1 of 15 documents united states code service

43.--Oil and gas exploration

In issuing final notice of sale of leases for oil and gas exploration and production in St. George Basin under Outer Continental Shelf Lands Act (43 USCS §§ 1331 et seq.), Secretary did not violate 16 USCS § 1536 by either (1) issuing final notice before receiving Fisheries Service's final biological opinion on lease sale or (2) failing to insure that his actions were not likely to jeopardize continued existence of any endangered species by failing to adopt, at leasing stage, specific measures protecting whales from oil spills and seismic testing. False Pass v Clark (1984, CA9 Alaska) 733 F2d 605, 20 Envt Rep Cas 1705, 14 ELR 20398, 81 OGR 457 (criticized in Conner v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379).

Secretary of Interior satisfied 16 USCS § 1536(a)(2) concerning Alaskan oil lease sale since rejection of "reasonable and prudent alternatives" recommended by National Marine Fisheries Service was neither arbitrary nor capricious and biological opinion relied on by Secretary considered adverse impact on whales. Tribal Village of Akutan v Hodel (1988, CA9 Alaska) 869 F2d 1185, 105 OGR 186, cert den (1989) 493 US 873, 107 L Ed 2d 157, 110 S Ct 204.

District court properly granted summary judgment in favor of Bureau of Land Management (BLM) and Fish and Wildlife Service (FWS) in action by environmental groups alleging violations of 42 USCS § 4332, part of National Environmental Policy Act (NEPA), and 16 USCS § 1536, part of Endangered Species Act (ESA); at early stage of oil and gas leasing program in Northwest Planning Area of Alaska, BLM's resource by resource analysis satisfied NEPA's site specific analysis requirement for BLM's Final Environmental Impact Statement under 42 USCS § 4332(2)(C) and also satisfied Congressional intent as expressed in 42 USCS § 6508. FWS's Biological Opinion satisfied 16 USCS § 1536(a)(2) by relying on reasonable and foreseeable oil development scenario. N. Alaska Envtl. Ctr. v Kempthorne (2006, CA9 Alaska) 457 F3d 969, 62 Envt Rep Cas 2001, 36 ELR 20141.

In action seeking to enjoin Secretary of Interior from receiving or opening bids for gas and oil exploration on Outer Continental Shelf, where plaintiffs insist that lease sale would constitute irretrievable commitment of resources under 16 USCS § 1536(d) in that continued existence of hump-back and right whales might be jeopardized, preliminary injunction would not issue since it appears that Secretary has incorporated safeguards into lease operations and proposed lease stipulations themselves, and finally, if operations under particular lease would jeopardize existence of whales, Amendments to OCSLA (43 USCS § 1334(a)(2)(A)) permit Secretary to cancel lease. Massachusetts v Andrus (1979, DC Mass) 481 F Supp 685, 13 Envt Rep Cas 1857, 9 ELR 20764.

Secretary will be preliminarily enjoined from conducting sale of leases for exploration, development and production of oil and gas in George's Bank Region of Outer Continental Shelf on grounds of inadequacy of final EIS prepared in connection with sale, where (1) Secretary failed to use best available scientific information necessary to preserve endangered species located in bank, (2) materials relied upon by Secretary do not support conclusion stated in EIS that no jeopardy to species is likely and (3) EIS itself contains incomplete and conclusory discussion of risk of jeopardy to endangered species. Conservation Law Foundation v Watt (1983, DC Mass) 560 F Supp 561, 18 Envt Rep Cas 1904, 13 ELR 20445, affd (1983, CA1 Mass) 716 F2d 946, 19 Envt Rep Cas 1745, 13 ELR 20893.

Endangered Species Act does not expressly require Secretary to await formal issuance of biological opinion before proceeding with final notice of sale of oil and gas leases; however, injunction will issue enjoining Secretary's proposed sale of oil and gas leases off coast of Alaska, where Secretary failed to take appropriate measures to ensure against dangers to continued existence of gray and white whales caused by seismic activities in connection with proposed construction of oil platforms and subsequent oil drilling. False Pass v Watt (1983, DC Alaska) 565 F Supp 1123, 18 Envt Rep Cas 2129, 13 ELR 20905, affd (1984, CA9 Alaska) 733 F2d 605, 20 Envt Rep Cas 1705, 14 ELR 20398, 81 OGR 457 (criticized in Conner v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379).

Bureau of Land Management did not violate 16 USCS § 1536 in connection with award of oil and gas lease which encompasses multiple-use lands in national forest, by failing, in its environmental impact statement, to provide adequate protection for grizzly bears present in area, where Bureau consulted with both state and federal Wildlife Services, and imposed such restrictions as no roads and limited drilling times, and where superintendent of national forest testified that no harm to bears would occur as result of lease with pertinent restrictions. Park County Resource Council, Inc. v United States Dep't of Agriculture (1985, DC Wyo) 613 F Supp 1182, 15 ELR 21036, 85 OGR 636, affd (1987, CA10 Wyo) 817 F2d 609, 25 Envt Rep Cas 1932, 17 ELR 20851, 98 OGR 381 (ovrld in part on other grounds by Los Ranchos de Albuquerque v Marsh (1992, CA10 NM) 956 F2d 970, 22 ELR 21033) and (ovrld in part on other grounds as stated in Pennaco Energy, Inc. v United States DOI (2003, DC Wyo) 266 F Supp 2d 1323, 157 OGR 999) and (ovrld in part on other grounds as stated in Pennaco Energy, Inc. v United States DOI (2004, CA10 Wyo) 377 F3d 1147, 58 Envt Rep Cas 2089, 34 ELR 20072, 161 OGR 417) and (criticized on other grounds in Turtle Island Restoration Network v United States DOC (2006, CA9 Hawaii) 438 F3d 937, 36 ELR 20044) and (ovrld on other grounds as stated in S. Utah Wilderness Alliance v BLM (2008, DC Utah) 69 Envt Rep Cas 1246) and (ovrld in part on other grounds as stated in N.M. ex rel. Richardson v BLM (2009, CA10 NM) 565 F3d 683, 68 Envt Rep Cas 2031, 39 ELR 20101, 170 OGR 477).

Prior to selling oil and gas leases, agency is required, under Endangered Species Act of 1973, 16 USCS §§ 1531 et seq., to assess potential effects of action on threatened or endangered species and, when action is sale of oil and gas leases, scope of action includes activities from leasing through post-production and abandonment. Mont. Wilderness Ass'n v Fry (2004, DC Mont) 310 F Supp 2d 1127, 162 OGR 303.

44.--Pesticide and rodenticide usage

District Court properly enjoined EPA from continuing strychnine registrations, since registrations constituted takings of endangered species in violation of 16 USCS § 1538, and EPA did not obtain incidental takings statement pursuant to § 1536 until after court's decision; however, if EPA can now show it has obtained such authorization, District Court should lift injunction. Defenders of Wildlife v Administrator, EPA (1989, CA8 Minn) 882 F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440.

Definition of "emergency" in Federal Insecticide, Fungicide and Rodenticide Act, 7 USCS §§ 136 et seq., and definition of "emergency" in Endangered Species Act, 16 USCS § 1536, while overlapping, are not equivalent to one another. Wash. Toxics Coalition v United States DOI (2006, WD Wash) 457 F Supp 2d 1158, 64 Envt Rep Cas 1280, 36 ELR 20190.

45.--Road construction

State agency which is constructing highway in conjunction with Federal Highway Administration is subject to injunction issued against federal agency barring it from continuing certain construction activities until it brings highway project into compliance with 16 USCS § 1536, notwithstanding fact that complaint does not allege that state agency has violated statute. National Wildlife Federation v Coleman (1976, CA5 Miss) 529 F2d 359, 9 Envt Rep Cas 1465, 6 ELR 20344, 32 ALR Fed 306, reh den (1976, CA5 Miss) 532 F2d 1375, 6 ELR 20648 and cert den (1976) 429 US 979, 50 L Ed 2d 587, 97 S Ct 489, 9 Envt Rep Cas 1559.

In connection with proposed construction of interstate highway, Federal Highway Administration's decision to rely on United States Fish and Wildlife Service's biological opinion was not arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law; Administration acted reasonably and in compliance with 16 USCS § 1536 in concluding that, based on best available scientific data, project is not likely to jeopardize existence of endangered species of bird. Stop H-3 Asso. v Dole (1984, CA9 Hawaii) 740 F2d 1442, 21 Envt Rep Cas 1644, 14 ELR 20777, cert den (1985) 471 US 1108, 85 L Ed 2d 859, 105 S Ct 2344.

In environmental organization's suit regarding environmental impact of toll road on listed species, Army Corps of Engineers fully complied with procedural requirements of National Environmental Policy Act of 1969, 42 USCS §§ 4321-4370d, and Endangered Species Act, 16 USCS §§ 1531-1544, for major federal projects by consulting with Fish and Wildlife Service and issuing environmental impact statement (EIS), and supplemental EIS was not required for alterations in project. Sierra Club v United States Army Corps of Eng'rs (2002, CA11 Fla) 295 F3d 1209, 54 Envt Rep Cas 1998, 15 FLW Fed C 710.

In connection with proposed completion of interstate highway system, state and federal agencies did not violate 16 USCS § 1536 by failing to consult and prepare biological assessment as to impact of project on small whorled pogonia, after species had been listed as endangered species, since defendants promptly consulted with Department of Interior regarding species after it had been listed as endangered, and where there is no evidence to indicate that species can be found at project location at this time. County of Bergen v Dole (1985, DC NJ) 620 F Supp 1009, affd without op (1986, CA3 NJ) 800 F2d 1130 and affd without op (1986, CA3 NJ) 800 F2d 1130.

In action by environmental organizations against Department of Energy (DOE), and Secretary of Energy, alleging violation of National Environmental Policy Act (NEPA), 42 USCS §§ 4321 et seq., and Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., for grant of road easement to mining company without first preparing environmental assessment or environmental impact statement, DOE's action was arbitrary and capricious under 5 USCS § 706 where DOE violated NEPA because its application of categorical exclusion to easement was inconsistent with 10 C.F.R. § 1021 as there was no rational basis to conclude that constructing private mining road on land was same land use as researching wind energy, DOE failed to consider and evaluate mine's impacts on environment as required by 10 C.F.R. § 1021.410(b)(3) as easement and mine were connected actions that were inextricably linked, DOE failed to consider both easement and future mine expansion as required by 40 C.F.R. §§ 1508.7 and 1508.8 as mine expansion was reasonably foreseeable, and DOE violated its continuing duty under 16 USCS § 1536(a)(2) to consult with Fish and Wildlife Service on environmental impacts of easement, including proposed mining project, on habitat of Preble's jumping mouse, which was listed as threatened species under ESA. Sierra Club v United States DOE (2002, DC Colo) 255 F Supp 2d 1177, 56 Envt Rep Cas 1119.

In context of 16 USCS § 1536, Fish and Wildlife Service's (FSW) actions were not arbitrary, capricious, or contrary to law where FSW record amply demonstrated that Federal Highway Administration and FWS engaged in extensive informal consultation which resulted in significant design modifications to toll road to avoid impacts to rare plant, Otay Mesa Mint. Ctr. for Biological Diversity v FHA (2003, SD Cal) 290 F Supp 2d 1175.

Unpublished Opinions

Unpublished: 294.12, which eliminated major nationwide land management program for inventoried roadless wilderness areas, was properly enjoined because USDA arbitrarily found under 5 USCS § 706(2)(A) that Rule was categorically exempt from environmental assessment under National Environmental Policy Act, 42 USCS § 4332(C), and Endangered Species Act, 16 USCS § 1536(a)(2). Cal. ex rel. Lockyer v United States Dep't of Agric. (2009, CA9 Cal) 2009 US App LEXIS 19219.

46. Effect on particular species

United States Fish and Wildlife Service decision to bring 6 remaining free condors into captivity in effort to stem condor flock's steady decline was not arbitrary and capricious under 16 USCS §§ 1531 et seq., where Service had originally endorsed maintaining small wild flock but later reversed its policy, and where Service's documentation was succinct but nonetheless adequately disclosed concerns underlying agency's decision and demonstrated that decision rested on rational basis. National Audubon Soc. v Hester (1986, App DC) 255 US App DC 191, 801 F2d 405.

Fish and Wildlife Service's determination that proposed copper and silver mine would not jeopardize Cabinet-Yaak grizzly bear population was arbitrary and capricious (given clear possibility that bears were at least not increasing, contemplating loss of additional bears related to mine was not rational), in violation of 16 USCS § 1536(a)(2) and 5 USCS §§ 701-706; therefore, court granted summary judgment to plaintiff environmental groups. Rock Creek Alliance v United States Fish & Wildlife Serv. (2005, DC Mont) 390 F Supp 2d 993.

Fish and Wildlife Service (FWS) fulfilled its responsibility under 16 USCS § 1536 by developing reasonable and prudent measure that would work, if properly implemented; whether mitigation would be effective was part of another claim, but on claim that that FWS' reliance on mitigation plan that allowed acquisition of replacement habitat after mine was to be built was "irreversible commitment of resources" in violation of 16 USCS 1536(d)), FWS was entitled to summary judgment. Rock Creek Alliance v United States Fish & Wildlife Serv. (2005, DC Mont) 390 F Supp 2d 993.

Animal protection organizations met burden of supporting their claim for declaratory relief with regard to their claim under § 9 of Endangered Species Act, 16 USCS § 1538(a)(1)(B), against Minnesota Department of Natural Resources (DNR) arising from 13 incidental takings of Canada Lynx in state since 2003; mere fact that DNR had begun process, after suit was filed, for issuing Incidental Take Permit under 16 USCS §§ 1536(b)(4), 1536(o)(2), 1539(a)(1)(B), did not bar issuance of declaratory and injunctive relief to organizations, to prevent more incidental takings of lynx, because it would be years before such permit would be issued. Animal Prot. Inst. v Holsten (2008, DC Minn) 541 F Supp 2d 1073, 67 Envt Rep Cas 1492, findings of fact/conclusions of law, injunction gr (2008, DC Minn) 2008 US Dist LEXIS 53396 (criticized in Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067).

Where United States Fish and Wildlife Service issued incidental take permits to city and Indian tribe for relocation of Utah Prairie Dogs, "threatened" species, decision was upheld because (1) Service complied with its statutory requirement to include take amount in incidental take statement, (2) Service was not obligated to include take amount on permits, (3) Service considered and properly rejected buried-fences alternative, and (4) recovery site provided strong mitigation to loss of artificial habitat. WildEarth Guardians v United States Fish & Wildlife Serv. (2009, DC Utah) 622 F Supp 2d 1155.

Coalition of environmental advocacy groups' claim that U.S. Forest Service violated 16 USCS § 1536 by making irreversible or irretrievable commitment of resources in approving mine project even though U.S. Fish and Wildlife Service had continuing role in approving mitigation parcels to be acquired for grizzly bear and in mitigation plans to be approved for bull trout was rejected because no authority supported claim. Rock Creek Alliance v United States Forest Serv. (2010, DC Mont) 703 F Supp 2d 1152, motion gr, judgment entered (2010, DC Mont) 2010 US Dist LEXIS 72434.

U.S. Fish and Wildlife Service and mining operator were entitled to summary judgment on coalition of environmental advocacy groups' claim alleging 16 USCS § 1536 violations with respect to bull trout because: (1) Service determined that success of fish passage program, coupled with historic natural connectivity of consolidated areas, provided sufficient grounds for consolidating four core areas into another core area; and (2) Service provided explanation that was lacking in its 2003 biological opinion by justifying its large scale analysis and resulting "no jeopardy" conclusion in way that rationally explained difference between its discussion of importance of local population and its discussion of subpopulation in pre-2003 biological opinions. Rock Creek Alliance v United States Forest Serv. (2010, DC Mont) 703 F Supp 2d 1152, motion gr, judgment entered (2010, DC Mont) 2010 US Dist LEXIS 72434.

U.S. Fish and Wildlife Service and mining operator were entitled to summary judgment on coalition of environmental advocacy groups' claims under 16 USCS § 1536 concerning grizzly bear because: (1) Service did not improperly rely on mitigation plan that allowed for final 566 acres of mitigation habitat to be acquired after construction of mine was complete but prior to start of operations as mining operator could not conduct any operations until final 566 acres were acquired and coalition did not question sufficiency of mining operator's resources; and (2) Service's failure to apply discount factor to unidentified mitigation habitat did not violate Administrative Procedure Act because record did not support coalition's assumption that Service based its no jeopardy finding on belief that mitigation plan would provide for replacement of habitat on acre-for-acre basis. Rock Creek Alliance v United States Forest Serv. (2010, DC Mont) 703 F Supp 2d 1152, motion gr, judgment entered (2010, DC Mont) 2010 US Dist LEXIS 72434.

Considering fact that there was nothing in record to support conclusion that Eastern Indigo Snake actually occupied site of intervenor developer's project, defendant Army Corps of Engineers' determination, after consulting with defendant Fish and Wildlife Service (FWS), that proposed action was not likely to adversely affect any listed species was not arbitrary or capricious; plaintiff environmental groups failed to carry their burden of showing that FWS' "not likely to adversely effect" determination was arbitrary and capricious. Sierra Club v Van Antwerp (2010, DC Dist Col) 719 F Supp 2d 58, 40 ELR 20180, injunction den, remanded (2010, DC Dist Col) 719 F Supp 2d 77.

47. Rulemaking procedure

Ex parte communications between White House and Endangered Species Committee, and failure to include such communications in record, violates APA. Portland Audubon Soc'y v Oregon Lands Coalition (1993, CA9) 984 F2d 1534, 93 CDOS 1003, 93 Daily Journal DAR 1935, 35 Envt Rep Cas 2081, 23 ELR 20560, amd on other grounds (1993, CA9) 93 CDOS 2411, 93 Daily Journal DAR 4157 and amd on other grounds (1993, CA9) 93 CDOS 2411, 93 Daily Journal DAR 4157.

According to groups, since BiOp was issued, new criteria developed by National Marine Fisheries Service showed that Canadian harvest was taking more Puget Sound Chinook than BiOp anticipated; these claims alleged sufficient injury to satisfy case or controversy requirement of U.S. Const. art. III standing. Salmon Spawning & Recovery Alliance v Gutierrez (2008, CA9 Wash) 545 F3d 1220, 67 Envt Rep Cas 1876, 38 ELR 20258.

Animal protection organizations' claims for injunctive and declaratory relief against Minnesota Department of Natural Resources (DNR) were not rendered moot simply because DNR had begun process of issuing "Incident Take Permit" (ITP) under 16 USCS §§ 1536(b)(4), 1536(o)(2), which would protect trappers who trapped or took Canada Lynx incidentally to their legal hunting activity in Minnesota, because it would be several years before ITP was issued; organizations had right to seek relief with regard to DNR's alleged violation of § 9 of Endangered Species Act, 16 USCS § 1538(a)(1)(B), unless and until ITP was actually issued. Animal Prot. Inst. v Holsten (2008, DC Minn) 541 F Supp 2d 1073, 67 Envt Rep Cas 1492, findings of fact/conclusions of law, injunction gr (2008, DC Minn) 2008 US Dist LEXIS 53396 (criticized in Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067).

48.--Judicial review

5 USCS § 706 governs review of Fish and Wildlife Service's actions concerning Endangered Species Act (16 USCS §§ 1531 et seq.). Friends of Endangered Species, Inc. v Jantzen (1985, CA9 Cal) 760 F2d 976, 22 Envt Rep Cas 1817, 15 ELR 20455.

Challenge to extension of registration of pesticide/rodenticide strychnine will not be dismissed for failure to exhaust 7 USCS § 136d(b) administrative remedies, where environmental groups took part in prior administrative review that was settled and now sue under 5 USCS § 706 to require EPA to comply with Endangered Species Act (16 USCS §§ 1531 et seq.), Migratory Bird Treaty Act (16 USCS §§ 703 et seq.), and Bald Eagle Protection Act (16 USCS §§ 668 et seq.) regarding registration of strychnine, because 7 USCS § 136d(b) does not preclude independent review of registrations where independent jurisdictional basis for suit exists. Defenders of Wildlife v Administrator, Environmental Protection Agency (1988, DC Minn) 688 F Supp 1334, 18 ELR 20960, affd in part and revd in part on other grounds (1989, CA8 Minn) 882 F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440.

District court lacked subject matter jurisdiction to consider environmental group's challenge to FCC's policies and practices with regard to registering owners and licenses of communications towers that allegedly harmed endangered birds on Hawaiian Islands; private right of action under 16 USCS § 1536 and 16 USCS § 1540, part of Endangered Species Act, did not remove claims from jurisdictional constraints of 47 USCS § 402 under Communications Act of 1934 and Hobbs Act, 28 USCS § 2342. Am. Bird Conservancy, Forest Conservation Council v FCC (2006, DC Hawaii) 408 F Supp 2d 987, 61 Envt Rep Cas 1987, affd (2008, CA9 Hawaii) 545 F3d 1190, 67 Envt Rep Cas 1833, 38 ELR 20257.

Because non-enforcement constituted failure to act, rather than affirmative action, 16 USCS § 1536 could not provide remedy that plaintiffs sought; their § 1536 claim therefore failed to meet case or controversy requirement of U.S. Const. art. III and so was dismissed for lack of subject matter jurisdiction. Salmon Spawning & Recovery Alliance v Basham (2007) 31 CIT 267, 477 F Supp 2d 1301, 64 Envt Rep Cas 2105, 29 BNA Intl Trade Rep 1465, 37 ELR 20059, affd in part and revd in part on other grounds, remanded (2008, CA FC) 532 F3d 1338, 30 BNA Intl Trade Rep 1257, 38 ELR 20175, reh gr, op withdrawn on other grounds (2008, CA FC) 30 BNA Intl Trade Rep 1873, 39 ELR 20304.

Neither 28 USCS §§ 1581(i)(3) nor 1581(i)(4) provided United States Court of International Trade with exclusive jurisdiction over stand-alone claim under § 7(a)(2) of Endangered Species Act (ESA), 16 USCS § 1536(a)(2); § 1581(i)(3) applied where law pursuant to which claim was brought involved administration and enforcement of, among other determinations, embargo or other quantitative restriction and plain language of § 7(a)(2) of ESA did not explicitly state, or otherwise imply, that purpose of provision was to administer or enforce embargo. Salmon Spawning & Recovery Alliance v United States (2009, CIT) 626 F Supp 2d 1277, 31 BNA Intl Trade Rep 1410.

49.----Parties; standing

Environmental groups lacked standing to challenge regulation interpreting 16 USCS § 1536 as not applying to foreign nations. Lujan v Defenders of Wildlife (1992) 504 US 555, 119 L Ed 2d 351, 112 S Ct 2130, 92 CDOS 4985, 92 Daily Journal DAR 7876, 92 Daily Journal DAR 8967, 34 Envt Rep Cas 1785, 22 ELR 20913, 6 FLW Fed S 374.

Parties challenging federal agency's biological opinion imposing lake-level restrictions to protect endangered species 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.

Because coalition of environmental groups alleged procedural injury, groups established both standing and ripeness, as wholesale neglect of regulations' mandatory inclusion of public in process resulted in procedural injury. Citizens for Better Forestry v United States Dep't of Agric. (2003, CA9 Cal) 341 F3d 961, 2003 CDOS 7837, 2003 Daily Journal DAR 9853, 56 Envt Rep Cas 2132, 33 ELR 20263 (criticized in Biodiversity Conservation Alliance v United States BLM (2005, DC Dist Col) 404 F Supp 2d 212) and magistrate's recommendation, costs/fees proceeding (2006, ND Cal) 497 F Supp 2d 1062.

Allegations made by plaintiff environmental groups' members met criteria for demonstrating adequate injury and establishing standing in challenge of decision under Endangered Species Act, 16 USCS § 1531 et seq, where members alleged they observed or worked with particular animals and plants threatened by federal decision to turn Clean Water Act pollution permitting process to state, photographing and observing in state various named, listed species, and hiking and camping in these species' various habitats, alleged harm to those animals and their habitat throughout state, and where they asserted they had aesthetic or recreational interest in particular place, animal, or plant species impaired by agency's decision; interests at stake--protection of endangered species--plainly related to association's mission and lawsuit did not require active involvement of individual members, as relief sought would run equally to all of them. Defenders of Wildlife v United States EPA (2005, CA9) 420 F3d 946, 60 Envt Rep Cas 2025, 35 ELR 20172, reh den, reh, en banc, den (2006, CA9) 450 F3d 394 and revd on other grounds, remanded (2007) 551 US 644, 127 S Ct 2518, 168 L Ed 2d 467, 64 Envt Rep Cas 1513, 37 ELR 20153, 20 FLW Fed S 454.

Allegations by non-profit organizations dedicated to protection of wild fishes that aesthetic, recreational, and environmental interests of their members were being adversely affected and irreparably injured by various federal agencies' failure to prevent importation of endangered salmon under § 7(a)(2) of Endangered Species Act of 1973, 16 USCS § 1536(a)(2), was sufficient to establish injury-in-fact fairly for purposes of standing. Salmon Spawning & Recovery Alliance v United States Customs & Border Prot. (2008, CA FC) 532 F3d 1338, 30 BNA Intl Trade Rep 1257, 38 ELR 20175, reh gr, op withdrawn on other grounds (2008, CA FC) 30 BNA Intl Trade Rep 1873, 39 ELR 20304.

Environmental groups have standing to sue under 5 USCS § 702 to require EPA to comply with Endangered Species Act (16 USCS §§ 1531 et seq.), Migratory Bird Treaty Act (16 USCS §§ 703 et seq.), and Bald Eagle Protection Act (16 USCS §§ 668 et seq.), regarding registration of strychnine, where groups claim that EPA reversed, without adequate explanation or scientific support, its decision to ban most above-ground uses of strychnine, and that any continued registration will inevitably cause mortality to protected species, because groups therefore allege that EPA's conduct directly impairs their organizational purposes of study, enjoyment, and advancement of protected species. Defenders of Wildlife v Administrator, Environmental Protection Agency (1988, DC Minn) 688 F Supp 1334, 18 ELR 20960, affd in part and revd in part on other grounds (1989, CA8 Minn) 882 F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440.

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.

Procedural injuries suffered by members of environmental group owing to failure of U.S. Forest Service to consult with U.S. Fish and Wildlife Service before issuing livestock grazing permits within national forest in violation of 16 USCS § 1536(a) constituted injury-in-fact sufficient to give group standing to challenge Forest Service's action. Southwest Ctr. for Biological Diversity v United States Forest Serv. (2000, DC Ariz) 82 F Supp 2d 1070.

Environmental group was to join all absent water contractors if they sought to invalidate, rescind, or enjoin Bureau of Reclamation's performance under water service contracts, and if group sought to proceed under 16 USCS § 1536(d) for violations occurring since reinitiation of consultation, they had to send new 60-day intent to sue. NRDC v Kempthorne (2008, ED Cal) 539 F Supp 2d 1155, motion den, as moot (2008, ED Cal) 2008 US Dist LEXIS 53589, findings of fact/conclusions of law, motion gr (2008, ED Cal) 2008 US Dist LEXIS 72662, motions ruled upon, summary judgment gr, in part, summary judgment den (2008, ED Cal) 69 Envt Rep Cas 1095, Certificate of appealability denied, motion den (2009, ED Cal) 2009 US Dist LEXIS 15031, request gr (2009, ED Cal) 2009 US Dist LEXIS 25030.

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

50.----Ripeness; mootness

Suit brought by environmental and commercial fishing organizations charging that federal agencies operating Columbia River Power System violated 16 USCS § 1536 in deciding to move juvenile salmon downstream in trucks and barges in order to avoid determination that System jeopardized existence of salmon, was moot where challenge was to superseded biological opinion. American Rivers v National Marine Fisheries Serv. (1997, CA9 Or) 109 F3d 1484, 97 CDOS 2483, 97 Daily Journal DAR 4405, 44 Envt Rep Cas 1920, 27 ELR 20967, amd, remanded, request den (1997, CA9 Or) 126 F3d 1118, 97 CDOS 7390, 97 Daily Journal DAR 11916, appeal after remand, remanded without op (1999, CA9 Or) 168 F3d 497, reported in full (1999, CA9 Or) 1999 US App LEXIS 2132 and (ovrld in part as stated in Kern County Farm Bureau v Badgley (2002, ED Cal) 2002 US Dist LEXIS 24125).

Fish and Wildlife Service's (FWS) voluntary decision to reintroduce Northern Aplomado Falcon to undeveloped desert grassland located on New Mexico mesa, which Bureau of Land Management (BLM) planned to open up for oil and gas development (plan area), mooted environmental groups' Endangered Species Act (ESA) challenge to consultation process between BLM and FWS regarding falcon; since promulgation of reintroduction rule by FWS, falcon populations in plan area were classified as "experimental" under 16 USCS § 1539(j), and so formal consultation requirement of 16 USCS § 1536(a)(2) no longer applied to them; because, for consultation purposes, BLM and FWS operated as different actors, each with its own goals and responsibilities, and it was FWS that decided reintroduce and reclassify falcon, there was no apparent attempt by BLM to alter its conduct and thereby evade judicial review; therefore, no exception to mootness doctrine applied, and portion of district court's decision disposing of environmental groups' ESA challenge was vacated as moot. N.M. ex rel. Richardson v BLM (2009, CA10 NM) 565 F3d 683, 68 Envt Rep Cas 2031, 39 ELR 20101, 170 OGR 477.

Environmental groups' challenge to actions of Forest Service and Bureau of Land Management regarding oil and gas leases in Wyoming is not yet ripe, even though they contend agencies have not fulfilled their responsibilities under 16 USCS § 1536 to consider leases' effects on threatened grizzly bear, where agencies have only reached fifth step in 8-step process leading to development of leases, which are currently withdrawn, because court need not and cannot consider whether agencies complied fully with § 1536. Wyo. Outdoor Council v Dombeck (2001, DC Dist Col) 148 F Supp 2d 1, 153 OGR 591.

Where 2003 Atlantic Sea Scallop fishery management plan (FMP) was adopted, but new biological opinion and amendment to Atlantic Sea Scallop FMP was completed in 2004 based upon new information about condition of scallop fishery and its impact on sea turtles, organization's challenge to 2003 framework and its accompanying biological opinion was moot because they were superseded by 2004 biological opinion and amendment. Oceana, Inc. v Evans (2004, DC Mass) 59 Envt Rep Cas 1281.

Challenging federal officials' issuance of permits allowing field tests of genetically engineered crops, several organizations sued officials for alleged violations of National Environmental Policy Act, 42 USCS §§ 4321 et seq.; § 7(a)(2) of Endangered Species Act, found at 16 USCS § 1536(a)(2); Plant Protection Act, 7 USCS §§ 7711 et seq.; where challenged permits expired after one year, and officials stated that they were likely to issue such permits in future for field tests at same locations as challenged permits, and in addition to seeking declaratory and injunctive relief regarding permits, organizations sought any other relief court deemed appropriate, organizations' claims fell within "capable of repetition yet evading review" exception to mootness doctrine; thus, court declined to dismiss lawsuit under Fed. R. Civ. P. 12(b)(1). Ctr. for Food Safety v Veneman (2005, DC Hawaii) 364 F Supp 2d 1202, 60 Envt Rep Cas 1313.

51.----Standards of review

In reviewing agency's compliance with 16 USCS § 1536, court must apply standards set out in 5 USCS § 706(2)(A); it must be determined whether agency based its decision on consideration of relevant factors and whether decision was arbitrary, capricious, abuse of discretion or otherwise not in accordance with law. Thomas v Peterson (1984, DC Idaho) 589 F Supp 1139, 21 Envt Rep Cas 1275, 14 ELR 20832, affd in part and revd in part on other grounds, remanded (1985, CA9 Idaho) 753 F2d 754, 22 Envt Rep Cas 1608, 15 ELR 20225 (criticized in Bennett v Plenert (1993, DC Or) 1993 US Dist LEXIS 21199).

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 (FLPMA), and APA, failure to comply with requirements of valid Incidental Take Statement (ITS) rendered U.S. Fish and Wildlife Service's issuance of ITS arbitrary and capricious; neither surrogate language, nor reporting and consulting requirement contained in T&C 4.1, satisfied Service's obligations under ESA to provide meaningful standard for measuring take. 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 (ESA), NEPA, Federal Land Policy and Management Act of 1976 (FLPMA), and APA, U.S. Fish and Wildlife Service's failure to include any Terms and Conditions implementing "Reasonable and Prudent Measure" 3 with respect to minimizing take from recreational use in general, and off-highway vehicle use in particular, violated plain language of ESA, and was therefore arbitrary and capricious. 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, by finding that there were no additional regulatory benefits to be gained by designating critical habitat in areas that were ultimately excluded, Service improperly ignored recovery goal of critical habitat; because Service's conclusion that benefits of exclusion outweighed benefits of inclusion was based on erroneous conclusion of law, it was arbitrary and capricious. Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115, judgment entered (2006, ND Cal) 2006 US Dist LEXIS 73668.

52.----Particular determinations

In action in which environmental organizations filed suit against defendants, Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service, alleging violations of Endangered Species Act (ESA), NEPA, Federal Land Policy and Management Act of 1976 (FLPMA), and APA, "no jeopardy" finding must be set aside; allowing significant declines in population of already-threatened species before instituting any mitigating measures to address decline violated requirement under ESA to "insure" that Imperial Sand Dunes Recreation Area's 2003 Recreation Area Management Plan was not likely to jeopardize continued existence of any threatened species. 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 (FLPMA), and APA, U.S. Fish and Wildlife Service's "no adverse modification" conclusion was unsupported because Service failed to explain how "continued and expanded habitat degradation" of almost half of designated critical habitat did not result in "adverse modification" to milk-vetch critical habitat. Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115, judgment entered (2006, ND Cal) 2006 US Dist LEXIS 73668.

Operation of new nation-wide grazing regulations, 43 CFR pt 4100, was enjoined under Endangered Species Act (ESA) until Bureau of Land Management (BLM) had completed consultation with Fish and Wildlife Service and evaluation under ESA that was required by 16 USCS § 1536(b). 538 F. Supp. 2d 1302; 2007 U.S. Dist. LEXIS 41973; 65 ERC (BNA) 1870; 37 ELR 20147.

53.------Fish; fishing

District court's factual findings were not clearly erroneous where record supported district court's conclusion that loach minnow was not likely to be harmed during consultation period, where there was no irreversible commitment of resources that would foreclose reasonable and prudent alternatives should these be suggested in biological opinion at conclusion of consultation, and where instant court held that livestock grazing was flexible and could be altered during process if necessary. Southwest Ctr. for Biological Diversity v United States Forest Serv. (2002, CA9 Ariz) 307 F3d 964, 2002 CDOS 10101, 2002 Daily Journal DAR 11530, 55 Envt Rep Cas 1193, 33 ELR 20061, op withdrawn on other grounds (2004, CA9) 355 F3d 1203, 57 Envt Rep Cas 1960.

In action in which trade fishery association sought to set aside regulations and biological opinion issued by National Marine Fisheries Service and Secretary of Commerce affecting Fishery Management Plan for Western Pacific Region, court found that defendants' action under Endangered Species Act, 16 USCS §§ 1531 et seq., in promulgating June 2002 Regulations was arbitrary, capricious, and contrary to law where defendants failed to explain how unlawful biological opinion provided any legal basis for continued application of June 2002 Regulations. Haw. Longline Ass'n v Nat'l Marine Fisheries Serv. (2003, DC Dist Col) 281 F Supp 2d 1, 57 Envt Rep Cas 1581.

Plaintiffs, water authority and others, had shown likelihood of success on merits of their Endangered Species Act (ESA) claim because (1) United States Fish and Wildlife Service (FWS) failed to adequately justify by generally recognized scientific principles precise flow prescriptions imposed by component of reasonable and prudent alternative (RPA) set forth in FWS's biological opinion, which addressed impacts of coordinated operations of federal project and state project on threatened delta smelt; (2) defendants, FWS and others, acted arbitrarily and capriciously in formulating component, which lacked factual and scientific justification, while effectively ignoring irreparable harm that pumping restrictions inflicted on humans and human environment; and (3) defendants failed to comprehensively and competently evaluate whether RPA alternatives could have been prescribed that would have been mutually protective of all statutory purposes of projects; injunctive relief may have been warranted under ESA because, although general premises underlying component found some support in record, precise flow prescriptions imposed on coordinated project operations were not supported by best available science and were not explained as law required. Consol. Delta Smelt Cases (2010, ED Cal) 717 F Supp 2d 1021 1:09-cv-00631-OWW-DLB; 1:09-cv-00892-OWW-DLB.

54.------Mammals

Fish and Wildlife Service conservation program for gray wolf satisfied 16 USCS § 1536(a)(1) because it implemented specific and concrete conservation and recovery programs for wolf, including reintroduction of wolf in Northern Rockies. Defenders of Wildlife v Sec'y, United States DOI (2005, DC Or) 354 F Supp 2d 1156, 35 ELR 20033.

With respect to alliance's accusation that U.S. Forest Service failed to show that compliance with forage utilization standard actually protected mouse or its habitat as required under § 7 of Endangered Species Act, 16 USCS § 1536(a)(2), U.S. Forest Service's use of allotment-level utilization measurements was neither arbitrary nor capricious under Administrative Procedure Act, 5 USCS §§ 701 et seq.; moreover, U.S. Forest Service's reliance on "other indicators of riparian health" as well as photopoint data in its decision to measure at allotment rather than key area level satisfied U.;S. Forest Service's burden to supply reasoned analysis for any change in policy. Ctr. for Native Ecosystems v Cables (2006, DC Colo) 61 Envt Rep Cas 2049, affd (2007, CA10 Colo) 509 F3d 1310, 65 Envt Rep Cas 1833, 37 ELR 20311.

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.

55.------Plants

There was no support in agency record for association's notion that Department of Agriculture Animal and Plant Health Inspection Service's (APHIS) failure to address Hawaii's "unique ecology" meant that APHIS did not consider best scientific and commercial data during its consultations with Department of Interior's Fish and Wildlife Service (FWS) during APHIS's promulgation of 2004 final rule that added Taiwanese Phalaenopsis orchids to list of plants covered by plants-in-growing-media rule, 7 C.F.R. § 319.37-8(e), which allowed imports, in this case to Hawaii, with number of restrictions, or that APHIS's exclusion of exotic ant species not present or widely distributed on Hawaiian Islands had any bearing on consultation process. Hawai'i Orchid Growers Ass'n v United States Dep't of Agric. (2006, DC Dist Col) 436 F Supp 2d 45, 63 Envt Rep Cas 1410, affd (2007, App DC) 249 Fed Appx 204, 65 Envt Rep Cas 2062.

Department of Agriculture Animal and Plant Health Inspection Service (APHIS) did not act arbitrarily, capriciously, or unlawfully in promulgating new rule adding Taiwanese Phalaenopsis orchids to list of plants covered by plants-in-growing-media rule, 7 C.F.R. § 319.37-8(e), which allowed imports, in this case to Hawaii, with number of restrictions, because administrative record demonstrated that (1) APHIS and FWS discussed issue of thrips, pests known to be associated with Phalaenopsis plants in Taiwan and assessed risks posed by those pests at several points during Endangered Species Act (ESA) consultation; and (2) APHIS and FWS considered risks posed by importation of plants in approved growing media, and discussed those risks during ESA consultation. Hawai'i Orchid Growers Ass'n v United States Dep't of Agric. (2006, DC Dist Col) 436 F Supp 2d 45, 63 Envt Rep Cas 1410, affd (2007, App DC) 249 Fed Appx 204, 65 Envt Rep Cas 2062.

56. Miscellaneous

EPA lacked statutory authority to impose requirement that state, in administering and issuing permits under its pollution discharge elimination system, consult with and obtain approval of Fish and Wildlife Service and National Marine Fisheries Service or face EPA's veto of any permit to which Services objected. American Forest & Paper Ass'n v United States EPA (1998, CA5) 137 F3d 291, 46 Envt Rep Cas 1385, 28 ELR 21122 (criticized in Defenders of Wildlife v United States EPA (2005, CA9) 420 F3d 946, 60 Envt Rep Cas 2025, 35 ELR 20172).

While under Endangered Species Act (ESA), each agency was to use best scientific and commercial data available to ensure protection of any endangered or protected species as required by 16 USCS § 1536(a)(2), ESA only required defendant U.S. Army Corps of Engineers to seek and consider relevant existing scientific evidence; proceeding with imperfect information was given deference, and since construction work in connection with water plan was not dependent on new structures, there was no violation of § 1536(a)(2). Miccosukee Tribe of Indians v United States (2006, SD Fla) 420 F Supp 2d 1324, 62 Envt Rep Cas 1783, 19 FLW Fed D 412, injunction den, motion den (2007, SD Fla) 509 F Supp 2d 1288, 37 ELR 20196.

Plaintiff environmental and fishing organizations' motion for summary judgment as to the United States Bureau of Reclamation's alleged violation of 16 USCS § 7(d) was denied; Bureau's cross-motion was granted on the condition that the federal defendants continued to take no actions during reconsultation that made any irreversible or irretrievable commitment of resources which foreclosed the formulation or implementation of reasonable and prudent alternative measures. Pac. Coast Fed'n of Fishermen's Ass'n v Gutierrez (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.

In certificate proceeding under § 7(c) of Natural Gas Act (15 USCS § 717f(c)), mitigation measures that had been recommended in final supplemental environmental impact statement at request of Fish and Wildlife Service put projects in compliance with § 7 of Endangered Species Act (16 USCS § 1536). Mojave Pipeline Co. (1989) FERC Op No. 322, 46 CCH FERC P 61,029.

It was appropriate for USEPA Environmental Appeals Board to grant USEPA Region's motion for voluntary remand of final prevention of significant deterioration permit, which permit authorized construction of new coal-fired electric generating facility, where Region had issued permit with condition essentially declaring that Endangered Species Act requirements had not been met at time permit was issued, with intention of relying on future permit modifications to fix or re-do permit if changes were found to be necessary. In re: Desert Rock Energy Company, LLC (USEPA Environmental Appeals Board, Sept. 24, 2009) 2009 EPA App. LEXIS 28.

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TITLE 16. CONSERVATION

CHAPTER 35. ENDANGERED SPECIES

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16 USCS § 1537