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- Bu səhifədəki naviqasiya:
- HISTORY; ANCILLARY LAWS AND DIRECTIVES
- Effective date of amendments made by Act Oct. 13, 1982.
- 4. Applicability of Act to Native Americans
- 5.--Exemption for native Alaskans
- 6.----Applicability to native Hawaiians
- Go to the United States Code Service Archive Directory
HISTORY: (Dec. 28, 1973, P.L. 93-205, § 10, 87 Stat. 896; July 12, 1976, P.L. 94-359, §§ 2, 3, 90 Stat. 911, 912; Nov. 10, 1978, P.L. 95-632, § 5, 92 Stat. 3760; Dec. 28, 1979, P.L. 96-159, § 7, 93 Stat. 1230; Oct. 13, 1982, P.L. 97-304, § 6, 96 Stat. 1422; Oct. 7, 1988, P.L. 100-478, Title I, §§ 1011, 1013(b), (c), 102 Stat. 2314, 2315.) HISTORY; ANCILLARY LAWS AND DIRECTIVES References in text: "The effective date of this Act", referred to in this section, is the date of enactment of P.L. 93-205, 87 Stat. 884, which is Dec. 28, 1973. "Section 3 of the Act of December 5, 1969 (83 Stat. 275)", referred to in this section, is § 3 of Act Dec. 5, 1969, P.L. 91-135, 83 Stat. 275, which formerly appeared as 16 USCS § 668cc-3, and which was repealed by Act Dec. 28, 1973, P.L. 93-205, § 14, 87 Stat. 903. "This Act" and "the Act", referred to in this section, is Act Dec. 28, 1973, P.L. 93-205, 87 Stat. 884, which appears generally as 16 USCS §§ 1531 et seq. For full classification of this Act, consult USCS Tables volumes. "Pre-Act", referred to in this section, means the period prior to the effective date of the Endangered Species Act of 1973, Act Dec. 28, 1973, P.L. 93-205, 87 Stat. 884, which is Dec. 28, 1973. "Section 4(f)(2)(A)(i) of this Act", referred to in this section, is § 4(f)(2)(A)(i) of Act Dec. 28, 1973, P.L. 93-205, 87 Stat. 886, relating to promulgation of regulations by the Secretary, which formerly appeared as subsec. (f) of 16 USCS § 1533 and which was deleted by Act Oct. 13, 1982, P.L. 97-304, § 2(a)(4)(B), (C), 96 Stat. 1415, which also redesignated subsec. (g) of such section as subsec. (f). For similar provisions, see subsecs. (b) and (h) of 16 USCS § 1533. "The effective date of this subsection", referred to in this section, is probably the date of enactment of P.L. 94-359, 90 Stat. 911, which is July 12, 1976. Explanatory notes: The bracketed word "of" is inserted in subsec. (c) to indicate the probable intent of Congress to include such word. Brackets have been inserted around the cl. (i) designator in subsec. (f)(8)(A) of this section as no cl. (ii) has been enacted. Effective date of section: This section is effective on the date of its enactment on Dec. 28, 1973, as provided by Act Dec. 28, 1973, P.L. 93-205, § 16, 87 Stat. 903, which appears as 16 USCS § 1531 note. Amendments: 1976. Act July 12, 1976, in subsec. (c), substituted "section" for "subsection", and inserted "; except that such thirty-day period may be waived by the Secretary in an emergency situation where the health or life of an endangered animal is threatened and no reasonable alternative is available to the applicant, but notice of any such waiver shall be published by the Secretary in the Federal Register within ten days following the issuance of the exemption or permit"; and added subsecs. (f) and (g). 1978. Act Nov. 10, 1978, added subsecs. (h) and (i). 1979. Act Dec. 28, 1979, in subsec. (f), in para. (4)(C), inserted "unless such exemption is renewed under paragraph (8)", and added para. (8). 1982. Oct. 13, 1982 (effective as provided by § 6(4)(B0 of such Act, which appears as a note to this section), in subsec. (h)(1), in the introductory matter, deleted "(other than scrimshaw)" following "to any article", and in subpara. (A), substituted "is not less than 100 years of age" for "was made before 1830". Such Act further (effective upon enactment on 10/13/82) substituted subsec. (a) for one which read: "The Secretary may permit, under such terms and conditions as he may prescribe, any act otherwise prohibited by section 9 of this Act for scientific purposes or to enhance the propagation or survival of the affected species."; in subsec. (d), substituted "subsections (a)(1)(A)" for "subsections (a)"; in subsec. (f), in para. (1)(B), inserted "substantial" each place it appears, added the sentence beginning "For purposes of this subsection, . . .", and added para. (9); and substituted subsec. (i) for one which read: "(1) Notwithstanding any other provision of this Act, the Committee shall, within 30 days of the date of the enactment of the Endangered Species Act Amendments of 1978, proceed to consider the exemption of the Tellico Dam and Reservoir Project and the Grayrocks Dam and Reservoir Project from the requirements of section 7(a). For the purposes of such consideration, the Committee shall grant an exemption to such projects if the criteria of section 7(h)(1)(A)(i) and 7(h)(1)(A)(ii) are met. A decision on any such exemption shall be made within 90 days after the date of the enactment of the Endangered Species Act Amendments of 1978. If no decision is made within such 90-day period, such project shall be deemed to be exempted from the requirements of section 7(a). "(2) Following the rendering of a biological opinion by the United States Fish and Wildlife Service concerning the effect, if any, of the operation of the Missouri Basin Power Project on endangered species or their critical habitat, the responsible officers of the Rural Electrification Administration, the Secretary of the Interior, and the Secretary of the Army, shall require such modifications in the operation or design of the project as they may determine are required to insure that actions authorized, funded, or carried out by them, relating to the Missouri Basin Power Project do not jeopardize the continued existence of such endangered species or result in the destruction or adverse modification of habitat of such species which is or has been determined to be critical by the Secretary of the Interior, after consultation as appropriate with the affected States.". Such Act further added subsec. (j). 1988. Act Oct. 7, 1988, in subsec. (c), substituted "notice of," for "notice,"; in subsec. (e)(3)(ii), substituted "lacing" for "lacking"; in subsec. (f), in para. (8), substituted subpara. (A) for one which read: "Any person to whom a certificate of exemption has been issued under paragraph (4) of this subsection may apply to the Secretary for a renewal of such exemption for a period not to exceed three years beginning on the expiration date of such certificate. Such application shall be made in the same manner as the application for exemption was made under paragraph (3), but without regard to subparagraph (A) of such paragraph.", and, in subpara. (B), substituted "previous" for "original", and added subpara. (D). Such Act further, in subsec. (f), deleted para. (9) which read: "(9)
(A) The Secretary shall carry out a comprehensive review of the effectiveness of the regulations prescribed pursuant to paragraph (5) of this subsection-- "(i) in insuring that pre-Act finished scrimshaw products, or the raw materials for such products, have been adequately accounted for and not disposed of contrary to the provisions of this Act; and "(ii) in preventing the commingling of unlawfully imported or acquired marine mammal products with such exempted products either by persons to whom certificates of exemption have been issued under paragraph (4) of this subsection or by subsequent purchasers from such persons. "(B) In conducting the review required under subparagraph (A), the Secretary shall consider, but not be limited to-- "(i) the adequacy of the reporting and records required of exemption holders; "(ii) the extent to which such reports and records are subject to verification; "(iii) methods for identifying individual pieces of scrimshaw products and raw materials and for preventing commingling of exempted materials from those not subject to such exemption; and "(iv) the retention of unworked materials in controlled-access storage. The Secretary shall submit a report of such review to the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committee on the Environment and Public Works of the Senate and make it available to the general public. Based on such review, the Secretary shall, on or before October 1, 1983, propose and adopt such revisions to such regulations as he deems necessary and appropriate to carry out this paragraph. Upon publication of such revised regulations, the Secretary may renew for a further period of not to exceed three years any certificate of exemption previously renewed under paragraph (8) of this subsection, subject to such new terms and conditions as are necessary and appropriate under the revised regulations; except that any certificate of exemption that would, but for this clause, expire on or after the date of enactment of this paragraph and before the date of the adoption of such regulations may be extended until such time after the date of adoption as may be necessary for purposes of applying such regulations to the certificate. Notwithstanding the foregoing, however, no person may, after January 31, 1984, sell or offer for sale in interstate or foreign commerce any pre-Act finished scrimshaw product unless such person has been issued a valid certificate of exemption by the Secretary under this subsection and unless such product or the raw material for such product was held by such person on the date of the enactment of this paragraph.". Transfer of functions: For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see 6 USCS §§ 203(1), 551(d), 552(d), and 557, and the Department of Homeland Security Reorganization Plan of November 25, 2002, which appears as 6 USCS § 542 note. Other provisions: Effective date of amendments made by Act Oct. 13, 1982. Act Oct. 13, 1982, P.L. 97-304, § 6(4)(B), 96 Stat. 1424, provided: "The amendment made by subparagraph (A) [amending subsec. (h)(1) of this section] shall take effect January 1, 1981.". Scrimshaw exemptions. Act April 30, 1994, P.L. 103-238, § 18, 108 Stat. 559, provides: "Notwithstanding any other provision of law, any valid certificate of exemption renewed by the Secretary (or deemed to be renewed) under section 10(f)(8) of the Endangered Species Act of 1973 (16 U.S.C. 1539(f)(8)) for any person holding such a certificate with respect to the possession of pre-Act finished scrimshaw products or raw material for such products shall remain valid for a period not to exceed 5 years beginning on the date of enactment of this Act.". NOTES: Code of Federal Regulations: United States Fish and Wildlife Service, Department of the Interior--General permit procedures, 50 CFR 13.1 et seq. Related Statutes & Rules: This section is referred to in 16 USCS §§ 471j, 1538, 6576. Research Guide: Federal Procedure: 24A Fed Proc L Ed, Natural and Marine Resources §§ 56:2074, 2105, 2132, 2139, 2152, 2337. Am Jur Proof of Facts: 89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125. Annotations: Construction and Application of United States Supreme Court Decision in Cunningham v. Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55 (1890), Establishing Standard for Supremacy Clause Immunity as to Actions of Federal Officers or Agents Alleged to Be in Violation of State. 53 ALR Fed 2d 269. Criminal prosecution under Endangered Species Act of 1973 (16 USCS §§ 1531-1543). 128 ALR Fed 271. Texts: 2 Environmental Law Practice Guide (Matthew Bender), ch 9A, Government Financing § 9A.02. 2A Environmental Law Practice Guide (Matthew Bender), ch 12C, Criminal Enforcement § 12C.03. 2A Environmental Law Practice Guide (Matthew Bender), ch 15A, Indian Country Environmental Law §§ 15A.02, 15A.08. 4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection §§ 24.03, 24.06, 24.07. 6 Environmental Law Practice Guide (Matthew Bender), ch 43, Alaska § 43.11. 6 Environmental Law Practice Guide (Matthew Bender), ch 46, California § 46.12. 5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04. Law Review Articles: Wolf. Dissecting the Information Quality Act: A Look at the Act's Effect on the Florida Panther and Evidentiary Science. 11 Alb L Envtl Outlook 89, 2006. Fischman; Hall-Rivera. A Lesson for Conservation from Pollution Control Law: Cooperative Federalism for Recovery under the Endangered Species Act. 27 Colum J Envtl L 45, 2002. Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species Act. 30 Envtl L 769, Fall 2000. Karkkainen. Default Rules in Private and Public Law: Extending Default Rules Beyond Purely Economic Relationships: Information-Forcing Environmental Regulation. 33 Fla St UL Rev 861, Spring 2006. Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January 1982. Gray. The Endangered Species Act: Reform or Refutation? 13 Hastings W-NW J Env L & Pol'y 1, Winter 2007. Klee; Mecham. The Nez Perce Indian Water Right Settlement-Federal Perspective. 42 Idaho L Rev 595, 2006. Strack. Pandora's Box or Golden Opportunity? Using the Settlement of Indian Reserved Water Right Claims to Affirm State Sovereignty Over Idaho Water and Promote Intergovernmental Cooperation. 42 Idaho L Rev 633, 2006. Cosens. Nez Perce Water Rights Settlement Article: Truth or Consequences: Settling Water Disputes in the Face of Uncertainty. 42 Idaho L Rev 717, 2006. Thornton. The search for a conservation planning paradigm: Section 10 of the ESA. 8 Nat Resources & Env't 21, Summer 1993. The exemption process under the Endangered Species Act: how the "god squad" works and why. 66 Notre Dame L Rev 825, 1991. Ruhl. Past, Present, and Future Trends of the Endangered Species Act. 25 Pub Land & Resources L Rev 15, 2004. Camacho. Can Regulation Evolve? Lessons From a Study in Maladaptive Management. 55 UCLA L Rev 293, December 2007. The concept of species and the Endangered Species Act. 11 Va Envtl LJ 463, Spring 1992. Interpretive Notes and Decisions: 1. Generally 2. Issuance of permits 3. Hardship exemptions 4. Applicability of Act to Native Americans 5.--Exemption for native Alaskans 6.----Applicability to native Hawaiians 7. Rulemaking procedure 8. Judicial review 9. Miscellaneous
Pursuant to 16 USCS § 1539(j), experimental populations are treated similarly to threatened species with some defined exceptions. 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. 2. Issuance of permits 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 violated 16 USCS § 1539(a)(2)(B) and (c) by not making map available to individual and environmental organization that had been submitted by residential developer in connection with incidental take permit for endangered fox squirrel. Gerber v Norton (2002, App DC) 352 US App DC 375, 294 F3d 173, 54 Envt Rep Cas 1737, 32 ELR 20767, reh den (2002, App DC) 2002 US App LEXIS 20118. Fish and Wildlife Service violated Endangered Species Act in issuing incidental take permit to residential developer without making finding that developer's plan would have minimized negative impacts on endangered fox squirrel to maximum extent practicable as required by 16 USCS § 1539(a)(2)(B)(ii). Gerber v Norton (2002, App DC) 352 US App DC 375, 294 F3d 173, 54 Envt Rep Cas 1737, 32 ELR 20767, reh den (2002, App DC) 2002 US App LEXIS 20118. Property owners' claim for alleged administrative taking of value of trees they sought to harvest was held to be unripe where owners had never applied for incidental take permit and government had never taken final action. Morris v United States (2004, CA FC) 392 F3d 1372, 59 Envt Rep Cas 1641, 34 ELR 20156. 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. Incidental take permit issued by Interior Secretary and Fish and Wildlife Service will not be disturbed, even though it is shown that "urban glow" of artificial beachfront lighting and vehicular traffic on beach somewhat disturb nesting sea turtles, because voluminous administrative record contains requisite support for decision to approve county's habitat conservation plan and permit, and refusal to revoke permit or reinitiate consultation. Loggerhead Turtle v County Council (2000, MD Fla) 120 F Supp 2d 1005, magistrate's recommendation, costs/fees proceeding (2001, MD Fla) 2001 US Dist LEXIS 2611, subsequent app (2002, CA11 Fla) 307 F3d 1318, 55 Envt Rep Cas 1161, 33 ELR 20057, 15 FLW Fed C 1104, related proceeding, dismd on other grounds, dismd without prejudice, in part (2005, MD Fla) 2005 US Dist LEXIS 38841, vacated, remanded (Jan 18, 2006) and (overruled on other grounds as stated in Dillard v Colbert County Comm'n (2007, MD Ala) 494 F Supp 2d 1297). Environmental groups' challenge to Fish and Wildlife Service's approval of habitat conservation plan must fail, to extent they argue plan does not adequately disclose impacts on covered species and their habitat, where plan does discuss impact that will likely result from development activities, rice farming, and operation of water conveyance systems in basin, and make general assessments of affect of development on various species, especially endangered giant garter snake and Swainson's hawk, because precise quantitative measures of take are not required for compliance with 16 USCS § 1539(a)(2)(A). National Wildlife Fed'n v Babbitt (2000, ED Cal) 128 F Supp 2d 1274. Plan for mitigation of incidental taking of endangered species was upheld where Fish and Wildlife Service could rationally conclude that plan would improve habitat and enhance survival of species alleged to be at risk. Nat'l Wildlife Fed'n v Norton (2004, ED Cal) 306 F Supp 2d 920, 58 Envt Rep Cas 1618. In case under Endangered Species Act (ESA), U.S. Fish and Wildlife Service (FWS) grant to city of incidental take permit (ITP) under ESA § 10, 16 USCS § 1539(a)(1)(B), was arbitrary and capricious pursuant to 5 USCS § 706(2)(A), as it appeared that ITP would permit destruction of seven vernal pool species, and finding that city would fund its part of conservation plan was unsupported pursuant to 16 USCS § 1539(a)(2)(B)(iii); thus, pursuant to 16 USCS § 1539(a)(2)(C), FWS was ordered to reinitiate consultation proceedings on ITP as avenue of seeking permits from U.S. Army Corps of Engineers pursuant to § 404(a) of Clean Water Act, 33 USCS § 1344(a)--wherein Corps would consult with FWS to establish mitigation measures pursuant to § 7 of ESA, 16 USCS § 1536--was no longer available and remaining conservation measures were inadequate; FWS conceded that it did not anticipate any impact on species, but, rather, it expected to evaluate any impact in future permit procedures, and that structure violated ESA because FWS locked in any mitigation that could be recommended or required to measures that were delineated in city's plan--very plan that FWS did not assess. 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. 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 with city to complete proposed project, argument waged by intervening builders that FWS was required to issue ITP that corresponded exactly to take that was proposed in city's habitat conservation plan failed. Characterizing FWS' duty as ministerial task violated Endangered Species Act, 16 USCS §§ 1531-1544, by eliminating FWS' duty to use its expertise to restrict impact of proposed project on listed species; no one was entitled to take authorization, and application did not define ITP but, rather, FWS determined terms and conditions under which applicant obtained exception to § 9 of ESA, 16 USCS § 1538. 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. Although issuance of incidental take permit pursuant to 16 USCS § 1539(a)(1)(B) was arbitrary, U.S. Fish and Wildlife Service (FWS) properly independently considered and evaluated more protective alternative pursuant to § 1539(a)(2)(B)(ii) and did not err in considering cost in its decision to reject alternative because it was more expensive than proposed plan; moreover, FWS properly characterized preserve that was negotiated under planning process as being larger than biologically preferred scenario; thus, there was rational basis for its decision not to select biologically preferred alternative. 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. Animal rights organization were not authorized to bring citizen suit through § 11(g) of Endangered Species Act, 16 USCS § 1540(g), to enforce terms of captive-bred wildlife permit, issued under 16 USCS § 1539(a)(1)(A), for circus owner's Asian elephants because Congress determined that only government, through Secretary of Interior, could bring actions for violations of permit issued by U.S. Fish and Wildlife services. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas 1243. Because 16 USCS § 1539(a)(2) required agencies to make specific findings before issuing incidental take permits (ITP), such as that doing so was not likely to jeopardize continued existence of any listed species or result in destruction or adverse modification of habitat of such species under 16 USCS § 1532(a)(2), it was appropriate to presume agencies would faithfully execute their duties and apply no-jeopardy standard when issuing ITP; thus, challenge of plaintiff Native American and environmental organizations against defendants, Secretaries of Departments of Interior and Commerce, 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. Because 16 USCS § 1539(a)(2)(C) mandated revocation for failing to abide by incidental taking permit's (ITP) conditions, but did not require revocation due to threat to species' recovery, it was clear that Endangered Species Act did not require ITPs to promote or even maintain recovery of listed species and, thus, Permit Revocation Rule, 50 C.F.R. § 17.32(b), did not fail under Chevron step one on challenge by plaintiff Native American and environmental organizations against defendants, Secretaries of Departments of Interior and Commerce. Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235. 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 state 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). Plaintiffs were not entitled to order that Commissioner of Maine Department of Inland Fisheries and Wildlife prepare and file application for incidental take permit with United States Fish and Wildlife Service with completed habitat conservation plan because it appeared that application in process contained habitat conservation plan as required by 16 USCS § 1539(a)(2). 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. Conservation groups were entitled to summary judgment where federal agencies' biological opinions granting incidental take permits to gravel mining company under 16 USCS §§ 1536(a)(2) and 1539(a)(1) were arbitrary and capricious under 5 USCS § 706(2)(A) because they ignored company's preexisting reclamation obligations under Wash. Rev. Code § 78.44.111; federal agencies should have considered company's state obligations in its starting baseline for determining environmental effect of additional mining because state obligations were not too hypothetical to be included in baseline. Friends of the East Fork, Inc. v Thom (2010, WD Wash) 688 F Supp 2d 1245, 71 Envt Rep Cas 1882, 40 ELR 20063. 3. Hardship exemptions Since predecessor statute had only banned importation of endangered species, hardship exemption issued under that statute might exempt recipient's successor from sanctions under Endangered Species Act of 1973 for importation of endangered species or parts thereof, but not from sanctions or other acts forbidden under 1973 Act such as selling animals or parts thereof in interstate commerce. Delbay Pharmaceuticals, Inc. v Department of Commerce (1976, DC Dist Col) 409 F Supp 637, 6 ELR 20211. 4. Applicability of Act to Native Americans Indian hunting and fishing rights, created by treaty or otherwise, do not include right to take species which have been listed as threatened or endangered pursuant to Endangered Species Act of 1973 (16 USCS §§ 1531 et seq.). Application of the Endangered Species Act to Native Americans with Treaty Hunting and Fishing Rights (1980) 87 ID 525. 5.--Exemption for native Alaskans Secretary of State cannot be compelled by court action to formally object to International Whaling Commission decision banning Eskimo hunting of bowhead whale since objection, if made, would substantially endanger interests of United States and judicial action is unwarranted intrusion on executive discretion in field of foreign policy and agreements. Adams v Vance (1978, App DC) 187 US App DC 41, 570 F2d 950, 11 Envt Rep Cas 1113, 8 ELR 20160. Every statute and treaty designed to protect animals or birds has specific exemption for Native Alaskans who hunt species for subsistence purposes and these statutes have been construed as specifically imposing on Federal government trust responsibility to protect Alaskan Natives' rights of subsistence hunting and such interpretation is consistent with legislative history underlying enactment of those statutes. North Slope Borough v Andrus (1980, DC Dist Col) 486 F Supp 332, 13 Envt Rep Cas 2169, 10 ELR 20115, vacated, in part on other grounds (1980, App DC) 14 Envt Rep Cas 1846 and affd in part and revd in part on other grounds (1980, App DC) 206 US App DC 184, 642 F2d 589, 15 Envt Rep Cas 1633, 10 ELR 20832 (criticized in Conner v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379).
Native Hawaiian's conviction for taking endangered green sea turtles is upheld, where Hawaiian argues for "aboriginal right" to hunt turtles, or that 16 USCS § 1539(e) exemption for "Alaska natives" is violation of equal protection, because (1) there is no aboriginal right to hunt endangered species, and (2) exemption for Alaska natives only is rational since dependence on turtles for subsistence is valid in remote Alaska but not in Hawaii where conventional food sources are more readily available--extension of exemption to include native Hawaiians has been specifically considered and rejected by National Marine Fisheries Service. United States v Nuesca (1990, DC Hawaii) 773 F Supp 1388, affd (1991, CA9 Hawaii) 945 F2d 254, 91 CDOS 7480, 91 Daily Journal DAR 11459, 34 Envt Rep Cas 1394. Native Hawaiian is not entitled to dismissal of indictment charging him with taking endangered monk seal, despite his claim that he planned to eat monk seal taken and that he makes his living as subsistence hunter and fisherman gathering from valleys and oceans, because it was rational for Congress to conclude in 16 USCS § 1539(e) that, in general, native Alaskans rely on certain endangered and threatened species for subsistence purposes and need exemption from prohibition of their taking, while, in general, native Hawaiians do not. United States v Kaneholani (1990, DC Hawaii) 773 F Supp 1393, affd sub nom United States v Nuesca (1991, CA9 Hawaii) 945 F2d 254, 91 CDOS 7480, 91 Daily Journal DAR 11459, 34 Envt Rep Cas 1394.
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. Allegations that federal officials never "consulted" with "affected private landowners" regarding promulgation and implementation of plan for reintroducing gray wolves to central Idaho are faulty, where record contains substantial evidence of such consultation, ranging from public hearings to specific meetings with private groups to exchanges of written correspondence, because neither language of regulations nor legislative history behind enactment of 16 USCS § 1539(j) supports finding that Fish and Wildlife Service is required to obtain approval and "agreement" from persons holding any interest in land which may be affected before enacting experimental population rules. Wyoming Farm Bureau Fed'n v Babbitt (1997, DC Wyo) 987 F Supp 1349, 46 Envt Rep Cas 1516, revd on other grounds, vacated, remanded (2000, CA10 Wyo) 199 F3d 1224, 49 Envt Rep Cas 1985, 2000 Colo J C A R 434, 30 ELR 20289. Fish and Wildlife Service's protocols for determining presence of quino checkerspot butterfly were not "rules" under Administrative Procedure Act because protocols could not form basis for liability; liability for butterfly "taking" could only be based on proof that "taking" prohibition under Endangered Species Act was violated. Nat'l Ass'n of Home Builders v Norton (2003, DC Dist Col) 298 F Supp 2d 68, 58 Envt Rep Cas 1455, affd (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep Cas 2121, 35 ELR 20143. Fish and Wildlife Service's protocols for determining presence of quino checkerspot butterfly were not "rules" under Administrative Procedure Act where home builders that brought suit challenging protocols failed to show that any reliance on protocols by state or local authorities in local land use permitting process was product of federal requirement. Nat'l Ass'n of Home Builders v Norton (2003, DC Dist Col) 298 F Supp 2d 68, 58 Envt Rep Cas 1455, affd (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep Cas 2121, 35 ELR 20143. In action by plaintiff environmental groups against defendants, Department of Interior, its Fish and Wildlife Service, and their officials, because text, context, purpose and legislative history of 16 USCS § 1539(c) showed that Congress intended exemptions and permits to be issued on case-by-case basis after application and public consideration, new Rule's blanket exception for all persons breeding three antelope species in captivity was not in accordance with law under 5 USCS § 706(2). Friends of Animals v Salazar (2009, DC Dist Col) 626 F Supp 2d 102, 39 ELR 20134, app dismd, motion gr, motion to strike den, stay den, as moot (2010, App DC) 2010 US App LEXIS 10338. 8. 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. Because methods employed by Army Corps of Engineers to help migrating salmon, including surface transportation of juvenile salmon and river flow improvement measures, are not "connected actions", government's exclusion of transportation method from scope of environmental impact statement was not final agency action subject to review. Northwest Resource Info. Ctr. v National Marine Fisheries Serv. (1995, CA9 Or) 56 F3d 1060, 95 CDOS 4058, 40 Envt Rep Cas 1996. Challenges to 1993 decision by Bonneville Power Administration with respect to water management actions in Columbia River System for benefit of Snake River salmon are moot, where challenged flow augmentation measures have already occurred, 1993 management action plan has expired, and factual underpinnings of plan have been superseded, and where Administration's current actions are being taken pursuant to new management action plan. Idaho Dep't of Fish & Game v National Marine Fisheries Serv. (1995, CA9 Or) 56 F3d 1071, 95 CDOS 4049, 40 Envt Rep Cas 2005. Claim by Pacific Northwest Generating Cooperative that National Marine Fisheries Service's 2-step jeopardy analysis had no foundation in Endangered Species Act and created excessively strict standard for determining whether operations of hydropower system jeopardized salmon were moot, where biological opinion evaluating effects of action was of short duration and followed opinion of 4-year duration; claimants thus had more than enough time to obtain judicial review and their claims do not evade review. Idaho Dep't of Fish & Game v National Marine Fisheries Serv. (1995, CA9 Or) 56 F3d 1071, 95 CDOS 4049, 40 Envt Rep Cas 2005. 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 to 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. Injunction prohibiting taking of gray wolves involved in depredation of livestock in Wisconsin pursuant to permits issued under Endangered Species Act, 16 USCS § 1539(a)(1)(A), was vacated because Fish and Wildlife Services' (FWS) delisting of wolves as endangered or threatened during pendency of appeal was not attributed to voluntary actions by private hunting clubs that had intervened as of right under Fed. R. Civ. P. 24(a)(2) to ensure that their interests were adequately represented; therefore, FWS's delisting decision was not subject to voluntary action exception to mootness doctrine embodied in Bancorp rule because vacatur was in order, mootness having occurred through happenstance. Humane Soc'y of the United States v Kempthorne (2008, App DC) 381 US App DC 230, 527 F3d 181, 66 Envt Rep Cas 1865, 38 ELR 20134. U.S. Forest Service's Texas Red-Cockaded Woodpecker Plan was approved because it provided for particular approach to forest and habitat management for woodpecker that was not arbitrarily based on administrative record and best available science; while there might be legitimate disagreements among scientists on particular methods of accomplishing objective in plan, that disagreement did not mean Forest Service acted arbitrarily when it chose among competing alternatives. Sierra Club v Veneman (2003, ED Tex) 273 F Supp 2d 764. Where home builders failed to show that they had been subjected to adverse action as result of Fish and Wildlife Service's protocols (which district court determined were not "rules" under Administrative Procedure Act) for determining presence of quino checkerspot butterfly, matter was not ripe for litigation because no facts had been developed to resolve issue and home builders lacked standing for failure to show any injury. Nat'l Ass'n of Home Builders v Norton (2003, DC Dist Col) 298 F Supp 2d 68, 58 Envt Rep Cas 1455, affd (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep Cas 2121, 35 ELR 20143. U.S. Fish and Wildlife Service had to re-initiate consultation proceedings on city's incidental taking permit because avenue of seeking permits from U.S. Army Corps of Engineers was no longer available for vernal pools, and remaining conservation measures were inadequate to protect fragile species under Endangered Species Act. Southwest Ctr. for Biological Diversity v Bartel (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. Lethal taking of endangered species for depredation control purposes violates and exceeds scope of scientific take exception under 16 USCS § 1539(a)(1)(A); thus, U.S. Fish and Wildlife Service acted contrary to § 1539(a)(1)(A) and 16 USCS § 1538(a)(1)(B) when it granted permit allowing lethal depredation control program of endangered gray wolves; preliminary injunction was proper under Fed. R. Civ. P. 65(a) where associations showed substantial likelihood of success on merits, irreparable harm, and balance in favor of protected species. Humane Soc'y of the United States v Kempthorne (2006, DC Dist Col) 481 F Supp 2d 53, decision reached on appeal by (2008, App DC) 381 US App DC 230, 527 F3d 181, 66 Envt Rep Cas 1865, 38 ELR 20134. Where organization filed rule-making petition and alleged that federal agencies violated Administrative Procedure Act by failing to amend regulation pursuant to Endangered Species Act, agencies' letter to organization rendered its claim moot because complaint requested relief in form of final, judicially-reviewable decision regarding its petition, and organization received defendants' final, judicially-reviewable decision in letter. Ctr. for Biological Diversity v Kempthorne (2007, DC Dist Col) 498 F Supp 2d 293, 65 Envt Rep Cas 2040.
While minimizing water quality changes was deemed necessary measure for tidewater goby, Fish & Wildlife Service (FWS) did not supply condition on implementing it, thus FWS submitted inadequate incidental take statement under 16 USCS § 1536(b)(4) and plaintiff water district was granted summary judgment as to permit to county and state agency to breach sand bar separating two lakes from Pacific Ocean issued by Army Corps of Engineers; in failing to include required term and condition, FWS has ignored plain language of Endangered Species Act and also removed Administrator of EPA's ability to revoke permit for noncompliance under 16 USCS § 1539(a)(2)(C), thus, Corps' reliance on FWS' legally inadequate incidental take statement was arbitrary and capricious under 5 USCS § 706(2)(A). Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F Supp 2d 242. 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. Where landowners, who claimed that restriction imposed on them by National Marine Fisheries Service (NMFS), pursuant to Endangered Species Act (ESA), 16 USCS §§ 1531-1544, was taking of private property for public use without just compensation in violation of U.S. Const. amend V, had not filed incidental take permit in order to receive permission to cut down trees on their property, their takings claim was not yet ripe, and government's motion for judgment on pleadings was granted. Morris v United States (2003) 58 Fed Cl 95, 57 Envt Rep Cas 1518, affd (2004, CA FC) 392 F3d 1372, 59 Envt Rep Cas 1641, 34 ELR 20156. 9. Miscellaneous Substantial evidence supported Fish and Wildlife Service's (FWS) finding under 16 USCS § 1539(j) that area where captive-bred endangered falcons were to be released in New Mexico was wholly separate geographically from existing falcon population in Mexico; FWS found that one breeding pair and individual falcons seen in New Mexico did not constitute population and that falcons in New Mexico were too distant from Mexican population to form part of that population. Forest Guardians v United States Fish & Wildlife Serv. (2010, CA10 NM) 611 F3d 692. Environmental organization was not entitled to relief enjoining United States Fish and Wildlife Service (FWS) from capturing and removing from wild habitat all California condors, since FWS's decision to place wild condors in captivity, which represented policy change, was not arbitrary and capricious, nor did it fail to satisfy requirements of 16 USCS §§ 1536 and 1539, where documentation 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. Party who imported fully mounted leopard was not eligible for exemption under predecessor act because he contracted for import of leopard after leopard was placed on endangered species list, although leopard was slain prior to time that leopard was placed on list. United States v Species of Wildlife etc. (1975, ED NY) 404 F Supp 1298. 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. 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. Although state of Maine's request for incidental take permit was pending, pursuant to 16 USCS § 1539(a)(2)(A) to (B), court found that Canada lynx were subject to impermissible takes and would not issue stay. 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. In action by plaintiff environmental groups against defendants, Department of Interior, its Fish and Wildlife Service, and their officials, challenging Rule's blanket exception under Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., exempting three endangered captive-bred antelope from ESA's prohibitions, plaintiffs had standing in that they had suffered informational injury that was specific and concrete because they regularly used information from 16 USCS § 1539 permitting process to participate in process and inform their members. Friends of Animals v Salazar (2009, DC Dist Col) 626 F Supp 2d 102, 39 ELR 20134, app dismd, motion gr, motion to strike den, stay den, as moot (2010, App DC) 2010 US App LEXIS 10338. In action by plaintiff environmental groups against defendants, Department of Interior, its Fish and Wildlife Service, and their officials, challenging Rule's blanket exception under Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., exempting three endangered captive-bred antelope from ESA's prohibitions, plaintiffs had no standing on their claims under 16 USCS § 1539(d) because findings under § 1539(d) were published at end of process after mandated public process, and while plaintiffs argued such findings were necessary for them to ask for reconsideration or for court challenge, that was not injury to their ability to participate; it was more general interest in law being followed. Friends of Animals v Salazar (2009, DC Dist Col) 626 F Supp 2d 102, 39 ELR 20134, app dismd, motion gr, motion to strike den, stay den, as moot (2010, App DC) 2010 US App LEXIS 10338. Nonprofit organization was attempting to use § 9 (16 USCS § 1538) of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., to force corporation to apply for permit under § 10 (16 USCS § 1539) of ESA, which United States Fish and Wildlife Service has never required from corporation; organization's objective was that such permit application might trigger notice-and-comment proceeding in which organization might participate and obtain more information about corporation's elephants and there was no legal basis to sustain such approach; organization sued private party under citizen suit provision in § 9 seeking information from that private party pursuant to § 10 notice and comment process that would be promulgated by FWS; however, FWS has neither promulgated such process nor was it party to suit and to grant organization relief under these circumstances would be to profoundly alter and expand law on U.S. Const. art. III standing based on informational injury. ASPCA v Feld Entm't, Inc. (2009, DC Dist Col) 677 F Supp 2d 55, 71 Envt Rep Cas 1651. Unpublished Opinions Unpublished: Sufficient evidence supported conviction under 16 USCS § 703 because hawk that defendant admitted shooting was endangered bird species and because there was no defense for protection of property under 16 USCS §§ 1538 and 1539. United States v Stephens (2005, CA5 La) 142 Fed Appx 821. 
11 of 15 DOCUMENTS UNITED STATES CODE SERVICE Copyright © 2011 Matthew Bender & Company,Inc. a member of the LexisNexis Group (TM) All rights reserved. *** CURRENT THROUGH PL 112-14, APPROVED 5/26/2011 *** TITLE 16. CONSERVATION CHAPTER 35. ENDANGERED SPECIES Go to the United States Code Service Archive Directory 16 USCS § 1540 Yüklə 2,21 Mb. Dostları ilə paylaş:
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