes after obligations under Act were fulfilled, and in rejecting alternate plan for operation of reservoir. Carson-Truckee Water Conservancy Dist. v Clark (1984, CA9 Nev) 741 F2d 257, 21 Envt Rep Cas 2111, 14 ELR 20797, cert den (1985) 470 US 1083, 85 L Ed 2d 141, 105 S Ct 1842.

District court properly ruled that National Marine Fisheries Service's (NMFS) 2004 Biological Opinion, which found that proposed operations of Federal Columbia River Power System dams for 2004 through 2014 would not jeopardize 13 listed endangered salmonoid species, was structurally flawed under 16 USCS § 1536; NMFS's jeopardy analysis was structurally flawed because it used hypothetical "reference operation" to exclude from proposed action's impacts effects of related "nondiscretionary" operations, because it failed to incorporate degraded baseline conditions, and because it did not adequately consider proposed action's impacts on listed species' chances of recovery. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.

District court properly found that National Marine Fisheries Service's (NMFS) biological opinion, which found that dam operations would not jeopardize listed salmonoid species, was structurally flawed under Endangered Species Act, 16 USCS § 1536; NMFS's jeopardy analysis was flawed because it used hypothetical "reference operation" to exclude from proposed action's impacts effects of related "nondiscretionary" operations, failed to incorporate degraded baseline conditions, and failed to adequately consider proposed action's impacts on listed species' chances of recovery. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099.

District court properly held that National Marine Fisheries Service (NMFS) violated Endangered Species Act, 16 USCS § 1536, by failing to ensure that proposed dam operations would not destroy or adversely modify critical habitat for any listed fish; NMFS's adverse modification analysis was deficient because it did not adequately consider recovery needs, and critical habitat determination was arbitrary and capricious under 5 USCS § 706(2)(A) because it did not adequately consider proposed actions' short-term negative effects in context of affected species' life cycles and migration patterns, relied on uncertain long-term improvements to critical habitat to offset certain short-term degradation, and concluded that species' critical habitat was sufficient for recovery without adequate information to make that determination. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099.

FERC complied with 16 USCS § 1536 when it directed power company to increase water released from dam where it satisfied its duty to confer with Fish and Wildlife Service on endangered snail's habitat, and Service was deeply involved and recommended increased flow. Alabama Power Co. v FERC (1992, App DC) 298 US App DC 351, 979 F2d 1561, 138 PUR4th 352, 23 ELR 20238.

Action to compel Secretary to store water in reservoir for nearby municipal and industrial use will be dismissed since Secretary's plan of operating dam so as to restore species of lake fish to nonendangered status is supported by substantial evidence and since Secretary is required, under Endangered Species Act (16 USCS §§ 1531 et seq.) to give lake fish priority over all other purposes of dam until fish are no longer classified as endangered or threatened. Carson-Truckee Water Conservancy Dist. v Watt (1982, DC Nev) 549 F Supp 704, 13 ELR 20535.

Army Corps of Engineers did not exceed its statutory authority in denying dam developers nationwide temporary permit to discharge sand and gravel during course of dam construction on tributary of navigable river, where Corps determined that operation of dam and altered water flow would have adverse impact on whooping cranes whose critical habitat exists some 250 to 300 miles downstream. Riverside Irrigation Dist. v Andrews (1983, DC Colo) 568 F Supp 583, 19 Envt Rep Cas 1550, 13 ELR 21091, affd (1985, CA10 Colo) 758 F2d 508, 22 Envt Rep Cas 1773, 15 ELR 20333.

Preliminary injunctive relief was granted where agency's failure to establish permissible "take" of protected salmon species or reasonable surrogate for such "take" eliminated critical check against agency action under Endangered Species Act, and environmental groups challenging agency's determination established that proposed action (dredging of Snake River) was likely to adversely modify critical habitat of endangered species (salmon). Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2002, WD Wash) 235 F Supp 2d 1143.

Bureau of Reclamation was granted summary judgment on claim of landowners and irrigation districts that it breached their water distribution contracts under Reclamation Act of 1902, 43 USCS §§ 371 et seq., by temporarily reducing irrigation water when forecasted drought was likely to affect three endangered species because passage of Endangered Species Act was sovereign act that could not give rise to liability for failing to deliver water. Klamath Irrigation Dist. v United States (2007) 75 Fed Cl 677.

41.--Forest management

District court erred in finding that federal officials had not violated 16 USCS § 1536(a)(2) in preparing biological assessment for timber sale where there was no indication in record that area chosen by federal agency as geographic area for considering effects on grizzly bear coincided with action required to be analyzed under Endangered Species Act, 16 USCS §§ 1531 et seq. Native Ecosystems Council v Dombeck (2002, CA9 Mont) 304 F3d 886, 2002 CDOS 9497, 2002 Daily Journal DAR 10669, 55 Envt Rep Cas 1712, 33 ELR 20042.

Forest Service and Fish and Wildlife Service (FWS) formally consulted twice, once on programmatic level and once for timber harvesting project specifically, and after each consultation, FWS issued "no jeopardy" opinions based on existing data; while future surveys and things that occurred during project itself might have provided new information about presence and habitat of endangered Indiana bat in project area, conclusions of Forest Service and FWS were well supported by administrative record, which included all available data that then existed on Indiana bat and project area; thus, Forest Service and FWS did not act arbitrarily and capriciously in determining that existing data on Indiana bats was sufficient to conclude that project was not likely to jeopardize species and, therefore, no violation of Endangered Species Act, 16 USCS §§ 1531-1544, occurred. Heartwood, Inc. v United States Forest Serv. (2004, CA8 Mo) 380 F3d 428, 34 ELR 20083.

Forest Service violated § 7 of Endangered Species Act, 16 USCS § 1536, when it failed to re-initiate consultation with Fish and Wildlife Service after it failed for several years to adequately monitor cattle grazing on plot of national forest land; although it initiated informal consultation, action was not moot and declaratory judgment was appropriate in environmental group's 16 USCS § 1540(g) action against it because such judgment would govern Forest Service's actions for remainder of grazing permit period. Forest Guardians v Johanns (2006, CA9 Ariz) 450 F3d 455, 36 ELR 20109.

Incidental Take Statement which would have authorized taking of all northern spotted owls associated with full timber harvest of 22,227 acres was arbitrary and capricious and violated Endangered Species Act, 16 USCS §§ 1531-1544, because underlying Biological Opinion had been withdrawn, it failed to provide numerical limit on take without explaining why such limit was impracticable, and it could never trigger reinitiation of consultation. Or. Natural Res. Council v Allen (2007, CA9 Or) 476 F3d 1031, 64 Envt Rep Cas 1033, 37 ELR 20048.

Issuance of permanent injunction was affirmed because United States Forest Service violated National Environmental Policy Act (NEPA) and Endangered Species Act when it promulgated State Petitions Rule with regard to management of roadless areas in national forests and district court did not abuse its discretion in ordering Forest Service to comply with Roadless Rule as remedy for these procedural shortcomings. Cal. ex rel. Lockyer v USDA (2009, CA9 Cal) 575 F3d 999, 69 Envt Rep Cas 1161, 39 ELR 20172, amd on other grounds (2009, CA9 Cal) 2009 US App LEXIS 19218 and reprinted as amd (2009, CA9 Cal) 2009 US App LEXIS 19219.

United States Fish and Wildlife Service's decision to capture and remove from wild habitat all California condors, which represented policy change, was not arbitrary and capricious, nor did it fail to satisfy requirements of 16 USCS §§ 1536 and 1539, despite its documentation's succinctness, since environmental assessment and addendum adequately disclosed concerns underlying decision and demonstrated rational basis. National Audubon Soc. v Hester (1986, App DC) 255 US App DC 191, 801 F2d 405.

Court of Federal Claims erred in finding that violation of 150-day guideline of Endangered Species Act, 16 USCS § 1536(b), had no bearing on reasonableness of Forest Service two-year suspension of timber contracts. Scott Timber Co. v United States (2003, CA FC) 333 F3d 1358, 33 ELR 20232, reh den (2003, CA FC) 2003 US App LEXIS 22502.

Cross-motions for summary judgment are granted to federal defendants and agency's adoption of forest management plan is declared lawful, where defendant representing timber agency asserted that federal agencies violated duty under 43 USCS § 1181a to manage land for timber production under principle of sustained yield, since federal defendants had duty to comply at same time with ESA's mandate to conserve endangered species by protecting their habitats, 16 USCS § 1536(a). Seattle Audubon Soc'y v Lyons (1994, WD Wash) 871 F Supp 1291, 25 ELR 20711, affd (1996, CA9 Wash) 80 F3d 1401, 96 CDOS 2449, 96 Daily Journal DAR 4131, 42 Envt Rep Cas 1568, 26 ELR 20980.

Environmental group's claim seeking determination that U.S. Forest Service (USFS) and Bureau of Indian Affairs violated 16 USCS § 1536(a)(2) by failing to consult with U.S. Fish and Wildlife Service about programmatic land management plans that affect threatened Mexican spotted owl and its critical habitat is granted summarily, where land resource management plans (LRMPs) make programmatic decisions affecting how forest resources will be utilized over 10-to 15-year planning period, interim directives (IDs) are policies to provide USFS land managers guidelines for carrying out conservation programs to maintain viability of Mexican spotted owl, and management recommendations for Northern Goshawk (MRNG) is programmatic planning document that drives configuration of timber sales and other USFS management activities in owl habitat, because LRMPs, IDs, and MRNG are agency actions that trigger consultation process in § 1536(a)(2). Silver v Babbitt (1995, DC Ariz) 924 F Supp 976, 26 ELR 21374.

Agriculture Secretary's proposed emergency sale of salvage timber in national forest may proceed, where severe forest fire in 1994 burned or damaged more than 27,500 acres, requiring swift action to allow for recovery of merchantable timber, even though environmental group could proffer contradictory expert opinion on sale's impact on Mexican spotted owl, because Secretary reasonably relied on Forest Service biologist's 16 USCS § 1536(a)(2) assessment that proposed sale would have no effect on owl. Southwest Ctr. for Biological Diversity v Glickman (1996, DC Ariz) 932 F Supp 1189, 27 ELR 20186, affd sub nom 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).

U.S. Forest Service's Texas Red-Cockaded Woodpecker Plan met requirements of §§ 7, 9 of Endangered Species Act, 16 USCS §§ 1536, 1539, where it included establishment of program of mid-story hardwood removal, preserved old-growth pine trees needed by red-cockaded woodpecker for nesting, and thinned forest in and around red-cockaded woodpecker colonies to provide necessary habitat of open, park-like stands of pine that were preferred by species. Sierra Club v Veneman (2003, ED Tex) 273 F Supp 2d 764.

U.S. Forest Service was not required to engage in formal consultation with Fish and Wildlife Service with respect to effects of national forest logging project on Canada lynx where considerable evidence supported Forest Service's conclusion that neither lynx nor lynx habitat was present in forest. Habitat Educ. Ctr., Inc. v Bosworth (2005, ED Wis) 363 F Supp 2d 1090, 60 Envt Rep Cas 1421.

Interpretation by Forest Service and Fish & Wildlife Service of regulations implementing Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., and their precise implementation in use of tiered consultation system was matter best left to agencies and owed deference by court; use of such system had impeded their fulfilling all requirements mandated by ESA and its implementing regulations when considering impact on federally endangered Indiana bat of two timber sale projects in Wayne National Forest and implementation of amendment to Wayne National Forest's Land and Resource Management Plan. Buckeye Forest Council v United States Forest Serv. (2005, SD Ohio) 378 F Supp 2d 835.

State Petitions for Inventoried Roadless Area Management Rule, 70 Fed. Reg. 25,654 (May 13, 2005), had been improperly adopted by federal agencies without environmental analysis as required by National Environmental Policy Act, 42 USCS § 4332, and without consultation as to potentially affected, endangered or threatened species as required by Endangered Species Act, 16 USCS § 1536; State Petitions Rule, which eliminated uniform national protection of roadless areas in national forests from road construction and timber harvesting and allowed states to petition to alter level of protection of roadless areas, was not mere procedural change but substantive repeal of previous Roadless Area Conservation Rule, 66 Fed. Reg. 3,244 (Jan. 12, 2001). Cal. ex rel. Lockyer v United States Dep't of Agric. (2006, ND Cal) 459 F Supp 2d 874, 64 Envt Rep Cas 1040 (criticized on other grounds in Wyoming v United States Dep't of Agric. (2008, DC Wyo) 570 F Supp 2d 1309, 38 ELR 20212) and affd (2009, CA9 Cal) 575 F3d 999, 69 Envt Rep Cas 1161, 39 ELR 20172, amd on other grounds (2009, CA9 Cal) 2009 US App LEXIS 19218 and reprinted as amd (2009, CA9 Cal) 2009 US App LEXIS 19219.

Fish & Wildlife Service's "no jeopardy" finding for grizzly bear habitat was declared unlawful and set aside because its use of existing degraded habitat conditions brought on by Forest Service's refusal to enforce its own rules was contrary to 16 USCS § 1536 of Endangered Species Act (ESA), 16 USCS §§ 1533 et seq. Swan View Coalition v Barbouletos (2008, DC Mont) 38 ELR 20142, summary judgment gr, in part, summary judgment den, in part,, motion gr, claim dismissed, as moot (2008, DC Mont) 2008 US Dist LEXIS 108211, motion gr, in part, motion den, in part, injunction gr (2009, DC Mont) 639 F Supp 2d 1187 and affd (2009, CA9 Mont) 348 Fed Appx 295.

Because U.S. Forest Service had been found to have violated National Environmental Policy Act (NEPA), 42 USCS §§ 4321-4347, by failing to make biological assessments under 16 USCS § 1536(c) to determine impact of its Region Eight forest management plans on proposed, endangered, threatened, and sensitive species, injunctive relief was proper to enjoin Service against authorizing future forest projects, pending compliance with NEPA. Sierra Club v United States Forest Serv. (2008, ND Ga) 593 F Supp 2d 1306.

Environmental groups were not entitled to judgment reversing administrative decisions of United States Forest Service (USFS) in approving 2003 Ice Storm Project and revised forest plan for Daniel Boone National Forest in Kentucky; USFS's explanation provided rational basis for its decision not to reinitiate formal consultation with Fish and Wildlife Service under 16 USCS § 1536 based on outbreaks of White Nose Syndrome in bat populations in other national forests. Heartwood, Inc. v Agpaoa (2009, ED Ky) 611 F Supp 2d 675, revd on other grounds, remanded (2010, CA6 Ky) 628 F3d 261, 2010 FED App 374P.

Ethics organization was entitled to summary judgment in its action against U.S. Forest Service (USFS) under National Environmental Policy Act; USFS violated 42 USCS § 4332(2)(C) in failing to prepare Environmental Impact Statement in relation to use of chemical fire retardants to fight wildfires on USFS lands because jeopardy findings of Fish and Wildlife Service and National Marine Fisheries Service under 16 USCS § 1536 constituted significant impacts that were not alleviated by reasonable and prudent alternative that required USFS to develop species-specific measures to be implemented during fire response emergencies. Forest Serv. Emples. v United States Forest Serv. (2010, DC Mont) 726 F Supp 2d 1195.

42.--Land development

Fish and Wildlife Service did not violate 16 USCS §§ 1536(a)(2) or 1539(a) when it issued permit authorizing "taking" of Mission Blue butterflies from area designated as site of proposed residential and commercial development, since (1) biological field study conducted by Service adequately supports findings that taking will not appreciably reduce likelihood of survival of butterflies and (2) comprehensive conservation plans submitted by Service contain many measures to "minimize and mitigate" impact of project upon butterfly. Friends of Endangered Species, Inc. v Jantzen (1985, CA9 Cal) 760 F2d 976, 22 Envt Rep Cas 1817, 15 ELR 20455.

Fish and Wildlife Service which conducted biological study of wilderness area in order to determine effect of proposed construction on certain endangered species, and which subsequently issued development permit for area, did not violate Endangered Species Act (16 USCS §§ 1531 et seq.), since Service considered all necessary factors in concluding that proposed development will not threaten continued existence of endangered species, and since Service expressly endorsed finding that proposed development may actually aid survival of particular species. Friends of Endangered Species, Inc. v Jantzen (1984, ND Cal) 589 F Supp 113, 20 Envt Rep Cas 1811, affd (1985, CA9 Cal) 760 F2d 976, 22 Envt Rep Cas 1817, 15 ELR 20455.

Plaintiffs are not entitled to preliminary injunctions staying issuance of permit by Fish and Wildlife Service which allows incidental taking of 3 federally protected endangered species by allowing commercial development of part of mountain, since Service reasonably responded to all of material criticisms of biological study and permit findings set forth by plaintiff in its papers during public comment period, and since there is no evidence of bad faith or unreasonable conduct by agency. Friends of Endangered Species, Inc. v Jantzen (1984, ND Cal) 596 F Supp 518, 20 Envt Rep Cas 1645.

No further review is warranted of large development project, including domed stadium, on part of Missouri River Bottoms floodplains, where Army Corps of Engineers allowed nearly 2 years for public notice and comment on original proposal, and informal reevaluation following addition of stadium generated administrative record of some 66 pounds, because (1) Corps rationally concluded under 33 USCS § 1344 that wetlands loss would be fully mitigated by developer's agreement to establish more than 10 acres of wetlands at other location, (2) trial evidence demonstrated that project will not cause any nonconformance with Missouri's state implementation plans under Clean Air Act (42 USCS § 7506), (3) possible disruption to bald eagles in area was analyzed and determined to be minimal under permit conditions, in compliance with 16 USCS § 1536, and (4) Corps amply considered potential impacts of increased traffic and surface water runoff to be caused by stadium and its parking lot. Missouri Coalition for Environment v Corps of Engineers of United States Army (1988, ED Mo) 678 F Supp 790, 27 Envt Rep Cas 1822, 19 ELR 20581, affd (1989, CA8 Mo) 866 F2d 1025, 28 Envt Rep Cas 1902, 19 ELR 20588, reh den (1989, CA8) 1989 US App LEXIS 4033 and cert den (1989) 493 US 820, 107 L Ed 2d 42, 110 S Ct 76, 30 Envt Rep Cas 1272 and (criticized in Earth Protector v Jacobs (1998, DC Minn) 993 F Supp 701).

Wildlife groups are entitled to declaratory and partial injunctive relief requiring Federal Emergency Management Agency to consult with U.S. Fish and Wildlife Service, pursuant to 16 USCS § 1536(a)(2), to determine effects of National Flood Insurance Program (NFIP) in Monroe County on endangered Florida Key deer, where they have demonstrated substantial likelihood that causal relationship exists between availability of flood insurance and rate or amount of new development, because statute mandates consultation since NFIP has been shown to spur development which threatens habitat and recovery of endangered deer. Florida Key Deer v Stickney (1994, SD Fla) 864 F Supp 1222, 39 Envt Rep Cas 1641, 8 FLW Fed D 362.

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., § 7(d) of ESA, 16 USCS § 1536(d) did not permit FEMA to continue issuing new flood insurance during remand period because § 7(d) did not excuse federal agencies from meeting requirements of § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2). 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 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.

Section 7 of Endangered Species Act (ESA) only applied to actions in which there was discretionary Federal involvement or control, and because defendant Army Corps of Engineers was charged only with evaluating and ensuring that proposed action--artificial breaching of sand bar between two lakes and Pacific Ocean at certain water level--complied with ESA, and Corps had engaged in requiredconsultations and appropriately concluded that permit's level complied with ESA, contrary to plaintiff water district's argument, Corps' responsibilities under ESA did not extend further. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F Supp 2d 242.

Under 16 USCS § 1536(b)(3)(A), illegal take of species occurred when take of that species was result of action by person or agency, and in contrast, takes that resulted from acts of nature did not fall within prohibition of § 9 of Endangered Species Act and under 16 USCS § 1532(19) could not be blamed on Federal agency, and because rainfall and other precipitation caused natural filling of lakes in question and as lakes filled, surrounding areas flood which could cause take of listed species and their habitats, that was not illegal take not result of artificial breaching of sand bar between lakes and Pacific Ocean as permitted in defendant Army Corps of Engineers' permit and plaintiff water district's argument to contrary failed. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F Supp 2d 242.