Page 1
1 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 § 1531
§ 1531. Congressional findings and declaration of purposes and policy
(a) Findings. The Congress finds and declares that-(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of
economic growth and development untempered by adequate concern and conservation;
(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;
(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;
(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent
practicable the various species of fish or wildlife and plants facing extinction, pursuant to-(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with Japan;
(C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
(D) the International Convention for the Northwest Atlantic Fisheries;
(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;
(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and
(G) other international agreements; and
(5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants.
(b) Purposes. The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species
and threatened species depend may be conserved, to provide a program for the conservation of such endangered species
and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.
(c) Policy.
(1) It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve
endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.
(2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.
Page 2
16 USCS § 1531
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 2, 87 Stat. 884; Dec. 28, 1979, P.L. 96-159, § 1, 93 Stat. 1225; Oct. 13, 1982, P.L.
97-304, § 9(a), 96 Stat. 1426; Oct. 7, 1988, P.L. 100-478, Title I, § 1013(a), 102 Stat. 2315.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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.
Effective date of section:
Act Dec. 28, 1973, P.L. 93-205, § 16, 87 Stat. 903, provided: "This Act [16 USCS §§ 1531 et seq., generally; for full
classification of this Act, consult USCS Tables volumes] shall take effect on the date of its enactment [enacted Dec. 28,
1973].".
Amendments:
1979. Act Dec. 28, 1979, in subsec. (a)(5), substituted "fish, wildlife, and plants" for "fish and wildlife".
1982. Act Oct. 13, 1982, in subsec. (c), designated existing provisions as para. (1), and added para. (2).
1988. Act Oct. 7, 1988, in subsec. (a)(4)(G), substituted "; and" for the period.
Short titles:
Act Dec. 28, 1973, P.L. 93-205, § 1, 87 Stat. 884, provided: "This Act may be cited as the 'Endangered Species Act
of 1973'.". For full classification of such Act, consult USCS Tables volumes.
Act Nov. 10, 1978, P.L. 95-632, § 1, 92 Stat. 3751, provided: "This Act may be cited as the 'Endangered Species Act
Amendments of 1978'.". For full classification of such Act, consult USCS Tables volumes.
Act Oct. 13, 1982, P.L. 97-304, § 1, 96 Stat. 1411, provided: "This Act may be cited as the 'Endangered Species Act
Amendments of 1982'.". For full classification of such Act, consult USCS Tables volumes.
Other provisions:
Relationship of 16 USCS § 1802(24) to Endangered Species Act of 1973 Act March 9, 1992, P.L. 102-251, Title
III, § 305, 106 Stat. 66; Sept. 30, 1996, P.L. 104-208, Div A, Title I, § 101(a) [Title II, § 211(b)], 110 Stat. 3009-41 (effective 15 days after enactment of Act Oct. 11, 1996, P.L. 104-297), provides: "The special areas defined in section
3(24) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802(24)) shall be considered
places that are subject to the jurisdiction of the United States for the purposes of the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).".
Minimization of conflicts with recreational fisheries. For provision that all Federal agencies minimize conflicts
between recreational fisheries and administration of this chapter, see Ex. Or. No. 12962, § 4, of June 7, 1995, 60 Fed.
Reg. 30769, 30770, which appears as 16 USCS § 1801 note.
Page 3
16 USCS § 1531
NOTES:
Code of Federal Regulations:
Natural Resources Conservation Service, Department of Agriculture--Compliance with NEPA, 7 CFR 650.1 et seq.
National Oceanic and Atmospheric Administration, Department of Commerce--Civil procedures, 15 CFR 904.1 et
seq.
Bureau of Customs and Border Protection, Department of Homeland Security; Department of the Treasury--Articles
conditionally free, subject to a reduced rate, etc, 19 CFR 10.1 et seq.
Bureau of Customs and Border Protection, Department of Homeland Security; Department of the Treasury--Special
classes of merchandise, 19 CFR 12.1 et seq.
Office of Surface Mining Reclamation and Enforcement, Department of the Interior--Requirements for permits and
permit processing, 30 CFR 773.1 et seq.
Department of the Army--Regulations affecting military reservations, 32 CFR 552.16 et seq.
National Park Service, Department of the Interior--National park system units in Alaska, 36 CFR 13.1 et seq.
Bureau of Land Management, Department of the Interior--Off-road vehicles, 43 CFR 8340.0-1 et seq.
Surface Transportation Board, Department of Transportation--Procedures for implementation of environmental laws,
49 CFR 1105.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--General provisions, 50 CFR 10.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Endangered and threatened wildlife and plants,
50 CFR 17.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Eagle permits, 50 CFR 22.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 50 CFR 23.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Conservation of endangered and threatened species of fish, wildlife, and plants-cooperation with the States, 50 CFR 81.1 et seq.
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce--General endangered and threatened marine species, 50 CFR 222.101 et seq.
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce--Threatened marine and anadromous species, 50 CFR 223.101 et seq.
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce--Endangered marine and anadromous species, 50 CFR 224.101 et seq.
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce--Whaling provisions, 50 CFR 230.1 et seq.
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations--Interagency cooperation-Endangered Species Act of 1973, as amended, 50 CFR 402.01 et seq.
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations--Northwestern Hawaiian Islands Marine National Monument, 50 CFR 404.1 et seq.
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations--Listing endangered and threatened species and designating critical habitat, 50 CFR 424.01 et seq.
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations--General provisions, 50 CFR 450.01 et seq.
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations--Application procedure, 50 CFR 451.01 et seq.
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations--Consideration of application by the Secretary, 50 CFR 452.01 et seq.
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations--Endangered Species Committee, 50 CFR 453.01 et seq.
Page 4
16 USCS § 1531
Related Statutes & Rules:
This section is referred to in 16 USCS § 1539.
Research Guide:
Federal Procedure:
24A Fed Proc L Ed, Natural and Marine Resources §§ 56:2074, 2105, 2132, 2154, 2155, 2336.
Am Jur:
35A Am Jur 2d, Fish, Game, and Wildlife Conservation § 64.
41 Am Jur 2d, Indians; Native Americans § 66.
Am Jur Proof of Facts:
35 Am Jur Proof of Facts 3d, Proof of Standing in Environmental Citizen Suits, p. 493.
86 Am Jur Proof of Facts 3d, Citizen Suit for Injunctive Relief Pending Federal Agency's Compliance with National
Environmental Policy Act, p. 99.
89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125.
Forms:
10B Fed Procedural Forms L Ed, Highways and Bridges (2006) § 38:17.
13 Fed Procedural Forms L Ed, Natural and Mineral Resources (2005) §§ 50:209, 211, 212, 214.
12 Am Jur Pl & Pr Forms (2008), Fish and Game, § 30.
13A Am Jur Pl & Pr Forms (2009), Highways, Streets, and Bridges, § 219.
20B Am Jur Pl & Pr Forms (2008), Public Lands, § 13.
24B Am Jur Pl & Pr Forms (1999), Waters, § 100.
Annotations:
Construction and Application of State Endangered Species Acts. 44 ALR6th 325.
Validity, construction, and application of state wildlife possession laws. 50 ALR5th 703.
Texts:
3-IX Benedict on Admiralty, The Law of American Admiralty Its Jurisdication, Law and Practice with Forms and
Directions, Marine Oil Pollution § 112.
3-IX Benedict on Admiralty, The Law of American Admiralty Its Jurisdication, Law and Practice with Forms and
Directions, Marine Oil Pollution § 112.
8-XI Benedict on Admiralty, Desk Reference, Marine Oil Pollution § 11.02.
8-XI Benedict on Admiralty, Desk Reference, Marine Oil Pollution § 11.02.
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 17, Natural Resources § 17.04.
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 18, Hunting, Fishing, and Gathering Rights § 18.07.
Page 5
16 USCS § 1531
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 19, Water Rights § 19.06.
2 Energy Law & Transactions (Matthew Bender), ch 53, Hydroelectric Power § 53.04.
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 19, Wetlands § 19.04.
4 Environmental Law Practice Guide (Matthew Bender), ch 23A, Coasts § 23A.04.
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.
5 Environmental Law Practice Guide (Matthew Bender), ch 34A, Agricultural Environmental Law § 34A.05.
6 Environmental Law Practice Guide (Matthew Bender), ch 41, Federal-State Relationships § 41.02.
6 Environmental Law Practice Guide (Matthew Bender), ch 43, Alaska § 43.11.
8 Environmental Law Practice Guide (Matthew Bender), ch 82, Rhode Island § 82.11.
2 Treatise on Environmental Law (Matthew Bender), ch 3, Water Pollution § 3.03.
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation §§ 12.04, 12.05.
Law Review Articles:
Goplerud. The Endangered Species Act: Does It Jeopardize the Continued Existence of Species? Arizona State L J
487, 1979.
Teller. Effective installation compliance with the Endangered Species Act. 1993 Army Law 5, June 1993.
Goldman-Carter. Federal Conservation of Threatened Species: By Administrative Discretion or by Legislative
Standard? 11 BC Environ Aff L Rev 63, October 1983.
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.
Stromberg. The Endangered Species Act of 1973: Is the Statute Itself Endangered?, 6 Environmental Affairs 511,
1978.
Estes. The effect of the Federal Endangered Species Act on state water rights. 22 Envtl L 1027, 1992.
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Auslander. Reversing The Flow: The Interconnectivity Of Environmental Law In Addressing External Threats To
Protected Lands And Waters. 30 Harv Envtl L Rev 481, 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.
Foley. The tarnishing of an environmental jewel: the Endangered Species Act and the northern spotted owl. 8 J
Land Use & Envtl L 253, Fall 1992.
Thornton. Takings under Endangered Species Act section 9. 4 Nat Resources & Env't 7.
Endangered species protection. 8 Nat Resources & Env't 3, Summer 1993.
Coggins. An ivory tower perspective on endangered species law. 8 Nat Resources & Env't 3, Summer 1993.
Taylor. Biological uncertainty in the Endangered Species Act. 8 Nat Resources & Env't 6, Summer 1993.
Quarles; Macleod; Lundquist. The unsettled law of ESA takings. 8 Nat Resources & Env't 10, Summer 1993.
Freeman. Reinitiation of ESA § 7 consultations over existing projects. 8 Nat Resources & Env't 17, Summer 1993.
Thornton. The search for a conservation planning paradigm: Section 10 of the ESA. 8 Nat Resources & Env't 21,
Summer 1993.
Evans. A "recovery" partnership for the Upper Colorado River to meet ESA § 7 needs. 8 Nat Resources & Env't 24,
Summer 1993.
Ruhl. Section 4 of the ESA-the cornerstone of species protection law. 8 Nat Resources & Env't 26, Summer 1993.
Sobek. Enforcement of the Endangered Species Act. 8 Nat Resources & Env't 30, Summer 1993.
Balistrieri. CITES: the ESA and international trade. 8 Nat Resources & Env't 33, Summer 1993.
Irvin. The Endangered Species Act: keeping every cog and wheel. 8 Nat Resources & Env't 36, Summer 1993.
Desiderio. The ESA: facing hard truths and advocating responsible reform. 8 Nat Resources & Env't 37, Summer
1993.
Cheney. A selective bibliography on the Endangered Species Act. 8 Nat Resources & Env't 43, Summer 1993.
Benson. So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and
the Endangered Species Act. 44 Nat Resources J 29, Winter 2004.
Page 6
16 USCS § 1531
The exemption process under the Endangered Species Act: how the "god squad" works and why. 66 Notre Dame L
Rev 825, 1991.
Peterson. The development and application of the "extraordinary case" exception within the ESA: private and national interests in conflict. 14 Pub Land L Rev 261, Spring 1993.
Smith. The Endangered Species Act and Biological Conservation. 57 S Cal L Rev 361, March 1984.
Simmons. The Endangered Species Act of 1973. 23 South Dakota L Rev 302, Spring 1978.
Arnold, Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use
development. 10 Stan Envtl L J 1, 1991.
Rosenberg. Federal Protection of Unique Environmental Interests: Endangered and Threatened Species. 58 The
North Carolina L Rev 491, March 1980.
Patlis. Biodiversity, ecosystems and species: where does the Endangered Species Act fit in? 8 Tul Envtl LJ 33,
Winter 1994.
Marsh. Conservation planning under the Endangered Species Act: a new paradigm for conserving biological diversity. 8 Tul Envtl LJ 97, Winter 1994.
Houck. The Endangered Species Act and its implementation by the U.S. Departments of Interior and Commerce. 64
U Colo L Rev 277, 1993.
Williams. A brief overview of the Endangered Species Act. 6 Utah BJ 9, November 1993.
Gibbons; Gwin; Chandler. The Efficacy of Federal Environmental Legislation: The TVA Experience with Endangered Species and Clean Air. Utah Law Rev 701, 1979.
Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.
The concept of species and the Endangered Species Act. 11 Va Envtl LJ 463, Spring 1992.
Goble. Recovery in a Cynical Time--With Apologies to Eric Arthur Blair. 82 Wash L Rev 581, August 2007.
Chen. Diversity in a different dimension: evolutionary theory and affirmative action's destiny, 59 3 Ohio St L J 811,
1998.
Interpretive Notes and Decisions:
1. Generally 2. Purpose 3. Constitutionality 4. Relationship to other provisions 5. Duty to protect endangered species,
generally 6.--Prohibited activities 7. Practice and procedure 8.--Controlling law 9.--Standing 10.--Notice; hearing right
11.--Evidentiary matters 12. Judicial review 13.--Final order 14.--Ripeness; mootness 15. Miscellaneous
1. Generally
Court will not expurgate important federal policy statute designed to foreclose all activities antithetic to preservation of "esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people" of
vulnerable species of fish, wildlife, and plants, as referred to in 16 USCS § 1531(a)(3). Hill v Tennessee Valley Authority (1977, CA6 Tenn) 549 F2d 1064, 9 Envt Rep Cas 1737, 7 ELR 20172, affd (1978) 437 US 153, 98 S Ct 2279, 57
L Ed 2d 117, 11 Envt Rep Cas 1705, 8 ELR 20513 (superseded by statute as stated in Board of Governors of Federal
Reserve System v Dimension Financial Corp. (1986) 474 US 361, 106 S Ct 681, 88 L Ed 2d 691, CCH Fed Secur L Rep
P 92437) and (superseded by statute on other grounds as stated in Pyramid Lake Paiute Tribe of Indians v United States
Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572) and (superseded by statute on other grounds as stated in
Pacific Rivers Council v Thomas (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt
Rep Cas 1078, 24 ELR 21367) and (superseded by statute on other grounds as stated in Rio Grande Silvery Minnow v
Keys (2002, DC NM) 356 F Supp 2d 1222) and (superseded by statute on other grounds as stated in Sierra Club v Strock
(2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep Cas 2082, 37 ELR 20188, 20 FLW Fed D 995) and (superseded by
statute on other grounds as stated in Hoosier Envtl. Council v United States DOT (2007, SD Ind) 2007 US Dist LEXIS
90840) and (superseded by statute on other grounds as stated in Grand Canyon Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).
Language in 16 USCS § 1533, stating that Secretary of Interior had one year in which to publish final regulation after general notice of proposed regulation listing species as endangered, is to be taken literally; if Congress had wanted to
tie publishing of final regulation to filing of petition seeking listing, it easily could have. Oregon Natural Resources
Council v Kantor (1996, CA9 Cal) 99 F3d 334, 96 CDOS 7969, 96 Daily Journal DAR 13233, 43 Envt Rep Cas 1796,
27 ELR 20469, dismd, in part, motion den, in part, transf (1997, ND Cal) 1997 US Dist LEXIS 11286, transf to, sum-
Page 7
16 USCS § 1531
mary judgment gr, summary judgment den, remanded (1998, DC Or) 6 F Supp 2d 1139, 29 ELR 20514 (criticized in
Defenders of Wildlife v Babbitt (1999, SD Cal) 1999 US Dist LEXIS 10366).
Endangered Species Act (16 USCS §§ 1531 et seq.) applies to hunting on Seminole Indian Reservation, where
United States prosecuted tribe member for taking and possessing Florida panther, because on-reservation hunting rights
are not absolute when species is in danger of extinction, and legislative history and clear interpretation of Act support
conclusion Congress abrogated such rights to extent necessary to advance purpose of Act. United States v Billie (1987,
SD Fla) 667 F Supp 1485, 18 ELR 20209.
2. Purpose
Objective of Endangered Species Act is to enable listed species not merely to survive, but to recover from their endangered or threatened status. Sierra Club v United States Fish & Wildlife Serv. (2001, CA5 La) 245 F3d 434, 52 Envt
Rep Cas 1464, 31 ELR 20504.
Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) (Hatchery Listing Policy)
does not flout statutory goal of preserving natural populations under Endangered Species Act (ESA), 16 USCS §§ 1531
et seq., but instead Hatchery Listing Policy mandates complex evaluation process that considers both positive and negative effects of hatchery fish on viability of natural populations; Hatchery Listing Policy's review of status of entire evolutionarily significant unit is consistent with overall focus of ESA on preserving natural populations. Trout Unlimited v
Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.
Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) complies with express purpose of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., to preserve ecosystems upon which endangered and
threatened species depend and to restore any such species to point at which measures provided pursuant to ESA are no
longer necessary, 16 USCS § 1532(3). Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904,
39 ELR 20061.
Endangered Species Act of 1973 (16 USCS §§ 1531-1543) was enacted to provide for conservation of domestic and
endangered species of fish and wildlife through federal action and through cooperation with state endangered species
conservation programs consistent with federal law. Fouke Co. v Brown (1979, ED Cal) 463 F Supp 1142, 9 ELR
20113.
U.S. Fish and Wildlife Service's conclusion that three of lynx's four regions, which comprised three-quarters of
lynx's historical regions and in two of which lynx was no longer viable, were collectively not significant portion of
lynx's range was arbitrary and capricious and contrary to plain meaning of and broad purpose of Endangered Species
Act, 16 USCS §§ 1531 et seq., to protect endangered and threatened species. Defenders of Wildlife v Norton (2002, DC
Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89 Fed Appx 273.
Federal agencies did not show that transfer to California district court of landowners' action, which challenged designation of their California property as critical habitat for San Diego fairy shrimp, was appropriate for convenience or
fairness because landowners' choice of forum in District of Columbia (D.C.) was not outweighed by location of property in San Diego County, which was wholly subsumed by Southern District of California, pursuant to 28 USCS § 84(d);
rather, nexus between controversy and California, where property and landowners were located, was only marginally
stronger than connection between controversy and D.C. because controversy involved issue of federal environmental
law under Endangered Species Act, which was subject to judicial review under Administrative Procedure Act, 5 USCS
§§ 702 et seq., and was enacted to ensure conservation of endangered and threatened species and their ecosystems; and
involved private property that was not accessible by public, and would have no direct or unique impact on San Diego
County residents or their water supply. Otay Mesa Prop., L.P. v United States DOI (2008, DC Dist Col) 584 F Supp 2d
122, summary judgment den, summary judgment den, as moot, summary judgment gr (2010, DC Dist Col) 714 F Supp
2d 73.
3. Constitutionality
Indian's First Amendment right of religious freedom was not violated due to conviction of Indian for taking and
selling eagles and other migratory birds in violation of Bald Eagle Protection Act (16 USCS §§ 668 et seq.), Migratory
Bird Treaty Act (16 USCS §§ 703 et seq.) and Endangered Species Act (16 USCS §§ 1531 et seq.), based upon contention that possession and transportation of eagle feathers and parts of eagles are integral parts of Indian religious practices, since record reveals that Indian was killing eagles and other protected birds for commercial gain and not for religious
Page 8
16 USCS § 1531
purposes. United States v Dion (1985, CA8 SD) 762 F2d 674, revd on other grounds, in part, remanded (1986) 476 US
734, 90 L Ed 2d 767, 106 S Ct 2216, 16 ELR 20676.
Endangered Species Act (16 USCS §§ 1531 et seq.) and regulations promulgated thereunder, which prevent killing
of grizzly bears to protect sheep, do not deprive plaintiff livestock owners of their property without due process of law;
killing of grizzly bears to protect sheep is not fundamental right under U.S. Constitution, and enactments must be upheld because they rationally further legitimate government objective of preserving threatened species by forbidding
killing of grizzly bears except in certain limited circumstances; regulations accommodate needs and concerns of livestock owners by authorizing killing of "nuisance bears" by government officials when efforts to live-capture them have
been unsuccessful, and by permitting personal defense of property by means other than killing. Christy v Hodel (1988,
CA9 Mont) 857 F2d 1324, 18 ELR 21430, cert den (1989) 490 US 1114, 104 L Ed 2d 1038, 109 S Ct 3176.
Endangered Species Act (ESA) (16 USCS §§ 1531 et seq.), and regulations promulgated thereunder, which prevent
killing of grizzly bears to protect sheep, do not deny livestock owners equal protection, since persons raising livestock
near grizzly bear habitat is not classification made by ESA or grizzly bear regulations, and prohibition is not applied
with greater severity against such persons; furthermore, regulations authorizing carefully controlled and limited sport
hunt of grizzly bears in designated geographic areas has rational basis, and does not deny plaintiffs equal protection,
since limited amount of regulated taking is necessary to ease grizzly bear population pressures in those areas. Christy v
Hodel (1988, CA9 Mont) 857 F2d 1324, 18 ELR 21430, cert den (1989) 490 US 1114, 104 L Ed 2d 1038, 109 S Ct
3176.
Endangered Species Act (16 USCS §§ 1531 et seq.), and regulations promulgated thereunder, which prevent killing
of grizzly bears to protect sheep, do not effect a "taking" of livestock owners' property by government so as to trigger
just compensation clause of Fifth Amendment, since federal government does not own or control wild animals it protects, and losses sustained by plaintiff livestock owners are incidental and by no means inevitable result of reasonable
regulation in public interest. Christy v Hodel (1988, CA9 Mont) 857 F2d 1324, 18 ELR 21430, cert den (1989) 490 US
1114, 104 L Ed 2d 1038, 109 S Ct 3176.
Endangered Species Act (16 USCS §§ 1531 et seq.) does not unconstitutionally delegate legislative authority to
Secretary of Interior, since, by limiting Secretary's legislative authority to promulgation of regulations that promote
"conservation" of threatened species, and by defining and providing examples of such conservation, Congress has established standard sufficiently definite and precise to permit courts to determine whether Secretary's enactments comport with Congressional will. Christy v Hodel (1988, CA9 Mont) 857 F2d 1324, 18 ELR 21430, cert den (1989) 490
US 1114, 104 L Ed 2d 1038, 109 S Ct 3176.
Summary judgment pursuant to Fed. R. Civ. P. 56 was properly granted in favor of United States in action in which
real estate development company sought to construct 202-acre housing development in county in California; application
of Endangered Species Act by Fish and Wildlife Service when it reached its determination that company's construction
plan was likely to jeopardize continued existence of arroyo southwestern toad was not unconstitutional. Rancho Viejo,
LLC v Norton (2003, App DC) 355 US App DC 303, 323 F3d 1062, 56 Envt Rep Cas 1001, 33 ELR 20163, cert den
(2004) 540 US 1218, 158 L Ed 2d 153, 124 S Ct 1506, 58 Envt Rep Cas 1640, cert den (2004) 541 US 1006, 158 L Ed
2d 524, 124 S Ct 2061.
Endangered Species Act of 1973 does not violate due process clause of Fifth Amendment because provisions
thereof have rational basis. Delbay Pharmaceuticals, Inc. v Department of Commerce (1976, DC Dist Col) 409 F Supp
637, 6 ELR 20211.
Indian's religious interest in possessing Florida panther parts does not outweigh compelling governmental interest
in protecting panther, where evidence shows panther parts are not critical or indispensable to religious medicine practices, and thus charge of illegal possession of endangered species parts does not violate Indian's right to freedom of religion. United States v Billie (1987, SD Fla) 667 F Supp 1485, 18 ELR 20209.
Endangered Species Act, 16 USCS §§ 1531 et seq., is valid exercise of Congressional power pursuant to treaty-making power and Commerce Clause of United States Constitution. Shields v Babbitt (2000, WD Tex) 229 F Supp 2d
638.
State failed to demonstrate claim arising under Tenth Amendment in its action against defendants, Secretary of Interior and Director of Fish and Wildlife Services (FWS), concerning FWS's rejection of state's gray wolf management
plan under Wyo. Stat. Ann. § 23-1-304 because state failed to show how Congress violated state's reserved powers by
regulating gray wolves via Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., nor did state show how defend-
Page 9
16 USCS § 1531
ants commandeered state's legislative processes; state was under no mandate to regulate gray wolves, and defendants
offered state permissible quid pro quo, namely that state establish wolf management plan that comported with ESA, or
defendants, through ESA would continue to preempt state regulation of gray wolf. Wyoming v United States DOI (2005,
DC Wyo) 360 F Supp 2d 1214, 60 Envt Rep Cas 1189, affd, in part (2006, CA10 Wyo) 442 F3d 1262, 62 Envt Rep Cas
1137, 36 ELR 20067 and (criticized in Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330).
State failed to demonstrate claim arising under Guarantee Clause, U.S. Const. art. 4, § 4, in its action against defendants, Secretary of Department of Interior and Director of Fish and Wildlife Services (FWS), concerning FWS's rejection of state's gray wolf management plan under Wyo. Stat. Ann. § 23-1-304 because there was no usurpation of
state's governmental processes; Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., was valid exercise of Congressional legislation, and mandates state complained of were not mandatory; FWS through ESA simply gave state
conditions by which it could take over management of gray wolves, and state was free to not accept conditions, with
consequence of continued preemption. Wyoming v United States DOI (2005, DC Wyo) 360 F Supp 2d 1214, 60 Envt
Rep Cas 1189, affd, in part (2006, CA10 Wyo) 442 F3d 1262, 62 Envt Rep Cas 1137, 36 ELR 20067 and (criticized in
Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330).
Endangered Species Act (16 USCS §§ 1531 et seq.) is constitutional exercise of police power, since protection of
endangered species of wildlife is matter of general concern and in public interest. People v K. Sakai Co. (1976, 1st
Dist) 56 Cal App 3d 531, 128 Cal Rptr 536.
4. Relationship to other provisions
Neither 10 USCS § 2866, which directs that Secretary of Defense allow and encourage Department instrumentalities to participate in water conservation efforts, nor 16 USCS § 1531(c)(2), which declares that federal agencies are to
cooperate with state and local agencies to resolve water resource issues in concert with conservation of endangered species, overrides, modifies, or repeals 10 USCS § 2246(a), which prohibits use of appropriated funds to equip, operate or
maintain golf course at facility or installation of Department of Defense. Prohibition on Use of Appropriated Funds
for Defense Golf Courses (3/17/98) Comp. Gen. Dec. No. B-277905, 1998 US Comp Gen LEXIS 419.
Both Endangered Species Act (16 USCS §§ 1531 et seq.) and National Environmental Policy Act (42 USCS §§
4321 et seq.) apply to each of 3 distinct stages prescribed by Outer Continental Shelf Lands Act (43 USCS §§ 1331 et
seq.) for offshore and gas activities, namely, leasing, exploration, and development and production. 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).
Bureau of Reclamation's salvaging of sucker fish from drained canals and transporting some of them to hatcheries
is activity categorically excluded from National Environmental Policy Act where salvage operation is required as part of
Bureau's compliance with Endangered Species Act. Oregon Natural Resources Council v Bureau of Reclamation (1995,
CA9 Or) 49 F3d 1441, 95 CDOS 2448, 95 Daily Journal DAR 4203, 42 Envt Rep Cas 1190.
Long-term water service contract between government and users did not obligate government to furnish full contractual amount of water when that amount could not be delivered consistent with Endangered Species Act. O'Neill v
United States (1995, CA9 Cal) 50 F3d 677, 95 CDOS 1903, 95 Daily Journal DAR 3289, 40 Envt Rep Cas 1586, 26
UCCRS2d 1, 25 ELR 20873, cert den (1995) 516 US 1028, 133 L Ed 2d 521, 116 S Ct 672.
Where federal agency retained authority to manage dam and remained owner in fee simple of dam, it had responsibilities under ESA, despite fact that ESA was enacted well after agreement between agency and state power company;
thus, it had authority to direct dam operations to comply with ESA. Klamath Water Users Protective Ass'n v Patterson
(2000, CA9 Or) 204 F3d 1206, 2000 CDOS 706, 2000 Daily Journal DAR 1093 (criticized in Klamath Irrigation Dist. v
United States (2005) 67 Fed Cl 504, 61 Envt Rep Cas 1385).
District court decision interpreting term "species" under 16 USCS §§ 1531(b) and 1532(16) of Endangered Species
Act was irrelevant to interpreting meaning of term "stock" in 16 USCS § 1802(37) of Magnuson-Stevens Fishery Conservation and Management Act, 16 USCS §§ 1801 et seq; there was no basis for suggesting that "species" and "stock"
had same definition. Or. Trollers Ass'n v Gutierrez (2006, CA9 Or) 452 F3d 1104, 36 ELR 20133, cert den (2007) 549
US 1338, 127 S Ct 2028, 167 L Ed 2d 762.
In case in which Indian Tribe appealed district courts' dismissal of their claims for lack of subject matter jurisdiction, in regards to building Tamiami Trail bridge, Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, 123 Stat. 524,
repealed National Environmental Policy Act of 1969, 42 USCS §§ 4321 et seq., Federal Advisory Committee Act, 5
Page 10
16 USCS § 1531
USCS app. § 2, or Endangered Species Act of 1973, 16 USCS §§ 1531 et seq. Miccosukee Tribe of Indians of Fla. v
United States Army Corps of Eng'rs (2010, CA11 Fla) 619 F3d 1289, 22 FLW Fed C 1441.
Secretary must make comprehensive analysis of all ramifications of lease-sale under Outer Continental Shelf Land
Act (OCSLA) (43 USCS §§ 1331 et seq.) and consider all checks and balances and all mitigating measures adopted in
pursuance of OCSLA when considering whether there has been satisfaction of mandate of Endangered Species Act (16
USCS §§ 1531 et seq.) that no endangered life be jeopardized; such considerations may be considered "agency action"
subject to judicial review. North Slope Borough v Andrus (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).
Although environmental group claimed that EPA violated Endangered Species Act, Clean Air Act (CAA) required
EPA to undertake two-phase process for promulgating regulations to reduce hazardous air pollutants emissions and EPA
considered "adverse environmental effects" only during second, risk-based phase, 42 USCS § 7412(f)(2)(A); Congress
expressly channeled consideration of endangered species to second phase of CAA standard promulgation and instant
case involved first phase. Sierra Club v EPA (2004, App DC) 359 US App DC 251, 353 F3d 976, 57 Envt Rep Cas
1878, 34 ELR 20014, reh den (2004, App DC) 2004 US App LEXIS 7009 and reh, en banc, den (2004, App DC) 2004
US App LEXIS 7010.
Congress has power to authorize and direct Tennessee Valley Authority to impound Tellico Reservoir notwithstanding provisions of 16 USCS §§ 1531 et seq. or any other law; Energy and Water Development Appropriation Bill,
whose language exempts Tellico Dam project from "any other law" is clear and explicit, and Congress has clearly and
expressly exempted Tellico Reservoir from any law repugnant to its completion. Sequoyah v Tennessee Valley Authority (1979, ED Tenn) 480 F Supp 608, affd (1980, CA6 Tenn) 620 F2d 1159, cert den (1980) 449 US 953, 66 L Ed 2d
216, 101 S Ct 357.
District court did not have jurisdiction to hear City's challenge to decision of National Marine Fisheries Service
under Endangered Species Act, 16 USCS § 1531, because decision was related to decision of Federal Energy Regulatory
Commission to issue license to City's power plant subject to certain environmental provisions and appeal needed to be
taken under specific procedure that was outlined for appeals under 16 USCS § 825l, which was part of Federal Power
Act, 16 USCS § 791a et seq. City of Tacoma v Nat'l Marine Fisheries Serv. (2005, DC Dist Col) 383 F Supp 2d 89.
Fish and Wildlife Service did not violate National Environmental Policy Act by failing to prepare Environmental
Impact Statement or Environmental Assessment for its critical habitat designation; binding Ninth Circuit authority precluded challenge under NEPA for critical habitat designation made pursuant to Endangered Species Act. Home Builders
Ass'n v United States Fish & Wildlife Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226, motion withdrawn,
motion den, remanded on other grounds (2007, ED Cal) 2007 US Dist LEXIS 5208.
Using standard set by Religious Freedom Restoration Act (RFRA), 42 USCS §§ 2000bb et seq. law of general applicability that substantially burdened free exercise of religion was invalid unless government demonstrated that law
was least restrictive means of vindicating compelling government interest. 42 USCS § 2000bb-1; therefore,criminalizing
transportation, importation, and possession of leopard skins under which defendant was charged and found that government met its burden under RFRA of demonstrating that current permitting system for leopard skins, which included
no religious exemption, was least restrictive means of furthering its compelling interest under Endangered Species Act,
16 USCS §§ 1531 et seq., of conserving and protecting endangered northern African leopard. United States v Adeyemo
(2008, ND Cal) 624 F Supp 2d 1081.
One of "amendatory or supplementary" acts was Central Valley Project Improvement Act (CVPIA), Pub. L. No.
102-575, 106 Stat. 4600 (1992), mandating changes in management of Central Valley Project (CVP), which, in §
3406(b), required Bureau of Reclamation to immediately operate CVP to meet all obligations under state and federal
law, including Endangered Species Act, 16 USCS §§ 1531 et seq.; however, general "acts amendatory or supplementary
thereto" language was subordinate to specific language of art 9(a) of contract. NRDC v Kempthorne (2009, ED Cal) 621
F Supp 2d 954, clarified, summary judgment gr, motion gr, request gr, objection sustained, request den (2009, ED Cal)
627 F Supp 2d 1212.
5. Duty to protect endangered species, generally
In connection with challenge to Secretary's refusal to sell water from dam in reservoir for municipal and industrial
use in neighboring cities, (1) Endangered Species Act (16 USCS §§ 1531 et seq.) requires Secretary to give priority to
conserving endangered species of fish in reservoir so long as they are endangered and threatened, and (2) Secretary did
Page 11
16 USCS § 1531
not abuse discretion both in determining that there was no excess water to sell for municipal and industrial purposes
after obligations under Act were fulfilled, and in rejecting alternate plan for operation of reservoir. Carson-Truckee
Water Conservancy Dist. v Clark (1984, CA9 Nev) 741 F2d 257, 21 Envt Rep Cas 2111, 14 ELR 20797, cert den (1985)
470 US 1083, 85 L Ed 2d 141, 105 S Ct 1842.
Because links between species loss and substantial commercial effect were not attenuated under Endangered Species Act (ESA), economic regulatory scheme, taking of Texas cave species were aggregated with other takes, and ESA's
take provision was constitutional under Commerce Clause. GDF Realty Invs., Ltd. v Norton (2003, CA5 Tex) 326 F3d
622, 56 Envt Rep Cas 1033, reh den, reh, en banc, den (2004, CA5 Tex) 362 F3d 286, 58 Envt Rep Cas 1187 and cert
den (2005) 545 US 1114, 125 S Ct 2898, 162 L Ed 2d 294, 60 Envt Rep Cas 1512.
Under Endangered Species Act of 1973 (16 USCS §§ 1531 et seq.), Fish and Wildlife Service, acting for Secretary
of Interior, has affirmative duty to increase population of protected species, and regulations permitting sport hunting of
migratory game birds from one-half hour before sunrise until sunset are inconsistent with such duty since certain endangered species might be misidentified during twilight hours. Defenders of Wildlife v Andrus (1977, DC Dist Col)
428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.
Endangered Species Act requires federal agencies to protect endangered species and Bowhead Whale and Gray
Whale are endangered species within meaning of ESA. North Slope Borough v Andrus (1979, DC Dist Col) 486 F
Supp 326, 13 Envt Rep Cas 2097, 10 ELR 20054.
Government's responsibility under Endangered Species Act (16 USCS §§ 1531 et seq.) is to insure that government
does not authorize, fund, or carryout any activity that is likely to jeopardize continued existence of endangered species
and to take affirmative steps to protect, conserve, and restore endangered species to level that would permit removal
from Endangered Species list. Cabinet Mountains Wilderness v Peterson (1981, DC Dist Col) 510 F Supp 1186, 15
Envt Rep Cas 2081, 11 ELR 20812, affd (1982, App DC) 222 US App DC 228, 685 F2d 678, 17 Envt Rep Cas 1844, 12
ELR 21058.
Argument of Secretary of Interior and U.S. Fish and Wildlife Service that lynx was not "significant" under Endangered Species Act, 16 USCS §§ 1531 et seq., because it was naturally rare had no foundation in statute and was contrary
to Act's broad purpose to protect wildlife that is in danger of or threatened with extinction, pursuant to 16 USCS §
1531(a)(2). Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89 Fed
Appx 273.
Defendants, Secretary of Interior and U.S. Fish and Wildlife Service, violated 16 USCS § 1533(b)(6)(C) by failing
to designate critical habitat for lynx within one year of final decision that lynx was threatened species; it was appropriate to enjoin defendants to do so because they had asserted that it would be at least four years before lynx critical habitat
would be designated; six and one-half year delay in designating critical habitat was completely counter to mandate of 16
USCS § 1531(b). Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89
Fed Appx 273.
During voluntary remand to U.S. Fish and Wildlife Service of its critical habitat designations of two endangered
species, current designations remained in force during remand because 1) substantive defect in designations did not require vacatur, and risk of harm to designated species from vacating designations outweighed considerations favoring
vacatur under Endangered Species Act's intent, as expressed in 16 USCS § 1531, due to potential prejudice from maintaining status quo, and 2) designations provided marginal benefit in reducing risk of harm to designated species from
habitat conversion pursuant to 16 USCS § 1536(a)(2). NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.
Coercive fines were imposed on Army Corps of Engineers and Secretary of Army for non-compliance with injunction to decrease water flow in river basin because it was clear that Corps was not in compliance with court's order and,
to extent that injunction was in conflict with injunction issued by another federal district court, Corps' deliberate choice
to give navigation-based injunction priority over endangered species-protecting injunction hardly represented good faith
effort to comply with its federally mandated obligations under Endangered Species Act, 16 USCS § 1531 et seq. Am.
Rivers v United States Army Corps of Eng'rs (2003, DC Dist Col) 274 F Supp 2d 62, 57 Envt Rep Cas 1145.
Claims brought by coalition of environmental groups that Forest Service and Bureau of Land Management failed to
follow consultation requirements of Endangered Species Act, thereby violating Administrative Procedure Act, 5 USCS
§§ 701 et seq., specifically that defendants had failed to formally consult with Fish and Wildlife Service before issuing
several oil and gas leases, were not ripe for review; claims rested upon contingent future evens that may not have oc-
Page 12
16 USCS § 1531
curred as anticipated, or many not have occurred at all. Wyo. Outdoor Council v Bosworth (2003, DC Dist Col) 284 F
Supp 2d 81, app dismd (2004, App DC) 2004 US App LEXIS 11867.
Fish and Wildlife Service was entitled to deference in revising endangered seaside sparrow's critical habitat designation, but once it determined revision was necessary it was under obligation to take timely action in determining specific schedule and process. Biodiversity Legal Found. v Norton (2003, DC Dist Col) 285 F Supp 2d 1, 57 Envt Rep Cas
1916, motion gr, dismd (2004, App DC) 2004 US App LEXIS 9238.
Because United States Forest Service's issuance of 16 USCS § 1536(d) determination qualified as affirmative
"agency action" under 16 USCS § 1536(a)(2), court had authority to issue injunction after reinitiation of consultation to
prohibit activities that potentially violated ESA during consultation process; court prohibited all snowmobiling and
snowmobile trail grooming within designated caribou recovery area inside Idaho Panhandle National Forest until completion of formal consultation. Defenders of Wildlife v Martin (2006, ED Wash) 454 F Supp 2d 1085, 64 Envt Rep Cas
1337, summary judgment gr, claim dismissed, claim allowed, injunction gr (2007, ED Wash) 2007 US Dist LEXIS
13061.
Delisting of bald eagle under Endangered Species Act, 16 USCS §§ 1531 et seq., makes it more difficult to show
that measures impinging on religious practices which are justified--at least in part--as essential to protection of eagles
are least restrictive means of achieving goal of protecting eagles. United States v Hardman (2009, DC Utah) 622 F Supp
2d 1129.
6.--Prohibited activities
Endangered Species Act of 1973 (16 USCS §§ 1531 et seq.)--pursuant to which Secretary of Interior has declared
that (1) species of small fish is "endangered species," (2) "critical habitat" of such fish is area of river which would be
impounded by reservoir that would be created as consequence of completion of dam by federal agency authorized to
develop rivers, (3) impoundment of water behind dam would result in total destruction of species' habitat, and (4) all
federal agencies must take such action as is necessary to ensure that actions by them do not destroy or modify critical
habitat of fish--prohibits federal river development agency from impounding river by nearly-completed, multimillion
dollar dam. Tennessee Valley Auth. v Hill (1978) 437 US 153, 98 S Ct 2279, 57 L Ed 2d 117, 11 Envt Rep Cas 1705, 8
ELR 20513 (superseded by statute on other grounds as stated in Board of Governors of Federal Reserve System v Dimension Financial Corp. (1986) 474 US 361, 106 S Ct 681, 88 L Ed 2d 691, CCH Fed Secur L Rep P 92437) and (superseded by statute on other grounds as stated in Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy
(1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572) and (superseded by statute on other grounds as stated in Pacific Rivers
Council v Thomas (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt Rep Cas 1078,
24 ELR 21367) and (superseded by statute on other grounds as stated in Rio Grande Silvery Minnow v Keys (2002, DC
NM) 356 F Supp 2d 1222) and (superseded by statute on other grounds as stated in Sierra Club v Strock (2007, SD Fla)
495 F Supp 2d 1188, 65 Envt Rep Cas 2082, 37 ELR 20188, 20 FLW Fed D 995) and (superseded by statute on other
grounds as stated in Hoosier Envtl. Council v United States DOT (2007, SD Ind) 2007 US Dist LEXIS 90840) and (superseded by statute on other grounds as stated in Grand Canyon Trust v United States Bureau of Reclamation (2008,
DC Ariz) 2008 US Dist LEXIS 83853).
Secretary is prohibited by Endangered Species Act of 1973 (16 USCS §§ 1531 et seq.) from issuing regulation permitting sport trapping of Eastern Timber Wolf. Sierra Club v Clark (1985, CA8 Minn) 755 F2d 608, 15 ELR 20391
(criticized in Humane Soc'y of the United States v Kempthorne (2006, DC Dist Col) 481 F Supp 2d 53).
Decision of U.S. Fish and Wildlife Service to lift ban on commercial importation of 3 threatened kangaroo species
does not violate Endangered Species Act (16 USCS §§ 1531 et seq.), since lifting of ban is part of program to encourage
Australian states, who alone have power directly to protect kangaroos and their habitat, to implement programs for species' conservation. Defenders of Wildlife, Inc. v Watt (1981, DC Dist Col) 12 ELR 20210.
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.
Page 13
16 USCS § 1531
U.S. Fish and Wildlife Service's (USFWS) designation of critical habitat for Mexican spotted owl violated 16
USCS § 1531(b) where existence of other habitat protections did not relieve USFWS from designating critical habitat;
existing state plans were not and never had been adequate; although USFWS' interpretation of relevant impact was entitled to deference, it failed to produce a certain tribal management plan; and USFWS' exclusion of unoccupied areas was
impermissible. Ctr. for Biological Diversity v Norton (2003, DC Ariz) 240 F Supp 2d 1090.
Where United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS) issued to
four companies permits, which allowed companies to plant corn and sugarcane that had been genetically modified to
use for pharmaceutical purposes, did not obtain information about listed species and critical habitats from Fish and
Wildlife Service and National Marine Fisheries Service before APHIS issued permits, Endangered Species Act, 16
USCS §§ 1531 et seq., was violated. Ctr. for Food Safety v Johanns (2006, DC Hawaii) 63 Envt Rep Cas 1685, 36 ELR
20175, superseded on other grounds (2006, DC Hawaii) 451 F Supp 2d 1165, 64 Envt Rep Cas 1650, affd (2009, CA9
Hawaii) 310 Fed Appx 964.
Federal agency violated Endangered Species Act when it failed to obtain information about listed species and critical habitats from Fish and Wildlife Service and National Marine Fisheries Service before it issued permits to four companies that had modified genetic structure of corn and sugarcane so that plants would contain hormones or vaccines that
could be used to treat human illnesses. Ctr. for Food Safety v Johanns (2006, DC Hawaii) 451 F Supp 2d 1165, 64 Envt
Rep Cas 1650, affd (2009, CA9 Hawaii) 310 Fed Appx 964.
Under 33 USCS §§ 1251 et seq., permits which allowed wetlands destruction for limestone mining, were set aside
because beneficial effects of mining, including keeping limestone products available for purchase and collecting funds
from mining companies to acquire wetlands for restoration, did not outweigh adverse environmental effects, including
risk of contamination of water supply, destruction of wetlands and foraging habitat for endangered wood stork under
Endangered Species Act, 16 USCS §§ 1531 et seq., and seepage impacts that had not been fully studied, and because
United States Army Corps of Engineers acted arbitrarily and capriciously and in violation of its governing regulations
when it failed to provide adequate mitigation for lost wetlands in its public interest review, conduct permitting activities
with transparency by disclosing benzene contamination of water supply to public and court, and presume that environmentally preferable alternatives existed. Sierra Club v Strock (2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep Cas
2082, 37 ELR 20188, 20 FLW Fed D 995.
In action brought by plaintiffs alleging that United States Forest Service's decision to construct snowmobile trail
along route adjacent to Boundary Waters Canoe Area Wilderness (BWCAW) and failing to set motorboat quotas violated Wilderness Act, BWCAW Act, National Forest Management Act, National Environmental Policy Act, and Administrative Procedure Act, court granted defendants' motion for summary judgment, and denied plaintiffs' motion for
summary judgment, on Count IV of plaintiffs' complaint, which alleged that Forest Service's decision to construct proposed snowmobile trail to South Fowl Lake would violate specific standards and guidelines developed under Superior
National Forest Plan pursuant to National Forest Management Act, 16 USCS § 1604(a), and 36 C.F.R. § 219.7, because
(1) Forest Service's decision to construct South Fowl Trail did not conflict with standard S-WL-2 and, thus, was not
arbitrary and capricious under 5 USCS § 706(2)(A) as physical closure and obliteration of another trail could reasonably
be used to offset increase in snow-compacted trail created by South Fowl Trail; (2) Forest Service's explication of
S-WL-2 was not post-hoc rationalization that resulted solely from instant litigation as Forest Service adequately explained its rationale at time it selected alternative 2 route for South Fowl Trail; and (3) Forest Service's application of
guideline G-WL-6, which directed Forest Service to minimize impact of new snow-compacting routes in lynx analysis
units by concentrating such routes in existing developed areas rather than developing new recreational areas, was not
arbitrary and capricious under 5 USCS § 706(2)(A) as G-WL-6 did not require that new trails be located entirely within
existing developed areas of national forest but, rather, gave Forest Service considerable discretion in determining how
best to protect or improve habitat of lynx, threatened species under 16 USCS § 1531(c)(1), and minimize snow compacting, and while portion of South Fowl Trail was located within undeveloped forest along BWCAW, much of South
Fowl Trail was concentrated in developed areas with existing roads and trails. Izaak Walton League of Am., Inc. v Kimbell (2007, DC Minn) 516 F Supp 2d 982, motion gr, judgment entered, jur noted (2008, DC Minn) 2008 US Dist LEXIS
2382 and affd (2009, CA8 Minn) 558 F3d 751, 39 ELR 20052.
Where court had to balance issue of marine mammal safety and welfare as well as Navy's need to train utilizing
mid-frequency active sonar in its submarine training exercises in action that alleged violations of National Environmental Policy Act, 42 USCS §§ 4321-4370f, Endangered Species Act, 16 USCS §§ 1531-1599, and Coastal Zone Management Act, 16 USCS §§ 1451-1466, it was ordered that Navy recognize 12 nautical mile coastal exclusion zone, as well
as observation of certain safety zones where marine life was spotted; Navy was also ordered to monitor for presence of
Page 14
16 USCS § 1531
marine mammals for 60 minutes before employing MFA sonar. Ocean Mammal Inst. v Gates (2008, DC Hawaii) 546 F
Supp 2d 960, 67 Envt Rep Cas 1258.
Court of International Trade lacked jurisdiction over claims under 16 USCS § 1538(c), because Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, D.C., art. II, para. 2(a), Aug. 3, 1973,
T.I.A.S. No. 8249, 27 U.S.T. 1092, merely required regulation, not complete embargo of, imports of bigleaf mahogany.
Native Fed'n of the Madre De Dios River & Tributaries v Bozovich Timber Prods. (2007) 31 CIT 585, 491 F Supp 2d
1174, 29 BNA Intl Trade Rep 1692, 37 ELR 20090.
7. Practice and procedure
Where coalition of sportsmen failed to address its claim under Endangered Species Act (16 USCS §§ 1531 et seq.)
in its brief, court would not address claim; moreover, District Court's denial of inexplicably late motion to amend complaint to add claims under Clean Water Act (33 USCS § 1365)was proper. Swanson v United States Forest Serv. (1996,
CA9 Idaho) 87 F3d 339, 96 CDOS 4593, 96 Daily Journal DAR 7405, 34 FR Serv 3d 1413, 26 ELR 21466.
District Court did not abuse its discretion in denying state's motion to intervene in suit brought by environmental
organization and federal government as untimely where state's involvement in prior litigation left it fully aware of issues
of case. Save Our Springs Alliance v Babbitt (1997, CA5 Tex) 115 F3d 346, 38 FR Serv 3d 423, 27 ELR 21152.
Since lack of discretion in Congress's command to build Tamiami Trail bridge in Omnibus Appropriations Act,
2009, Pub. L. No. 111-8, 123 Stat. 524, precluded applicability of statutes like National Environmental Policy Act of
1969, 42 USCS §§ 4321 et seq., or Endangered Species Act of 1973, 16 USCS §§ 1531 et seq., which presumed agency
discretion as starting point, adoption of administrative finding as legislative finding barred judicial review of agency
action. Miccosukee Tribe of Indians of Fla. v United States Army Corps of Eng'rs (2010, CA11 Fla) 619 F3d 1289, 22
FLW Fed C 1441.
In action by environmental organizations against Army Corps of Engineers (Corps) and Fish and Wildlife Service
(FWS) alleging violation of Clean Water Act, 33 USCS §§ 1344 et seq., Migratory Bird Treaty Act, 16 USCS §§ 701 et
seq., Endangered Species Act, 16 USCS §§ 1531 et seq., National Environmental Policy Act, 42 USCS §§ 4321 et seq.,
and Administrative Procedure Act, 5 USCS §§ 706 et seq., Corps and FWS were entitled to transfer of venue under 28
USCS § 1404(a) and venue was proper in transferee district under 28 USCS § 1391(e)(2) because environmental organizations could have brought suit in transferee district when much of decision-making process occurred in federal agency
offices in that district, balance of private and public interests weighed in favor of transfer as environmental organizations' chosen forum had no meaningful ties to controversy and no particular interest in parties or subject matter, and
decision by Corps and FWS to issue subject permits was controversy local to transferee district and one in which state
in which transferee district was located and state's residents had great interest. Sierra Club v Flowers (2003, DC Dist
Col) 276 F Supp 2d 62.
Litigation under Endangered Species Act, 16 USCS §§ 1531 et seq., arising from issuance of interim rule listing
polar bear as threatened species was centralized per 28 USCS § 1407 in U.S. District Court for District of Columbia;
even though cases involved less onerous discovery than was typical, centralization was still appropriate because it
would eliminate duplicative discovery, simplify identification of underlying administrative record, and avoid imposition
of conflicting obligations on federal officials who were parties to suits. In re Polar Bear Endangered Species Act Listing
& ? 4 Rule Litig. (2008, Jud Pan Mult Lit) 588 F Supp 2d 1376.
8.--Controlling law
Indian, who is prosecuted under Endangered Species Act (Act) (16 USCS §§ 1531 et seq.) for shooting bald eagles,
is barred from asserting treaty right to hunt eagles as defense, even if Congress did not address treaty rights in Act sufficiently expressly to abrogate them, since Eagle Protection Act (16 USCS §§ 668 et seq.), which prohibits same conduct,
does abrogate Indians' rights. United States v Dion (1986) 476 US 734, 90 L Ed 2d 767, 106 S Ct 2216, 16 ELR 20676.
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.
9.--Standing
District Court erred in denying state's motion to intervene in suit brought by environmental organization against
city for violating 16 USCS §§ 1531 et seq., where state in its various capacities had interest in regulation of water rights.
Page 15
16 USCS § 1531
Sierra Club v City of San Antonio (1997, CA5 Tex) 115 F3d 311, 38 FR Serv 3d 194, 28 ELR 20124, reh den (1997,
CA5 Tex) 1997 US App LEXIS 26922.
District court erred in concluding that coalition of industries that relied upon Alabama waterways for their businesses did not have U.S. Const. art. III standing to seek declaratory and injunctive relief challenging Secretary of Interior's decision to list Alabama sturgeon as endangered species pursuant to Endangered Species Act (ESA), 16 USCS §§
1531-1544; coalition had economic standing; alleged pattern and practice presented substantial likelihood that alleged
injury would occur because coalition was operating against backdrop of continuing policy that was triggered by endangered species listing and was effectuated by machinery of ESA. Alabama-Tombigbee Rivers Coalition v Norton (2003,
CA11) 338 F3d 1244, 56 Envt Rep Cas 1897, 16 FLW Fed C 902 (criticized in Int'l Brominated Solvents Ass'n v Am.
Conf. of Governmental Indus. Hygienists, Inc. (2004, MD Ga) 20 BNA OSHC 2070).
Plaintiffs, who opposed construction of natural gas terminal on tribal land, did not lack standing to bring claims
under National Environmental Policy Act of 1969, 42 USCS §§ 4321 et seq., National Historic Preservation Act, 16
USCS §§ 470 et seq., and Endangered Species Act, 16 USCS §§ 1531 et seq., as land lease facilitating building constituted land use change allegedly endangering environment, tribal land historic preservation, and protected animals; thus,
plaintiffs alleged injury in fact; moreover, redressability requirement for U.S. Const. art. III standing was met as requested procedures might convince Bureau of Indian Affairs to withhold approval. Nulankeyutmonen Nkihtaqmikon v
Impson (2007, CA1 Me) 503 F3d 18, 37 ELR 20241, on remand, dismd, motion dismd, as moot (2008, DC Me) 573 F
Supp 2d 311, affd (2009, CA1 Me) 585 F3d 495, 40 ELR 20242.
Environmental groups' Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., claims against development
company were moot because Bald Eagle had been de-listed; therefore, no activities by company could constitute "take"
of bald eagle within meaning of ESA. Ctr. for Biological Diversity v Marina Point Dev. Co. (2008, CA9 Cal) 535 F3d
1026, 67 Envt Rep Cas 1289, 38 ELR 20200, reprinted as amd, reh den, reh, en banc, den, costs/fees proceeding, remanded (2009, CA9 Cal) 560 F3d 903, amd on other grounds (2009, CA9 Cal) 566 F3d 794 and op withdrawn, amd on
other grounds, petition den, as moot, remanded (2009, CA9 Cal) 560 F3d 903 and reprinted as amd, remanded (2009,
CA9 Cal) 566 F3d 794.
Organization which utilizes refuge system for recreational purposes, including observation of wildlife protected by
refuges, which alleges that allowing hunting on wildlife refuges forces members to witness animal corpses and environmental degradation, in addition to depleting supply of animals and birds that refuge visitors seek to view, has standing to challenge actions by United States Fish and Wildlife Service allowing hunting on some of national wildlife refuges in alleged violation of National Environmental Policy Act of 1969 (42 USCS §§ 4331 et seq.); Endangered Species
Act of 1973 (16 USCS §§ 1531 et seq.); Refuge Recreation Act of 1962 (16 USCS §§ 460k et seq.); and National Wildlife Refuge System Administrative Procedure Act (16 USCS §§ 668dd). Humane Soc'y of United States v Hodel (1988,
App DC) 268 US App DC 165, 840 F2d 45, 18 ELR 20636.
Summary judgment granted to government officials in suit brought against them by businesses and consumers of
hydroelectric power under Endangered Species Act (16 USCS §§ 1531 et seq.), where claims alleged that government's
plan to encourage growth in salmon population by increasing flow over dam would have harmful effect on supply and
price of hydroelectric power, because, although power consumers' stated economic loss was sufficient to establish injury, the injury was remote and failed to meet causation and redressability requirements for standing to sue. Pacific
Northwest Generating Coop. v Brown (1993, DC Or) 822 F Supp 1479, 37 Envt Rep Cas 1110, 23 ELR 21404, affd
(1994, CA9 Or) 25 F3d 1443, 94 CDOS 4037, 94 Daily Journal DAR 7573, 39 Envt Rep Cas 1615, 24 ELR 21111, amd
on other grounds (1994, CA9 Or) 38 F3d 1058, 94 CDOS 7394, 94 Daily Journal DAR 13563.
Forest user's suit against Forest Service to force compliance with substantive and procedural requirements of Endangered Species Act (16 USCS §§ 1531 et seq.) is moot, even if he can establish standing, because terms of settlement
of related case affect very compliance with Act which user seeks in his action. Hobbs v Sprague (2000, ND Cal) 87 F
Supp 2d 1007.
In action in which conservation organizations committed to preserving animal species in their natural habitats and
individuals involved in argali sheep conservation efforts filed suit against Secretary of Interior under Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., and Administrative Procedure Act (APA), 5 USCS § 702, intervenors were
granted summary judgment where plaintiffs lacked standing; because prohibition on importation of argali into U.S. and
listing of argali in Kyrgyzstan, Mongolia, and Tajikistan as endangered under ESA would not prohibit those governments from issuing hunting permits, and because prior U.S. import restrictions did not decrease hunting and poaching of
Page 16
16 USCS § 1531
argali, individuals had failed to demonstrate that they would likely obtain redress from favorable decision on merits.
Fund for Animals v Norton (2003, DC Dist Col) 295 F Supp 2d 1.
In action challenging legitimacy of State Petitions for Inventoried Roadless Area Management Rule, 70 Fed. Reg.
25,654 (May 13, 2005), environmental organizations and States met prudential standing requirements under Administrative Procedure Act, 5 USCS §§ 701 et seq., to establish their standing when challenged rule had been published as
final rule in Federal Register and interest they sought to protect was arguably within zone of interests to be protected or
regulated by National Environmental Policy Act, 42 USCS §§ 4321 et seq., and Endangered Species Act, 16 USCS §§
1531 et seq. Cal. ex rel. Lockyer v United States Dep't of Agric. (2006, ND Cal) 459 F Supp 2d 874, 64 Envt Rep Cas
1040 (criticized on other grounds in Wyoming v United States Dep't of Agric. (2008, DC Wyo) 570 F Supp 2d 1309, 38
ELR 20212) and affd (2009, CA9 Cal) 575 F3d 999, 69 Envt Rep Cas 1161, 39 ELR 20172, amd on other grounds
(2009, CA9 Cal) 2009 US App LEXIS 19218 and reprinted as amd (2009, CA9 Cal) 2009 US App LEXIS 19219.
Defendant had standing to challenge indictment under Religious Freedom Restoration Act (RFRA), 42 USCS §§
2000bb et seq., because standing to assert claim or defense under 42 USCS § 2000bb-1 was governed by general rules
of standing under U.S. Const. art. III, and government did not assert that there was no Article III case or controversy in
instant case, nor could it; moreover, although government asserted that defendant lacked standing to challenge Endangered Species Act, 16 USCS §§ 1531 et seq., permit system because he never applied for permit, where person was ineligible for permit under existing permit system, or where it would have been futile to apply for permit, that person need
not apply for permit to bring RFRA challenge. United States v Adeyemo (2008, ND Cal) 624 F Supp 2d 1081.
10.--Notice; hearing right
Determination by Fish and Wildlife Service to place species on its internal review list, to assign it candidate status,
and to thus declare that public petition filed on behalf of species under 16 USCS § 1533(b)(3)(A) was thus "redundant"
illegally circumvented notice and hearing requirements set forth in § 1533(b)(3)(B), and precluded judicial review, thus
violating notice and hearing requirements of Endangered Species Act, 16 USCS §§ 1531 et seq. Am. Lands Alliance v
Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137, reconsideration gr, vacated, in part on other grounds
(2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist Col) 2004 US Dist LEXIS 27533, dismd on other
grounds (2004, App DC) 2004 US App LEXIS 15243.
Endangered Species Petition Management Guidance policy that was used by Fish and Wildlife Service (FWS) for
determining categorizations of species as threatened or endangered violated notice and comment requirement embodied
in 16 USCS § 1533(h), was procedurally flawed, and was facially invalid because it allowed FWS and Secretary of Department of Interior to avoid mandatory, non-discretionary hearing requirements set forth in 16 USCS § 1533(b)(3)(B).
Am. Lands Alliance v Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137, reconsideration gr, vacated, in part
on other grounds (2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist Col) 2004 US Dist LEXIS 27533,
dismd on other grounds (2004, App DC) 2004 US App LEXIS 15243.
Leaseholders' citizen suit with respect to alleged taking--as defined by 16 USCS § 1532(19)--of endangered plover
was improper because leaseholders failed to provide requisite 60-day notice under 16 USCS § 1540(g) that they intended to sue state officers for taking plover in process of removing leaseholders' mobile homes; leaseholders' notice failed
to even mention plover and, therefore, never provided state opportunity to rectify asserted Endangered Species Act, 16
USCS §§ 1531 et seq., violation with respect to plover. Pulaski v Chrisman (2005, CD Cal) 352 F Supp 2d 1105, affd
(2005, CA9 Cal) 127 Fed Appx 993.
11.--Evidentiary matters
Recorded conversations, between defendant and confidential informant and between defendant and undercover
government agents concerning purchase, slaughter, transport, and sale of endangered species and preparation of false
paper work, were admissible coconspirator statements under Fed R. Evid. 801(d)(2)(E) in connection with prosecution
for violation of Endangered Species Act, 16 USCS §§ 1531 et seq., and Lacey Act, 16 USCS §§ 3371 et seq.; government showed by preponderance of evidence that it was more likely than not that statements were made in furtherance of
conspiracy to sell and purchase live endangered animals. United States v Kapp (2003, ND Ill) 56 Envt Rep Cas 1255.
Plaintiffs who asserted claim against circus operator and related corporation for mistreatment of Asian elephants in
violation of Endangered Species Act were not entitled to documents from defendants related to profitability, public relations, and advertising because defendants had admitted that they were for profit corporation and other commercial activity was not relevant to exhibition of elephants. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2006, DC Dist
Col) 233 FRD 209, 64 FR Serv 3d 171.
Page 17
16 USCS § 1531
12. Judicial review
Court of Appeals interprets de novo statutory provisions of Endangered Species Act (16 USCS §§ 1531 et seq.).
Enos v Marsh (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep Cas 1124, 15 ELR 20853.
Secretary must make comprehensive analysis of all ramifications of lease-sale under Outer Continental Shelf Land
Act (OCSLA) (43 USCS §§ 1331 et seq.) and consider all checks and balances and all mitigating measures adopted in
pursuance of OCSLA when considering whether there has been satisfaction of mandate of Endangered Species Act (16
USCS §§ 1531 et seq.) that no endangered life be jeopardized; such considerations may be considered "agency action"
subject to judicial review. North Slope Borough v Andrus (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).
Where plaintiffs, private citizens and other individuals, sued Bureau of Indian Affairs (BIA) pursuant to National
Environmental Policy Act, 42 USCS §§ 4321 et seq., National Historic Preservation Act, 16 USCS §§ 470 et seq., Indian Long-Term Leasing Act of 1955, 25 USCS § 415, and Endangered Species Act, 16 USCS §§ 1531 et seq., challenging approval of land lease, exception to 5 USCS § 704 requirement that remedies be exhausted prior to judicial review
under 5 USCS § 702 was not merited as they did not show that administrative review would be futile and equitable considerations weighed in favor of dismissal; inter alia, plaintiffs had not claimed that hierarchs made pre-announced decision on merits of administrative review, nor had they asserted that BIA denied them access to administrative review or
convinced federal district court that BIA's failure to give notice of right to appeal amounted to type of denial that exception contemplated; moreover, BIA's inaction did not meet standards for applying equitable estoppel, waiver did not apply as Fed. R. Civ. P. 12(a)(4) allowed party to file motion to dismiss before answering complaint and exhaustion was
not defense required to be affirmatively stated pursuant to Fed. R. Civ. P. 8(c), and equitable tolling did not apply. Nulankeyutmonen Nkihtaqmikon v Impson (2008, DC Me) 573 F Supp 2d 311, affd (2009, CA1 Me) 585 F3d 495, 40 ELR
20242.
13.--Final order
Certification pursuant to Fed. R. Civ. P. 54(b) of judgment upholding actions of Fish and Wildlife Service listing
distinct population segment of cactus ferruginous pygmy owl in southern Arizona as endangered species pursuant to
Endangered Species Act, 16 USCS § 1531 et seq., as final order where critical habitat designation was remanded to
agency for further consideration was required because listing decision was not final judgment where non-concurrent
listing and habitat designations were challenged in single action, administrative records overlapped, and district court
expressly retained jurisdiction to ensure that any future designation of critical habitat was consistent with its prior ruling. Nat'l Ass'n of Home Builders v Norton (2003, CA9 Ariz) 325 F3d 1165, 2003 CDOS 3100, 2003 Daily Journal
DAR 3963, 55 FR Serv 3d 137, appeal after remand, remanded (2003, CA9 Ariz) 340 F3d 835, 2003 CDOS 7463, 2003
Daily Journal DAR 9338, 56 Envt Rep Cas 2098, 33 ELR 20259, appeal after remand, decision reached on appeal by
(2009, CA9 Ariz) 2009 US App LEXIS 1926.
There exists no statutory review provision in Endangered Species Act, 16 USCS §§ 1531 et seq., that authorizes judicial review of agency action beyond that that is provided for in Administrative Procedure Act, 5 USCS §§ 701 et seq.;
thus, agency action must be final in order to be judicially reviewable, and if agency action is not final, court cannot
reach merits of dispute. Nat'l Ass'n of Home Builders v Norton (2005, App DC) 367 US App DC 240, 415 F3d 8, 60
Envt Rep Cas 2121, 35 ELR 20143.
Expert's declaration did not explain administrative record relating to National Marine Fisheries Service's final rule
classification of coho salmon under 16 USCS § 1531, but, rather, included expert's interpretation, opinion, and argument
of what ultimate conclusions record could and could not support, and, thus, could not be considered by court reviewing
final rule. Alsea Valley Alliance v Evans (2001, DC Or) 143 F Supp 2d 1214, summary judgment gr, remanded (2001,
DC Or) 161 F Supp 2d 1154, 53 Envt Rep Cas 1490, app dismd (2004, CA9 Or) 358 F3d 1181, 57 Envt Rep Cas 2094.
14.--Ripeness; mootness
Environmental group's appeal of order upholding federal government's policy for listing killer whales under Endangered Species Act, 16 USCS §§ 1531 et seq., was rendered moot after National Marine Fisheries Service issued final
rule listing Southern Resident killer whale as endangered species; declaring Distinct Population Segment Policy unlawful would have served no purpose in case because Service had listed Southern Resident as endangered species, group's
ultimate objective. Ctr. for Biological Diversity v Lohn (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676.
Page 18
16 USCS § 1531
Endangered Species Act, 16 USCS §§ 1531-1544, claim that developer's activities and planned project would harass bald eagles by disrupting their normal behavioral patterns became moot when bald eagle was delisted from endangered species list while case was on appeal; judgment was thus, vacated. Ctr. for Biological Diversity v Marina Point
Dev. Co. (2009, CA9 Cal) 560 F3d 903.
90-day finding by government agencies completely and irrevocably eradicated effects of alleged Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., violation, which finding mooted activists' claim and deprived court of jurisdiction; thus, court altered its judgment accordingly regarding ESA claim under Fed. R. Civ. P. 59(e). Fund for Animals
v Williams (2004, DC Dist Col) 311 F Supp 2d 1, affd (2005, App DC) 368 US App DC 238, 428 F3d 1059, 61 Envt
Rep Cas 1353, 35 ELR 20225, reh den (2006, App DC) 2006 US App LEXIS 32751.
15. Miscellaneous
To extent Cal. Fish & Game Code § 3003.1(c) prevents federal agencies from protecting species listed in Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., it is preempted by ESA. Nat'l Audubon Soc'y, Inc. v Davis (2002,
CA9 Cal) 307 F3d 835, 2002 CDOS 9815, 2002 Daily Journal DAR 11049, 55 Envt Rep Cas 1065, 33 ELR 20058.
Forest Service and Fish and Wildlife Service did not violate their duty to rely on best scientific data available when
they reasonably concluded that effects of road construction and timber harvesting would be sufficiently mitigated by
enforcement of conservation agreement with lumber company seeking easement to build road through grizzly bear habitat where agencies conducted reasonable evaluation of information and reached conclusion that, although disputable,
was not arbitrary and capricious. Selkirk Conservation Alliance v Forsgren (2003, CA9 Or) 336 F3d 944, 2003 CDOS
6301, 2003 Daily Journal DAR 7955, 33 ELR 20242.
In action by city against National Park Service in which city sought to enjoin NPS from implementing its Fort
Baker Plan for development and rehabilitation of former military base into national park, district court properly concluded that NPS did not violate Endangered Species Act, 16 USCS §§ 1531-1544; NPS prepared adequate biological
assessment with respect to Plan's effects on Mission Blue Butterfly and on salmonids and, although NPS did not comply
with 180-day deadline under 16 USCS § 1536(c)(1) for preparing biological assessment, city was not entitled to remedy
as result of tardiness on part of NPS because city pointed to no harm resulting from belated NPS biological assessment.
City of Sausalito v O'Neill (2004, CA9 Cal) 386 F3d 1186, 59 Envt Rep Cas 1304, 34 ELR 20121.
Evidence was sufficient to prove that defendant violated Endangered Species Act, 16 USCS §§ 1531 et seq., by
trafficking in and killing tigers and leopards, as expert testimony and defendant's own statements established that animals were tigers and leopards, not non-protected tiger-lion hybrids. United States v Kapp (2005, CA7 Ill) 419 F3d 666,
61 Envt Rep Cas 1020, 67 Fed Rules Evid Serv 1330.
Hybrids of two protected subspecies (e.g., protected tiger subspecies) are protected under Endangered Species Act,
16 USCS §§ 1531 et seq. United States v Kapp (2005, CA7 Ill) 419 F3d 666, 61 Envt Rep Cas 1020, 67 Fed Rules Evid
Serv 1330.
United States Fish and Wildlife Service had articulated reasonable basis--Washington western gray squirrel population's lack of biologically and ecologically distinguishing features--for its conclusion that loss of population would not
cause significant gap and its decision to deny petition to list squirrels as endangered "distinct population segment" under
16 USCS § 1533 was not arbitrary or capricious. Northwest Ecosystem Alliance v United States Fish & Wildlife Serv.
(2007, CA9 Or) 475 F3d 1136, 63 Envt Rep Cas 1993.
In case related to defendant's conviction on charges related to importation of protected reptiles in violation of Endangered Species Act, 16 USCS §§ 1531 et seq., and Lacey Act, 16 USCS §§ 3771 et seq., district court's misconstruction of remand mandate led to failure to consider all improperly excluded periods under Speedy Trial Act, 18 USCS §§
3161 et seq., and thus prevented district court from accurately weighing statutory factors under 18 USCS § 3162(a)(2)
when it dismissed defendant's indictment without prejudice; remand for review of entirety of pre-trial delay suffered by
defendant was necessary. United States v Lewis (2008, CA9 Cal) 518 F3d 1171.
Final environmental impact statement issued in connection with proposed oil and gas lease sales covering 25 million acres of outer continental shelf located off coast of Massachusetts is inadequate since statement (1) fails to describe
any alternatives that Secretary could have selected for lease sale date, (2) fails to present any significantly varied alternatives for sale from which Secretary could choose, and (3) attempts to cover area too large to be adequately
site-specific; both Secretarial Issue Decision and Environmental Assessment fail to rehabilitate environmental impact
statement, since both documents fail to provide kind of accurate, detailed information Secretary needs to balance needs
Page 19
16 USCS § 1531
of environment and oil industry. Massachusetts v Clark (1984, DC Mass) 594 F Supp 1373, 21 Envt Rep Cas 1673, 15
ELR 20132.
Court-ordered deadline for Fish and Wildlife Service (FWS) to provide its final designation of critical habitat is not
vacated upon government's motion, where rider to public law provided that none of remaining funds for year may be
used to make final determination regarding critical habitat, but where rider also provides that where Endangered Species
Act (ESA) (16 USCS §§ 1531 et seq.) has been interpreted in any court order to require making determination respecting species or habitats by certain date, ESA must not be applied to require that determination be made by that date if
making of determination is made impracticable by rescission made by preceding provision, because lawsuit at issue is
clearly action which requires, by court order, making of determination respecting habitat by certain date and because
FWS admits that final designation is not impracticable as matter of fact. Silver v Babbitt (1995, DC Ariz) 924 F Supp
972, 42 Envt Rep Cas 1016.
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.
Secretary of Interior's argument that requiring it to abide by court's order would violate Anti-Deficiency Act, 31
USCS § 1341, failed because it ignored fact that, in order to comply with Anti-Deficiency Act, Secretary had to be permitted to continue its ongoing 10-year violation of Endangered Species Act, 16 USCS §§ 1531 et seq. Ctr. for Biological Diversity v Norton (2003, DC Ariz) 304 F Supp 2d 1174.
Where 36 CFR pt. 294 unlawfully repealed former pt. 294, and thus 42 USCS §§ 4321 et seq., 16 USCS §§ 1531 et
seq., and 5 USCS §§ 701 et seq. were violated, injunctive relief issued and former pt. 294 was reinstated as if it had
never been repealed because to reinstate former pt. 294 from date of district court's order would impermissibly constitute partial repeal; injunctive relief extended to number of unapproved oil and gas leases given that approval without
"no surface occupancy" condition constituted government commitment and stripped government of ability to prohibit
potentially significant inroads on environment. California ex rel. Lockyer v United States Dep't of Agric. (2006, ND
Cal) 468 F Supp 2d 1140.
Summary judgment as to all dispositive issues was denied where Bureau of Reclamation's failure to meet its requirement to provide water to municipal users with which it had contracted, given ambiguities in agreements, and potential application of sovereign acts doctrine and § 3406 Central Valley Project Improvement Act. Stockton E. Water
Dist. v United States (2006) 70 Fed Cl 515, corrected, on reconsideration (2006) 72 Fed Cl 141, judgment entered
(2007) 75 Fed Cl 321, amd on other grounds, motion gr, in part, motion den, in part (2007) 76 Fed Cl 470 and affd in
part and revd in part on other grounds, remanded, vacated, in part (2009, CA FC) 583 F3d 1344, 39 ELR 20228.
2 of 15 DOCUMENTS
UNITED STATES CODE SERVICE
Copyright © 2011 Matthew Bender & Company,Inc.
a member of the LexisNexis Group (TM)
All rights reserved.
Page 20
16 USCS § 1532
*** 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 § 1532
§ 1532. Definitions
For the purposes of this Act-(1) The term "alternative courses of action" means all alternatives and thus is not limited to original project objectives and agency jurisdiction.
(2) The term "commercial activity" means all activities of industry and trade, including, but not limited to, the buying
or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided,
however, That it does not include exhibition of commodities by museums or similar cultural or historical organizations.
(3) The terms "conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures
which are necessary to bring any endangered species or threatened species to the point at which the measures provided
pursuant to this Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved, may include regulated taking.
(4) The term "Convention" means the Convention on International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
(5) (A) The term "critical habitat" for a threatened or endangered species means-(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance
with the provisions of section 4 of this Act [15 USCS § 1533], on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance
with the provisions of section 4 of this Act [15 USCS § 1533], upon a determination by the Secretary that such areas are
essential for the conservation of the species.
(B) Critical habitat may be established for those species now listed as threatened or endangered species for which
no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.
(6) The term "endangered species" means any species which is in danger of extinction throughout all or a significant
portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man.
(7) The term "Federal agency" means any department, agency, or instrumentality of the United States.
(8) The term "fish or wildlife" means any member of the animal kingdom, including without limitation any mammal,
fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or
other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes
any part, product, egg, or offspring thereof, or the dead body or parts thereof.
(9) The term "foreign commerce" includes, among other things, any transaction-(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a person in a foreign country; or
(D) between persons within the United States, where the fish and wildlife in question are moving in any country
or countries outside the United States.
(10) The term "import" means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce
into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction
constitutes an importation within the meaning of the customs laws of the United States.
Page 21
16 USCS § 1532
(11) [Repealed]
(12) The term "permit or license applicant" means, when used with respect to an action of a Federal agency for
which exemption is sought under section 7 [16 USCS § 1536], any person whose application to such agency for a permit
or license has been denied primarily because of the application of section 7(a) [16 USCS § 1536(a)] to such agency action.
(13) The term "person" means an individual, corporation, partnership, trust, association, or any other private entity;
or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality,
or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a
State; or any other entity subject to the jurisdiction of the United States.
(14) The term "plant" means any member of the plant kingdom, including seeds, roots and other parts thereof.
(15) The term "Secretary" means, except as otherwise herein provided, the Secretary of the Interior or the Secretary
of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of
1970 [5 USCS § 903 note]; except that with respect to the enforcement of the provisions of this Act and the Convention
which pertain to the importation or exportation of terrestrial plants, the term also means the Secretary of Agriculture.
(16) The term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of
any species of vertebrate fish or wildlife which interbreeds when mature.
(17) The term "State" means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pacific Islands.
(18) the term "State agency" means any State agency, department, board, commission, or other governmental entity
which is responsible for the management and conservation of fish, plant, or wildlife resources within a State.
(19) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.
(20) The term "threatened species" means any species which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range.
(21) The term "United States", when used in a geographical context, includes all States.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 3, 87 Stat. 885; July 12, 1976, P.L. 94-359, § 5, 90 Stat. 913; Nov. 10, 1978, P.L.
95-632, § 2, 92 Stat. 3751; Dec. 28, 1979, P.L. 96-159, § 2, 93 Stat. 1225; Oct. 13, 1982, P.L. 97-304, § 4(b), 96 Stat.
1420; Oct. 7, 1988, P.L. 100-478, Title I, § 1001, 102 Stat. 2306.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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.
"The customs laws of the United States", referred to in this section, appear generally as 19 USCS §§ 1 et seq.
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 para. (1), inserted ": Provided, however, That it does not include exhibition of commodities
by museums or similar cultural or historical organizations.".
Page 22
16 USCS § 1532
1978. Act Nov. 10, 1978, redesignated paras. (1) to (3) as paras. (2) to (4), respectively, and added new para. (1), redesignated para. (4) as para. (6), and paras. (5) to (7) as paras. (8) to (10), respectively, and added new paras. (5) and (7),
redesignated paras. (8) to (16) as paras. (13) to (21), respectively, and added new paras. (11) and (12), and substituted
paras. (16) and (18) for paras. (16) and (18), as so redesignated, which read:
"(16) The term 'species' includes any subspecies of fish or wildlife or plants and any other group of fish or wildlife
of the same species or smaller taxa in common spatial arrangement that interbreed when mature.
"(18) The term 'State agency' means the State agency, department, board, commission, or other governmental entity which is responsible for the management and conservation of fish or wildlife resources within a State.".
1979. Act Dec. 28, 1979, in para. (11), substituted "violate section 7(a)(2)." for "(A) jeopardize the continued existence
of an endangered or threatened species, or (B) result in the adverse modification or destruction of a critical habitat.".
1982. Act Oct. 13, 1982, deleted para. (11), which read: "The term 'irresolvable conflict' means, with respect to any action authorized, funded, or carried out by a Federal agency, a set of circumstances under which, after consultation as
required in section 7(a) of this Act, completion of such action would violate section 7(a)(2).".
1988. Act Oct. 7, 1988 substituted para. (13) for one which read: "The term 'person' means an individual, corporation,
partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality
of the Federal Government, of any State or political subdivision thereof, or of any foreign government."; and, in para.
(15), inserted "also".
Other provisions:
Termination of Trust Territories of the Pacific Islands. For termination of Trust Territories of the Pacific Islands
referred to in para. (17), see notes preceding 48 USCS § 1681.
NOTES:
Code of Federal Regulations:
Animal and Plant Health Inspection Service, Department of Agriculture--Endangered species regulations concerning
terrestrial plants, 7 CFR 355.1 et seq.
Related Statutes & Rules:
This section is referred to in 16 USCS § 1536.
Research Guide:
Am Jur:
35A Am Jur 2d, Fish, Game, and Wildlife Conservation §§ 65, 68.
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.
Page 23
16 USCS § 1532
Forms:
13 Fed Procedural Forms L Ed, Natural and Mineral Resources (2005) § 50:214.
12 Am Jur Pl & Pr Forms (2008), Fish and Game, § 30.
Annotations:
Validity, Construction, and Application of Antiquities Act of 1906, 16 U.S.C.A. §§ 431 et seq. [16 USCS §§ 431 et
seq.]. 11 ALR Fed 2d 623.
Construction and Application of State Endangered Species Acts. 44 ALR6th 325.
Texts:
2A Environmental Law Practice Guide (Matthew Bender), ch 12A, Citizen Suits §§ 12A.05, 12A.09.
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.
4 Environmental Law Practice Guide (Matthew Bender), ch 18B, Environmental Trading Programs § 18B.02.
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.
5 Environmental Law Practice Guide (Matthew Bender), ch 34A, Agricultural Environmental Law § 34A.05.
6 Environmental Law Practice Guide (Matthew Bender), ch 43, Alaska § 43.11.
8 Environmental Law Practice Guide (Matthew Bender), ch 81, Puerto Rico § 81.01.
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.
Stromberg. The Endangered Species Act Amendments of 1978: A Step Backwards? 7 Boston College Environmental Affairs L Rev 33.
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.
Ruhl. Endangered Species Act Innovations in the Post-Babbittonian Era--Are There Any? 14 Duke Envtl L & Pol'y
F 419, Spring 2004.
Estes. The effect of the Federal Endangered Species Act on state water rights. 22 Envtl L 1027, 1992.
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Moore. Seized by Nature: Suggestions on How to Better Protect Animals and Property Rights under the Endangered
Species Act. 12 Great Plains Nat Resources J 149, Spring 2008.
Sinden. The Economics of Endangered Species: Why Less is More in the Economic Analysis of Critical Habitat
Designations. 28 Harv Envtl L Rev 129, 2004.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
Kunich. Preserving the Womb of the Unknown Species with Hotspots Legislation. 52 Hastings LJ 1149, August
2001.
Kunich. Preserving the Womb of the Unknown Species with Hotspots Legislation. 52 Hastings LJ 1149, August
2001.
Cosens. Nez Perce Water Rights Settlement Article: Truth or Consequences: Settling Water Disputes in the Face of
Uncertainty. 42 Idaho L Rev 717, 2006.
Davison. Federal Agency Action Subject to Section 7(a)(2) of the Endangered Species Act. 14 Mo Envtl L & Pol'y
Rev 29, Fall 2006.
Broderick. Towards Common Sense in ESA Enforcement: Federal Courts and the Limits on Administrative Authority and Discretion under the Endangered Species Act. 44 Nat Resources J 77, Winter 2004.
Page 24
16 USCS § 1532
Goble. The Endangered Species Act: What We Talk About When We Talk About Recovery. 49 Nat Resources J 1,
Winter 2009.
Ruhl. Past, Present, and Future Trends of the Endangered Species Act. 25 Pub Land & Resources L Rev 15, 2004.
Armstrong. Critical Habitat Designations under the Endangered Species Act: Giving Meaning to the Requirements
for Habitat Protection. 10 SC Envtl LJ 53, Summer 2002.
Patlis. The Endangered Species Act: Thirty Years of Politics, Money, and Science: Riders on the Storm, or Navigating the Crosswinds of Appropriations and Administration of the Endangered Species Act: a Play in Five Acts. 16
Tul Envtl LJ 387, Summer 2003.
Brennan; Roth; Feldman; Greene. The Endangered Species Act: Thirty Years of Politics, Money, and Science:
Square Pegs and Round Holes: Application of the "Best Scientific Data Available" Standard in the Endangered Species
Act. 16 Tul Envtl LJ 387, Summer 2003.
Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.
Enzler; Bruskotter. Contested Definitions of Endangered Species: the Controversy Regarding How to Interpret the
Phrase "a Significant Portion of a Species' Range". 27 Va Envtl LJ 1, 2009.
Doremus. New Directions in Environmental Law: the Endangered Species Act: Static Law Meets Dynamic World.
32 Wash U JL & Pol'y 175, 2010.
Interpretive Notes and Decisions:
1. Generally; other terms 2. "All methods and procedures" 3. "Conserve", "conserving", "conservation" 4. "Critical
habitat" 5. "Distinct population segment" 6. "Import" 7. "Significant portion of its range" 8. "Species" 9.--"Endangered"
10.--"Threatened" 11. "Take" 12.--"Harm"
1. Generally; other terms
Suit by community of whales, dolphins, and porpoises for alleged violations of Endangered Species Act (ESA) and
other federal statutes in connection with development of sonar system was dismissed for, inter alia, lack of standing
because animals were not "persons" as defined under 16 USCS § 1532(13), part of ESA; also, claims were not ripe because there had been no proposal to use sonar system in challenged manner. Cetacean Cmty. v President of the United
States (2003, DC Hawaii) 249 F Supp 2d 1206, affd (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR
20120.
National Marine Fisheries Service properly interpreted phrase "which interbreeds when mature," as set forth in 16
USCS § 1532(16), to mean absolute reproductive isolation was not prerequisite to recognizing distinct population segment (DPS) where phrase was grammatically ambiguous, legislative history was silent as to consequences of interbreeding between members of DPS and other populations outside DPS, and alternative interpretation would have led to
potentially absurd results. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd
(2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.
2. "All methods and procedures"
State proposition banning use of certain traps and poisons to capture or kill wildlife is preempted, to extent that
federal agencies conclude that leghold trapping is necessary to protect endangered species, because federal authorities
are required to use "all methods and procedures" necessary to protect endangered species under 16 USCS § 1532. Nat'l
Audubon Soc'y v Davis (2000, ND Cal) 144 F Supp 2d 1160.
3. "Conserve", "conserving", "conservation"
"Conserve," as used in § 3(3) of Endangered Species Act (ESA) (16 USCS § 1532(3)) means, inter alia, to use
methods necessary to bring endangered or threatened species to point at which measures provided in Act are no longer
necessary. Sierra Club v Clark (1985, CA8 Minn) 755 F2d 608, 15 ELR 20391 (criticized in Humane Soc'y of the
United States v Kempthorne (2006, DC Dist Col) 481 F Supp 2d 53).
Endangered Species Act (ESA) mandates Secretary to issue such regulations as deemed necessary and advisable to
provide for conservation of threatened species, and conservation, under ESA (16 USCS § 1532(3)), is defined as all
methods and procedures which are necessary to bring endangered species or threatened species to point at which
Page 25
16 USCS § 1532
measures provided pursuant to this chapter are no longer necessary. Louisiana ex rel. Guste v Verity (1988, CA5 La)
853 F2d 322, 18 ELR 21351.
Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) complies with express purpose of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., to preserve ecosystems upon which endangered and
threatened species depend and to restore any such species to point at which measures provided pursuant to ESA are no
longer necessary, 16 USCS § 1532(3). Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904,
39 ELR 20061.
"Conservation," as defined in 16 USCS § 1532, cannot be limited to habitat control, but requires far more than
merely avoiding elimination of endangered species. Defenders of Wildlife v Andrus (1977, DC Dist Col) 428 F Supp
167, 9 Envt Rep Cas 1889, 7 ELR 20269.
Because under 16 USCS § 1539(a)(2)(A), (B), incidental take permit (ITP) applicants were only required to minimize and mitigate impact on species "to maximum extent possible" and were only required not to reduce likelihood of
survival and recovery of species, ITPs could be granted even if doing so threatened recovery of listed species, and to
extent that there was conflict between general definition of "conservation" under 16 USCS § 1523(3) or survival under
16 USCS § 1533(f)(1), and specific criteria in 16 USCS § 1539(a)(2)(B), specific statutory language controlled and
challenge by plaintiff Native American and environmental organizations against defendants, Secretaries of Departments
of Interior and Commerce, to No Surprises Rule and Permit Revocation Rule, 50 C.F.R. § 17.22(b), 17.32(b), failed.
Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235.
Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., authorizes Secretary of United States Department of Interior under 16 USCS § 1532(3) to live trap and transplant (reintroduce) rare species, if necessary, to bring endangered
or threatened species to point at which protection under ESA is no longer necessary. Defenders of Wildlife v Tuggle
(2009, DC Ariz) 607 F Supp 2d 1095.
4. "Critical habitat"
It is clear that Congress intended that conservation and survival be two different (though complementary) goals of
Endangered Species Act, 16 USCS §§ 1531 et seq.; clearly, then, purpose of establishing "critical habitat" is for government to carve out territory that is not only necessary for species' survival but also essential for species' recovery.
Gifford Pinchot Task Force v United States Fish & Wildlife Serv. (2004, CA9 Wash) 378 F3d 1059, 59 Envt Rep Cas
1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387 F3d 968.
Environmental impact statement was not required for project that involved logging on 578 acres scattered throughout national forest, of which 125 acres had been designated as critical habitat for northern spotted owl; proposed action
alternative had best potential to achieve project's purposes and it would have had long-term benefits effects for owl,
with only short-term minor adverse effects. Envtl. Prot. Info. Ctr. v United States Forest Serv. (2006, CA9 Cal) 451 F3d
1005.
Determining whether species uses area with sufficient regularity that it is "occupied" is highly contextual and
fact-dependent inquiry; relevant factors may include how often area is used, how species uses area, necessity of area for
species' conservation, species characteristics such as degree of mobility or migration, and any other factors that may
bear on inquiry; such factual questions are within purview of unique expertise of U.S. Fish and Wildlife Services and
are entitled to standard deference afforded such agency determinations. Ariz. Cattle Growers' Ass'n v Salazar (2009,
CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.
In designating critical habitat for Mexican Spotted Owl, U.S. Fish and Wildlife Services (FWS) permissibly rejected plaintiff cattle association's "resides in" interpretation as too narrow and acted within its authority to designate as
"occupied" areas that owl used with sufficient regularity that it was likely to be present during any reasonable span of
time; interpretation was sensible when considered in light of many factors that were relevant to factual determination of
occupancy, it was consistent with U.S. Supreme Court's decision in Amoco Production Co., it was supported by purpose
of Endangered Species Act (ESA), and it promoted ESA's conservation goals and comported with ESA's policy of "institutionalized caution." Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929,
40 ELR 20154.
Critical habitat--including "occupied critical habitat"--is defined in relation to areas necessary for conservation of
species, not merely to ensure its survival under 16 USCS § 1532(5)(A), and limiting U.S. Fish and Wildlife Services to
designating habitat only where Mexican Spotted Owl "resided" focused too narrowly on owl survival and ignored
Page 26
16 USCS § 1532
broader purpose of critical habitat designation. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160,
70 Envt Rep Cas 1929, 40 ELR 20154.
Process for designating critical habitat of Mexican Spotted Owl which U.S. Fish and Wildlife Services (FWS) utilized gave court strong foundation for its conclusion that agency did not arbitrarily and capriciously treat areas in which
owls were not found as "occupied"; FWS did not impermissibly change course in its final rule from its approach to prior
designations, amount of land designated was not disproportionate to number of owls, and inclusion of particular district
was not arbitrary and capricious; agency designated only "occupied" areas as critical habitat, even though it may not
have identified with certainty in all cases known owl constantly inhabiting that territory, and process that FWS used to
select habitat for designation, measures it took to exclude areas where owls were absent or use by owls was infrequent,
and its careful work to confirm presence of owls in designated areas demonstrated that FWS designated areas that correspond to habitat where owl was likely to be found--agency action was neither based on speculation nor counter to
evidence. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.
Industry groups, in context of their challenge to designation by U.S. Fish and Wildlife Service (FWS) of about
850,000 acres of land as critical habitat for 15 endangered or threatened vernal pool species, contended that FWS erred
by conflating standards for occupied and unoccupied habitat; although FWS described protected habitat as being composed of "occupied" subunits, it acknowledged that some areas that constitute unoccupied critical habitat would be present within some subunits; industry groups failed to explain how FWS's procedure ran afoul of statutory scheme, as,
under 16 USCS § 1532(5)(A), area constituted "critical habitat" if it met requirements for occupied habitat or for unoccupied habitat; there was no requirement that every area be classified as one or other, and, in case of vernal pool complexes, which might change dramatically from year to year, such classification might be impossible. Home Builders
Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR
20210.
Industry groups challenged U.S. Fish and Wildlife Service's (FWS) classification, as critical habitat, pursuant to 16
USCS § 1532(5)(A)(i), of about 850,000 acres of land for 15 endangered or threatened vernal pool species because, according to industry groups, areas in which physical and biological features essential to conservation of species did not
occur simultaneously; in vernal pool complexes, however, elements necessary to species' survival were present in distinct areas, and there was no reason that two elements for conservation of species had to be present in same area. Home
Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40
ELR 20210.
Industry groups, in context of their challenge to designation by U.S. Fish and Wildlife Service (FWS) of about
850,000 acres of land as critical habitat for 15 endangered or threatened vernal pool species, contended that FWS's determination of primary constituent elements, pursuant to 16 USCS § 1532(5)(A)(i), was invalid because FWS failed to
determine when protected species would be conserved, pursuant to 16 USCS § 1532(3); yet there was no reason why
FWS could not determine what elements were necessary for conservation without determining exactly when conservation would be complete; 16 USCS § 1532(5)(A) required before designation of occupied critical habitat was determination of what physical or biological features were essential to conservation of species; and it was unclear from industry
groups' argument why it was impossible to determine elements essential to goal without determining when goal should
be met. Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt
Rep Cas 1464, 40 ELR 20210.
Fish and Wildlife Service did not act arbitrarily in finding that, because plant species was no longer found in its
natural habitat and survived only in non-native vegetation, altered ecosystem in which it occurred could not reasonably
be considered its "critical habitat" where plant species had until recently been thought to be extinct and where it could
not reasonably be determined what factors in non-native growing area were "essential" to existence of plant. Enos v
Marsh (1984, DC Hawaii) 616 F Supp 32, 22 Envt Rep Cas 1072, affd (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep
Cas 1124, 15 ELR 20853.
Timber salvage sales in Mark Twain National Forest will be enjoined, even though Forest Service and Fish and
Wildlife Service agreed that proposed salvage sales were not likely to adversely affect endangered "Indiana bat," where
researchers note it is protection of summer habitat and foraging area that should be focus of new efforts to protect bat
against continued decline in population, because Forest Service cannot merely claim that no "known habitat" of bat will
be involved in sales when study after study observes that destruction of forest habitat at issue could have serious impact
on Indiana bat population. Bensman v United States Forest Serv. (1997, WD Mo) 984 F Supp 1242.
Page 27
16 USCS § 1532
Fish and Wildlife Service's designation of critical habitat for Alameda whipsnake was in violation of Endangered
Species Act, 16 USCS §§ 1531 et seq., where Service failed to identify within Final Rule physical or biological features
essential to conservation of species, required element of occupied land designated as critical habitat under 16 USCS §
1532(5)(A)(i). Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2003, ED Cal) 268 F Supp 2d
1197 (criticized in Home Builders Ass'n v United States Fish & Wildlife Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36
ELR 20226) and (criticized in Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal)
616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210).
Fish and Wildlife Service's designation of critical habitat for Alameda whipsnake was in violation of Endangered
Species Act, 16 USCS §§ 1531 et seq., where Service failed to comply with statutory requirement that under 16 USCS §
1532(5)(A)(i); Service was required to make finding, prior to designating particular area as critical habitat, that area in
question might require special management considerations and protections at some time in future; nothing in Service's
arguments pointed court to indication in Final Rule or Administrative Record that Service made that finding prior to
designation of critical habitat or that it was factor in designation. Home Builders Ass'n of N. Cal. v United States Fish &
Wildlife Serv. (2003, ED Cal) 268 F Supp 2d 1197 (criticized in Home Builders Ass'n v United States Fish & Wildlife
Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226) and (criticized in Home Builders Ass'n of N. Cal. v United
States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210).
Fish and Wildlife Service was entitled to deference in revising endangered seaside sparrow's critical habitat designation, but once it determined revision was necessary it was under obligation to take timely action in determining specific schedule and process. Biodiversity Legal Found. v Norton (2003, DC Dist Col) 285 F Supp 2d 1, 57 Envt Rep Cas
1916, motion gr, dismd (2004, App DC) 2004 US App LEXIS 9238.
Under Endangered Species Act, 16 USCS § 1532(5)(A), U.S. Army Corps of Engineers' issuance of wetlands
dredge-and-fill permit for construction of shopping center under § 404 of Clean Water Act, 33 USCS § 1344(b)(1), did
not jeopardize existence of endangered Alabama red-bellied turtle because wetland involved did not constitute critical
habitat. D'Olive Bay Restoration & Pres. Comm., Inc. v United States Army Corps of Eng'rs (2007, SD Ala) 513 F Supp
2d 1261, 65 Envt Rep Cas 1267.
Court rejected cattle growers' association's argument that Fish and Wildlife Service failed to comply with requirement under 16 USCS § 1532(5)(A)(i) by not making finding for each of 52 critical habitat units for Mexican Spotted
Owl; statute did not require Service to make separate determination for each of 52 habitats. Ariz. Cattle Growers' Ass'n
v Kempthorne (2008, DC Ariz) 534 F Supp 2d 1013, affd (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40
ELR 20154.
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's 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.
Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to designate "critical habitat"
for jaguar was set aside because decision was not based on best available scientific evidence; decision's heavy reliance
on expert opinion that no area in United States was critical for jaguar's survival unduly limited consideration by FWS of
recovery goal of Endangered Species Act, 16 USCS §§ 1531 et seq. Ctr. for Biological Diversity v Kempthorne (2009,
DC Ariz) 607 F Supp 2d 1078, 39 ELR 20073.
Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to designate "critical habitat"
for jaguar was set aside because FWS articulated no rational basis for invoking exceedingly rare imprudence exception
to designation of critical habitat. Ctr. for Biological Diversity v Kempthorne (2009, DC Ariz) 607 F Supp 2d 1078, 39
ELR 20073.
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
Page 28
16 USCS § 1532
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 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.
5. "Distinct population segment"
Section 1532(16) of Endangered Species Act, 16 USCS § 1532(16), does not require that interbreeding organisms
be placed in same "distinct population segment." Modesto Irrigation Dist. v Gutierrez (2010, CA9 Cal) 619 F3d 1024,
71 Envt Rep Cas 1583, 40 ELR 20226.
Fish and Wildlife Service's policy for identification of "distinct population segments" (DPSs) is arbitrary, capricious, and abuse of discretion, where policy means there can only be one subspecies in DPSs, because that policy limits
DPSs in manner which was not contemplated by Congress in enacting Endangered Species Act (16 USCS §§ 1531 et
seq.), and is not supported by information in administrative record. Southwest Ctr. for Biological Diversity v Babbitt
(1997, DC Ariz) 980 F Supp 1080, 45 Envt Rep Cas 2015.
It was not contrary to clear congressional intent for National Marine Fisheries Service and Fish and Wildlife Service (Services) to consider significance of distinct population segment (DPS) when determining whether that population
was entitled to Endangered Species Act listing; term "distinct population segment" was ambiguous and, as Services
concluded when promulgating DPS policy, DPS must be both discrete and significant because interests of conserving
genetic diversity would not be well served by efforts directed at either well-defined but insignificant units or entities
believed to be significant but around which boundaries cannot be recognized; therefore, DPS policy was not contrary to
congressional intent regarding ESA and it was reasonable interpretation of ambiguous term. Ctr. for Biological Diversity v Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340, Vacated on other grounds, remanded (2007,
CA9 Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op withdrawn on other grounds (2007, CA9
Wash) 511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676, 38 ELR 20001.
6. "Import"
"Import" under both Lacey Act (16 USCS § 3371) and Endangered Species Act (16 USCS § 1532) includes unscheduled landing in Miami of aircraft en route from Bolivia to Paris with cargo of caiman hides. United States v
3,210 Crusted Sides of Caiman Crocodilus Yacare (1986, SD Fla) 636 F Supp 1281, 16 ELR 20889.
Court of International Trade lacked jurisdiction over claims under 16 USCS § 1538(c), because Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, D.C., art. II, para. 2(a), Aug. 3, 1973,
T.I.A.S. No. 8249, 27 U.S.T. 1092, merely required regulation, not complete embargo of, imports of bigleaf mahogany.
Native Fed'n of the Madre De Dios River & Tributaries v Bozovich Timber Prods. (2007) 31 CIT 585, 491 F Supp 2d
1174, 29 BNA Intl Trade Rep 1692, 37 ELR 20090.
7. "Significant portion of its range"
U.S. Fish and Wildlife Service's conclusion that three of lynx's four regions, which comprised three-quarters of
lynx's historical regions and in two of which lynx was no longer viable, were collectively not significant portion of
lynx's range was arbitrary and capricious and contrary to plain meaning of and broad purpose of Endangered Species
Act, 16 USCS §§ 1531 et seq., to protect endangered and threatened species. Defenders of Wildlife v Norton (2002, DC
Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89 Fed Appx 273.
Secretary of Interior's interpretation of "significant portion of its range," as used in 16 USCS § 1532(6), was not
reasonable because Secretary's conclusion that viability of two core populations in Eastern and Western distinct population segments made all other portions of gray wolf's historical or current range insignificant and unworthy of stringent
protection was contrary to Endangered Species Act, 16 USCS §§ 1531-1543, and appellate court precedent. Defenders
of Wildlife v Sec'y, United States DOI (2005, DC Or) 354 F Supp 2d 1156, 35 ELR 20033.
Final rule to reclassify and remove gray wolf from list of endangered and threatened wildlife in portions of conterminous U.S. issued by Fish and Wildlife Service made all other portions of wolf's historical or current range outside of
core gray wolf populations insignificant and unworthy of stringent protection; Secretary of Department of Interior's
Page 29
16 USCS § 1532
conclusion that gray wolf was not at risk in significant portion of its range was contrary to plain meaning of Endangered
Species Act (ESA), 16 USCS §§ 1531-1544, phrase "significant portion of its range," and therefore, was arbitrary and
capricious application of ESA. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822
(criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).
In rejecting environmentalists' challenge to decision not to list Rio Grande cutthroat trout as endangered, court upheld Fish and Wildlife Service's interpretation of phrase "significant portion of range" in definition of "endangered" to
mean portion that was so important to continued existence of species that threats to species in that area could have effect
of threatening viability of species as whole. Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271.
In coalition's action challenging U.S. Fish and Wildlife Service's (FWS) decision to remove Yellowstone grizzly
bear distinct population segment from list of threatened species under 16 USCS § 1533, FWS was entitled to summary
judgment on claim that FWS failed to properly evaluate whether grizzlies were recovered across "significant portion of
their range" for purposes of 16 USCS § 1532(20); FWS offered reasonable interpretation of ambiguous phrase "significant portion of its range." Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39
ELR 20214.
8. "Species"
Species can be extinct throughout significant portion of its range if there are major geographical areas in which it is
no longer viable but once was; those areas need not coincide with national or state political boundaries, although they
can. Defenders of Wildlife v Norton (2001, CA9 Cal) 258 F3d 1136, 2001 CDOS 6429, 2001 Daily Journal DAR 7927,
53 Envt Rep Cas 1297, 31 ELR 20846.
District court decision interpreting term "species" under 16 USCS §§ 1531(b) and 1532(16) of Endangered Species
Act was irrelevant to interpreting meaning of term "stock" in 6 USCS § 1802(37) of Magnuson-Stevens Fishery Conservation and Management Act, 16 USCS §§ 1801 et seq; there was no basis for suggesting that "species" and "stock"
had same definition. Or. Trollers Ass'n v Gutierrez (2006, CA9 Or) 452 F3d 1104, 36 ELR 20133, cert den (2007) 549
US 1338, 127 S Ct 2028, 167 L Ed 2d 762.
Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) (Hatchery Listing Policy) is
consistent with both plain language of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., and with statutory goal
of preserving natural populations; ESA requires National Marine Fisheries Service to determine whether any species is
endangered species or threatened species under 16 USCS § 1533(a)(1), and species, in turn, includes any subspecies of
fish or wildlife or plants, and any distinct population segment under 16 USCS § 1532(16); consistent with plain language of ESA, Hatchery Listing Policy conducts status review of entire "species"--no more, and no less. Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.
In listing steelhead as distinct species, separate from rainbow trout, National Marine Fisheries Service (NMFS) did
not violate Endangered Species Act (ESA) because definition of "species" in 16 USCS § 1532(16) did not require
NMFS to place interbreeding steelhead and rainbow trout in same "distinct population segment." Modesto Irrigation
Dist. v Gutierrez (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.
National Marine Fisheries Service's decision to close access to fisheries in particular area due to impacts on loggerhead and leatherback turtles was not inconsistent with 16 USCS § 1532(16) where agency's first biological opinion
had referred to impacts on non-listed subpopulation, but second biological opinion clarified relationship between harm
on that subpopulation and entire species of loggerhead turtles, which was listed under Endangered Species Act, 16
USCS §§ 1531 et seq. Blue Water Fishermen's Ass'n v Nat'l Marine Fisheries Serv. (2002, DC Mass) 226 F Supp 2d
330.
Species categorized as "endangered species" under Endangered Species Act, 16 USCS §§ 1531 et seq., are those
that are in danger of extinction throughout all or significant portion of their range, and "threatened species" are those
that are likely to become endangered species within foreseeable future. Am. Lands Alliance v Norton (2003, DC Dist
Col) 242 F Supp 2d 1, 33 ELR 20137, reconsideration gr, vacated, in part on other grounds (2003, DC Dist Col) 360 F
Supp 2d 1, injunction gr (2004, DC Dist Col) 2004 US Dist LEXIS 27533, dismd on other grounds (2004, App DC)
2004 US App LEXIS 15243.
In action by environmental organizations against Secretary of Interior, Bureau of Reclamation (BOR), Fish and
Wildlife Service (FWS), and National Marine Fisheries Service (NMFS), alleging violation of consultation requirements of Endangered Species Act with regard to protected species in Colorado River Delta in Mexico, summary judg-
Page 30
16 USCS § 1532
ment was granted for Secretary of Interior, BOR, NWS, and NMFS under Fed. R. Civ. P. 56(c) where, although environmental organizations had standing to bring their action because they demonstrated that impacts on species in question had direct effect on their aesthetic, scientific, recreational, and economic interests, and their declarations were sufficiently detailed to show that their members suffered injury in fact to particularized interest, and that BOR's ongoing
operations on lower Colorado River had and would continue to have significant impact on delta region and species in
question, record contained no suggestion of way, with or without consultation, for BOR to ensure that more water
reached species listed as endangered or threatened under 16 USCS § 1532 in Colorado River Delta, Law of River strictly limited BOR's authority to release additional waters to Mexico, 16 USCS § 1536(a)(2) did not loosen those limitations or expand BOR's authority, and BOR did not have discretion to manipulate water delivery in United States in order to create excess releases for Colorado River Delta. Defenders of Wildlife v Norton (2003, DC Dist Col) 257 F Supp
2d 53, 33 ELR 20162, app dismd (2003, App DC) 74 Fed Appx 63.
Fish and Wildlife Service's (FWS's) refusal to list westslope cutthroat trout as threatened or endangered species
under Endangered Species Act, 16 USCS §§ 1532(6), 1532(20), 1533(c), was judicially upheld; its use of morphological
rather than strictly genetic method and its inclusion of hybridized fish in its status review was not arbitrary under Administrative Procedures Act, 5 USCS § 706(2)(A), because FWS applied five factors of potential threat to species, including threat of hybridization, under 16 USCS § 1533(a)(1). Am. Wildlands v Kempthorne (2007, DC Dist Col) 478 F
Supp 2d 92.
U.S. Fish and Wildlife Service did not violate Administrative Procedure Act, 5 USCS § 706, of when it reexamined
its decision not to list Florida black bear as threatened or endangered under 16 USCS Endangered Species Act, §§ 1532
and 1533, because, on remand, agency was required to consider regulations and data available when decision was first
made rather than later data; decision was not arbitrary or capricious where agency relied on best available scientific and
commercial data available at time decision was first made and it was not necessary to analyze extent of habitat loss on
private lands. Defenders of Wildlife v Kempthorne (2008, DC Dist Col) 535 F Supp 2d 121.
Lynx's status as threatened species, as defined in 16 USCS § 1532(20), as opposed to endangered species, as defined in 16 USCS § 1532(6), does not take it outside prohibitions against take, pursuant to 50 CFR § 17.31(a). 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.
Endangered Species Act, 16 USCS §§ 1531 et seq., did not unambiguously preclude drawing distinctions between
naturally-spawned and hatchery-born fish during any stage of listing process where nothing in definition of species set
forth 16 USCS § 1532(16) or its legislative history spoke to issue, leaving gap for implementing agencies to fill. Cal.
State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024,
71 Envt Rep Cas 1583, 40 ELR 20226.
9.--"Endangered"
On challenge by plaintiffs, fisherman and environmental groups, due to lack of genetic (introgression) data on hybridization, it was not unreasonable for defendants, heads of Department of Interior and U.S. Fish and Wildlife Service,
to rely on morphological (characteristic) data to refuse to classify westslope cutthroat trout (WCT) as endangered or
threatened under 16 USCS § 1532(6), (20),--even though some of those counted may have had introgression levels
greater than 20%; under 16 USCS § 1533(b)(1)(A), listing determinations were to be made solely on best scientific and
commercial data available and genetic data was not available for large majority of WCT populations. Am. Wildlands v
Kempthorne (2008, App DC) 382 US App DC 78, 530 F3d 991, 67 Envt Rep Cas 1107, 38 ELR 20165.
Fish and Wildlife Service proposed rule to reclassify subpopulation of grizzly bears from "threatened" to "endangered" under 16 USCS § 1532(16) was not final agency action subject to judicial review, and, thus, environmental
groups could not challenge Service's alleged combination of 2 subpopulations as single group, where Service did not
rely on distinct population segment analysis in making listing decisions, and did not treat subpopulations as single population in later notices. Calton v Babbitt (2001, DC Dist Col) 147 F Supp 2d 4, 53 Envt Rep Cas 1157.
10.--"Threatened"
District court erred in granting summary judgment in favor of Secretary of Interior in action by conservation organizations that challenged Secretary's decision to withdraw rule proposing that flat-tailed horned lizard be listed as
threatened species under Endangered Species Act (ESA), 16 USCS §§ 1532(20), and 1533; decision was arbitrary and
Page 31
16 USCS § 1532
capricious under 5 USCS § 706(2)(A) because Secretary improperly assessed significance of lizard's lost range based on
unsupported finding that lizard populations persisted throughout most of species' current range. Tucson Herpetological
Soc'y v Salazar (2009, CA9 Ariz) 566 F3d 870, 68 Envt Rep Cas 2131, 39 ELR 20107.
Under 16 USCS § 1532(16), National Marine Fisheries Service acted arbitrarily and capriciously when it decided to
list only naturally spawning coho salmon as "threatened" and to exclude hatchery spawned coho salmon from listing
protection, even if determined to be part of same distinct population segment as natural coho salmon populations, because they were not considered to be essential for recovery, inasmuch as Service relied on factors on which Congress
did not intend it to rely when it made listing decision based on distinctions below that of subspecies or distinct population segment of species. Alsea Valley Alliance v Evans (2001, DC Or) 161 F Supp 2d 1154, 53 Envt Rep Cas 1490, app
dismd (2004, CA9 Or) 358 F3d 1181, 57 Envt Rep Cas 2094.
Fish and Wildlife Service (FWS) was entitled to summary judgment in action under 16 USCS § 1540(g)(1)(A),
which was filed by builder associations challenging FWS' designation of Central California population of California
tiger salamander as "threatened" under Endangered Species Act because FWS articulated standard, which was
five-factor threats analysis under 16 USCS § 1533(a)(1) and standard under 16 USCS § 1532(20), for ascertaining salamander's threatened status; listing was not rendered arbitrary and capricious under 5 USCS § 706(2)(A) just because
threat estimates decreased as other facts, such as habitat loss and development risks, supported listing. Home Builders
Ass'n v United States Fish & Wildlife Serv. (2007, ND Cal) 529 F Supp 2d 1110, affd (2009, CA9 Cal) 321 Fed Appx
704, 39 ELR 20086.
Fish and Wildlife Service's determination that listing of polar bear as threatened under 16 USCS § 1532 of Endangered Species Act created ban on import of sport-hunted polar bear trophies under 16 USCS §§ 1371 and 1372 of Marine Mammal Protection Act was final rule subject to review under 5 USCS § 704 because ruling definitively established that any application for permit under 16 USCS § 1374(c)(5) would not be granted. Polar Bear Endangered Species Act Listing & ? 4 Rule Litig. v Salazar (2009, DC Dist Col) 627 F Supp 2d 16, summary judgment proceeding,
remanded (2010, DC Dist Col) 41 ELR 20008.
U.S. Fish and Wildlife Service's (FWS) decision to designate Distinct Population Segment (DPS) for Greater Yellowstone Area grizzly bear population and remove population from "threatened" species list under 16 USCS §§
1532(20) and 1533 was arbitrary and capricious under 5 USCS § 706(2)(A); regulatory mechanisms relied upon by FWS
were inadequate, and record did not support FWS's conclusion that whitebark pine declines did not pose threat to Yellowstone grizzly bear DPS. Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39
ELR 20214.
11. "Take"
Maintenance of animals in critical habitat of endangered species is violation of Endangered Species Act if those
animals pose threat to endangered species by their destruction of natural habitat; such maintenance constitutes "taking"
within meaning of 16 USCS § 1532. Palila v Hawaii Dep't of Land & Natural Resources (1981, CA9 Hawaii) 639 F2d
495, 15 Envt Rep Cas 1741, 11 ELR 20446.
Eliminating habitat of species can constitute "taking" that species for purposes of 16 USCS § 1538. Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal DAR 7051, 53
Envt Rep Cas 2129, 31 ELR 20778.
Property owners identified no duty requiring federal authorities to act in manner under 16 USCS § 1532(19), Endangered Species Act, 16 USCS §§ 1531 et seq., that would likely redress their alleged injuries concerning beach erosion on Fire Island. N.Y. Coastal P'ship, Inc. v United States DOI (2003, CA2 NY) 341 F3d 112, cert den (2005) 546 US
820, 126 S Ct 352, 163 L Ed 2d 61.
Trial court properly granted summary judgment to federal forest service where environmental organization did not
show that state livestock agency was violating any environmental laws despite restrictions imposed on permit issued to
it by federal forest service so that state livestock agency could operate its bison capture facility in Montana; in particular, environmental organization did not show that Endangered Species Act, 16 USCS § 1538 (ESA) was violated because
no causal connection had been shown between alleged harm and state livestock agency's actions, and, thus, no proven
"taking" was established, and organization did not show that National Environmental Policy Act, 42 USCS § 4332, was
violated because federal forest service took required "hard look" at environmental consequences of its actions, and its
decision not to prepare supplemental analysis was not arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. Cold Mt. v Garber (2004, CA9 Mont) 375 F3d 884, 58 Envt Rep Cas 1833, 34 ELR 20055.
Page 32
16 USCS § 1532
District court's issuance of injunction pursuant to Endangered Species Act, 16 USCS §§ 1531-1544, was affirmed
where National Wildlife Foundation had altered its own interpretation of statute significantly in its biological opinion
concerning salmon and steelhead in Federal Columbia River Power System, and agency's interpretation was thus entitled to little deference. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2005, CA9 Or) 418 F3d 971, amd on other
grounds (2005, CA9 Or) 422 F3d 782, 60 Envt Rep Cas 1929, injunction gr, in part, on remand (2005, DC Or) 2005 US
Dist LEXIS 39509, affd (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.
Environmental groups' Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., claims against development
company were moot because Bald Eagle had been de-listed; therefore, no activities by company could constitute "take"
of bald eagle within meaning of ESA. Ctr. for Biological Diversity v Marina Point Dev. Co. (2008, CA9 Cal) 535 F3d
1026, 67 Envt Rep Cas 1289, 38 ELR 20200, reprinted as amd, reh den, reh, en banc, den, costs/fees proceeding, remanded (2009, CA9 Cal) 560 F3d 903, amd on other grounds (2009, CA9 Cal) 566 F3d 794 and op withdrawn, amd on
other grounds, petition den, as moot, remanded (2009, CA9 Cal) 560 F3d 903 and reprinted as amd, remanded (2009,
CA9 Cal) 566 F3d 794.
Environmental group has failed to show likelihood of proving "take" of endangered species (red-cockaded woodpecker) to justify preliminary relief under 16 USCS § 1532(19) from government's cutting of pine trees in wilderness
areas in order to prevent infestation of southern pine beetle, where any threat to woodpecker's habitat from cutting occurs primarily, if not exclusively, in breeding season which ended in mid-July, and where plaintiffs were only able to
offer one siting of abandoned colony and there is no indication that cutting program was responsible for woodpecker's
abandoning of this colony. Sierra Club v Block (1985, DC Dist Col) 614 F Supp 488, 15 ELR 20775.
Water district is enjoined from pumping water from river for irrigation during winter-run chinook salmon's peak
downstream migration, where district's pumping has resulted in 97 percent reduction in fish's population, causing fish to
be listed as endangered species under 16 USCS § 1533(a)(1), because pumping constitutes a taking of fish pursuant
listed under 16 USCS § 1532(19) as force of district's pumps causes fish to be impinged on fish screen, entrained
through the screen, or fall prey to predation by other fish in district's diversion channel. United States v Glenn-Colusa
Irrigation Dist. (1992, ED Cal) 788 F Supp 1126, 22 ELR 20877.
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.
Leaseholders' citizen suit with respect to alleged take of endangered plover in violation of 16 USCS § 1532(19) was
improper because leaseholders failed to provide requisite 60-day notice under 16 USCS § 1540(g) that they intended to
sue state officers for taking plover in process of removing leaseholders' mobile homes; leaseholders' notice failed to
even mention plover and, therefore, never provided State opportunity to rectify asserted Endangered Species Act, 15
USCS §§ 1531 et seq., violation with respect to plover. Pulaski v Chrisman (2005, CD Cal) 352 F Supp 2d 1105, affd
(2005, CA9 Cal) 127 Fed Appx 993.
Where, in its application for incidental take permit, city's habitat conservation plan, which was submitted pursuant
to 16 USCS § 1539(a)(2)(A), distinguished between "naturally occurring" vernal pools and "road rut" vernal pools, U.S.
Fish and Wildlife Service (FWS) did not analyze, pursuant to § 1539(2)(B), impact of takings, pursuant to 16 USCS §
1532(19), of unnatural instances of vernal pool species; thus, FWS improperly authorized take of vernal pool species in
those unnatural locations by authorizing city to take vernal pool species outside of jurisdictional wetlands; it was arbitrary to distinguish between vernal pools within or outside of U.S. Army Corps of Engineers' wetlands jurisdiction as
basis for providing different levels of protections for endangered species that might inhabit or rely upon those bodies of
water. 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 Asian elephants were listed as endangered under 16 USCS § 1533, circus owner's Asian elephants were not
exempt from taking prohibition of 16 USCS § 1538, as defined by 16 USCS § 1532(19), because exemption was unambiguously applicable to other provisions; thus, disputed facts existed, precluding summary judgment, as to whether
owner's treatment of elephants not subject to captive-bred wildlife permit constituted taking under Endangered Species
Act. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas
1243.
Page 33
16 USCS § 1532
Under 16 USCS § 1536(b)(3)(A), illegal take of species occurred when take of that species was result of action by
person or agency, and in contrast, takes that resulted from acts of nature did not fall within prohibition of § 9 of Endangered Species Act and under 16 USCS § 1532(19) could not be blamed on Federal agency, and because rainfall and other precipitation caused natural filling of lakes in question and as lakes filled, surrounding areas flood which could cause
take of listed species and their habitats, that was not illegal take not result of artificial breaching of sand bar between
lakes and Pacific Ocean as permitted in defendant Army Corps of Engineers' permit and plaintiff water district's argument to contrary failed. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist
Col) 538 F Supp 2d 242.
Even if lynx is harmlessly trapped, it has been subject to prohibited take under 16 USCS § 1532(19). 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.
County dike district violated Endangered Species Act because reconstructing tidegates resulted in harm to threatened Chinook salmon, which constituted taking under 16 USCS §§ 1532(19) and 1538(a)(1)(B) in that taking prohibition was extended to salmon under 16 USCS § 1533(d). Swinomish Indian Tribal Cmty. v Skagit County Dike Dist. No.
22 (2008, WD Wash) 618 F Supp 2d 1262.
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.
12.--"Harm"
Secretary does not exceed authority under Endangered Species Act in promulgating 50 CFR § 17.3, which provides
that "harm" in the definition of "take" (16 USCS § 1532(19)) means an act which actually kills or injures wildlife and
may include significant habitat modification or degradation. Babbitt v Sweet Home Chapter of Communities for a Great
Or. (1995) 515 US 687, 132 L Ed 2d 597, 115 S Ct 2407, 95 CDOS 4966, 95 Daily Journal DAR 8566, 40 Envt Rep Cas
1897, 25 ELR 21194, 9 FLW Fed S 291, subsequent app (1995, App DC) 1995 US App LEXIS 31484 and (criticized in
Loggerhead Turtle v County Council of Volusia County (1998, CA11 Fla) 148 F3d 1231, 47 Envt Rep Cas 1014, 41 FR
Serv 3d 563, 28 ELR 21546, 11 FLW Fed C 1659).
Habitat destruction that could drive endangered species to extinction constitutes "harm" and therefore "taking" under Endangered Species Act (16 USCS §§ 1531-1543), since Secretary's construction of statute, which is entitled to deference if it is reasonable and not in conflict with Congressional intent, defines "harm" as including not only physical
injury, but also injury caused by impairment of essential behavior patterns via habitat modifications that can have significant and permanent effects on listed species, and such construction is consistent with Congressional intent, including
intent that term "take" be defined in broadest possible manner; accordingly, district court's interpretation of "harm" as
including habitat destruction that could result in extinction, and findings to that effect, are sufficient to sustain order for
removal of sheep that destroyed woodland habitat upon which endangered species of bird depends. Palila v Hawaii
Dep't of Land & Natural Resources (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.
Under 50 CFR § 17.3, "harm," as used in Endangered Species Act of 1973 (16 USCS §§ 1532(19) and 1538), includes significant environmental modification or degradation, which actually injures or kills wildlife; thus, where act
actually injures or kills wildlife by significantly impairing essential breeding patterns, including breeding, feeding, or
sheltering, it constitutes violation of 16 USCS § 1538(a)(1)(B). Palila v Hawaii Dep't of Land & Natural Resources
(1985, DC Hawaii) 631 F Supp 787, 16 ELR 20669, findings of fact/conclusions of law (1986, DC Hawaii) 649 F Supp
1070, 17 ELR 20514, affd (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.
Environmental protection organization and marbled murrelet are granted injunctive relief against lumber company
permanently enjoining implementation of timber harvest plan, where under plan, marbled murrelets will be killed or
injured by logging operations or through significant impairment of their essential behavioral patterns, because plaintiffs
established that plan would "harm" marbled murrelet. Marbled Murrelet v Pacific Lumber Co. (1995, ND Cal) 880 F
Supp 1343, 41 Envt Rep Cas 1135, 25 ELR 21301, affd (1996, CA9 Cal) 83 F3d 1060, 96 CDOS 3205, 96 Daily Jour-
Page 34
16 USCS § 1532
nal DAR 5299, 42 Envt Rep Cas 1661, 44 Fed Rules Evid Serv 349, 26 ELR 20995, amd on other grounds, reh, en banc,
den, motion den (1996, CA9 Cal) 83 F3d 1060, 96 CDOS 4726, 96 Daily Journal DAR 7536 and cert den (1997) 519
US 1108, 136 L Ed 2d 831, 117 S Ct 942, 44 Envt Rep Cas 1128 and (criticized on other grounds in Cetacean Cmty. v
President of the United States (2003, DC Hawaii) 249 F Supp 2d 1206).
Federal agencies were entitled to summary judgment in dispute involving use of water in reservoir because no endangered or threatened species were harmed in "taking" as contemplated in 16 USCS § 1538(a)(1) and defined in 16
USCS § 1532(19); habitat modification does not constitute harm unless it actually kills or injures wildlife. San Carlos
Apache Tribe v United States (2003, DC Ariz) 272 F Supp 2d 860, affd (2005, CA9 Ariz) 417 F3d 1091, subsequent
app (2005, CA9 Ariz) 144 Fed Appx 635, 35 ELR 20163.
U.S. Fish and Wildlife Service was granted summary judgment on claim of coalition of environmental advocacy
groups to "no adverse modification" finding for bull trout critical habitat as result of mining project because Fish and
Wildlife Service stated rational connection between facts found and decision made in permissible manner; evidence
showed that critical habitat would suffer diminished functionality in short-term but that it would not be so degraded that
it became nonfunctioning, and that while increased sedimentation would negatively impact habitat by diminishing functionality of several primary constituent elements, but would have diminutive impact on critical habitat at much larger
scales of other habitats and therefore would not result in adverse modification. 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.
3 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 § 1533
§ 1533. Determination of endangered species and threatened species
(a) Generally.
(1) The Secretary shall by regulation promulgated in accordance with subsection (b) determine whether any species
is an endangered species or a threatened species because of any of the following factors:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
(2) With respect to any species over which program responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970 [5 USCS § 903 note]-(A) in any case in which the Secretary of Commerce determines that such species should-(i) be listed as an endangered species or a threatened species, or
Page 35
16 USCS § 1533
(ii) be changed in status from a threatened species to an endangered species,
he shall so inform the Secretary of the Interior, who shall list such species in accordance with this section;
(B) in any case in which the Secretary of Commerce determines that such species should-(i) be removed from any list published pursuant to subsection (c) of this section, or
(ii) be changed in status from an endangered species to a threatened species,
he shall recommend such action to the Secretary of the Interior, and the Secretary of the Interior, if he concurs in
the recommendation, shall implement such action; and
(C) the Secretary of the Interior may not list or remove from any list any such species, and may not change the
status of any such species which are listed, without a prior favorable determination made pursuant to this section by the
Secretary of Commerce.
(3) The Secretary, by regulation promulgated in accordance with subsection (b) and to the maximum extent prudent
and determinable-(A) (i) shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat; and
(ii) may, from time-to-time thereafter as appropriate, revise such designation.
(B) (i) The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that
such plan provides a benefit to the species for which critical habitat is proposed for designation.
(ii) Nothing in this paragraph affects the requirement to consult under section 7(a)(2) [16 USCS § 1536(a)(2)]
with respect to an agency action (as that term is defined in that section).
(iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with section 9 [16
USCS § 1538], including the prohibition preventing extinction and taking of endangered species and threatened species.
(b) Basis for determinations.
(1) (A) The Secretary shall make determinations required by subsection (a)(1) solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into
account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign
nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation
practices, within any area under its jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give consideration to species which have been-(i) designated as requiring protection from unrestricted commerce by any foreign nation, or pursuant to any
international agreement; or
(ii) identified as in danger of extinction, or likely to become so within the foreseeable future, by any State
agency or by any agency of a foreign nation that is responsible for the conservation of fish or wildlife or plants.
(2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of
the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any
area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that
the failure to designate such area as critical habitat will result in the extinction of the species concerned.
(3) (A) To the maximum extent practicable, within 90 days after receiving the petition of an interested person under
section 553(e) of title 5, United States Code [5 USCS § 553(e)], to add a species to, or to remove a species from, either
of the lists published under subsection (c), the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is
found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register.
(B) Within 12 months after receiving a petition that is found under subparagraph (A) to present substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings:
(i) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in
the Federal Register.
(ii) The petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to implement such action in accordance with paragraph (5).
(iii) The petitioned action is warranted, but that--
Page 36
16 USCS § 1533
(I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action
in accordance with paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an
endangered species or a threatened species, and
(II) expeditious progress is being made to add qualified species to either of the lists published under subsection (c) and to remove from such lists species for which the protections of the Act are no longer necessary,
in which case the Secretary shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.
(C) (i) A petition with respect to which a finding is made under subparagraph (B)(iii) shall be treated as a petition
that is resubmitted to the Secretary under subparagraph (A) on the date of such finding and that presents substantial scientific or commercial information that the petitioned action may be warranted.
(ii) Any negative finding described in subparagraph (A) and any finding described in subparagraph (B)(i) or
(iii) shall be subject to judicial review.
(iii) The Secretary shall implement a system to monitor effectively the status of all species with respect to
which a finding is made under subparagraph (B)(iii) and shall make prompt use of the authority under paragraph 7 [(7)]
to prevent a significant risk to the well being of any such species.
(D) (i) To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, United States Code [5 USCS § 553(e)], to revise a critical habitat designation, the Secretary
shall make a finding as to whether the petition presents substantial scientific information indicating that the revision
may be warranted. The Secretary shall promptly publish such finding in the Federal Register.
(ii) Within 12 months after receiving a petition that is found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the Secretary shall determine how he intends to proceed with
the requested revision, and shall promptly publish notice of such intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this subsection, the provisions of section 553 of title 5, United
States Code [5 USCS § 553] (relating to rulemaking procedures), shall apply to any regulation promulgated to carry out
the purposes of this Act.
(5) With respect to any regulation proposed by the Secretary to implement a determination, designation, or revision
referred to in subsection (a)(1) or (3), the Secretary shall-(A) not less than 90 days before the effective date of the regulation-(i) publish a general notice and the complete text of the proposed regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation (including the complete text of the regulation) to the State
agency in each State in which the species is believed to occur, and to each county or equivalent jurisdiction in which the
species is believed to occur, and invite the comment of such agency, and each such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the Secretary of State, give notice of the proposed regulation to
each foreign nation in which the species is believed to occur or whose citizens harvest the species on the high seas, and
invite the comment of such nation thereon;
(C) give notice of the proposed regulation to such professional scientific organizations as he deems appropriate;
(D) publish a summary of the proposed regulation in a newspaper of general circulation in each area of the United
States in which the species is believed to occur; and
(E) promptly hold one public hearing on the proposed regulation if any person files a request for such a hearing
within 45 days after the date of publication of general notice.
(6) (A) Within the one-year period beginning on the date on which general notice is published in accordance with
paragraph (5)(A)(i) regarding a proposed regulation, the Secretary shall publish in the Federal Register-(i) if a determination as to whether a species is an endangered species or a threatened species, or a revision of
critical habitat, is involved, either-(I) a final regulation to implement such determination,
(II) a final regulation to implement such revision or a finding that such revision should not be made,
(III) notice that such one-year period is being extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii), together with the
finding on which such withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of critical habitat is involved, either-(I) a final regulation to implement such designation, or
(II) notice that such one-year period is being extended under such subparagraph.
(B) (i) If the Secretary finds with respect to a proposed regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination or re-
Page 37
16 USCS § 1533
vision concerned, the Secretary may extend the one-year period specified in subparagraph (A) for not more than six
months for purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph (A)(i) is not promulgated as a final regulation within
such one-year period (or longer period if extension under clause (i) applies) because the Secretary finds that there is not
sufficient evidence to justify the action proposed by the regulation, the Secretary shall immediately withdraw the regulation. The finding on which a withdrawal is based shall be subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the Secretary shall publish in the Federal Register either a final
regulation to implement the determination or revision concerned, a finding that the revision should not be made, or a
notice of withdrawal of the regulation under clause (ii), together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an endangered species or a threatened species shall be published concurrently with the final regulation implementing the determination that such species is endangered or threatened, unless the Secretary deems that-(i) it is essential to the conservation of such species that the regulation implementing such determination be
promptly published; or
(ii) critical habitat of such species is not then determinable, in which case the Secretary, with respect to the
proposed regulation to designate such habitat, may extend the one-year period specified in subparagraph (A) by not
more than one additional year, but not later than the close of such additional year the Secretary must publish a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent, such habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5, United States Code [5 USCS § 553],
shall apply to any regulation issued by the Secretary in regard to any emergency posing a significant risk to the
well-being of any species of fish or wildlife or plants, but only if-(A) at the time of publication of the regulation in the Federal Register the Secretary publishes therein detailed
reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident species of fish or wildlife, or plants, the Secretary gives actual
notice of such regulation to the State agency in each State in which such species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take effect immediately upon the publication of the regulation in the Federal Register. Any regulation promulgated under the authority of this paragraph shall cease to have force
and effect at the close of the 240-day period following the date of publication unless, during such 240-day period, the
rulemaking procedures which would apply to such regulation without regard to this paragraph are complied with. If at
any time after issuing an emergency regulation the Secretary determines, on the basis of the best appropriate data available to him, that substantial evidence does not exist to warrant such regulation, he shall withdraw it.
(8) The publication in the Federal Register of any proposed or final regulation which is necessary or appropriate to
carry out the purposes of this Act shall include a summary by the Secretary of the data on which such regulation is
based and shall show the relationship of such data to such regulation; and if such regulation designates or revises critical
habitat, such summary shall, to the maximum extent practicable, also include a brief description and evaluation of those
activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify such
habitat, or may be affected by such designation.
(c) Lists.
(1) The Secretary of the Interior shall publish in the Federal Register a list of all species determined by him or the
Secretary of Commerce to be endangered species and a list of all species determined by him or the Secretary of Commerce to be threatened species. Each list shall refer to the species contained therein by scientific and common name or
names, if any, specify with respect to each such species over what portion of its range it is endangered or threatened,
and specify any critical habitat within such range. The Secretary shall from time to time revise each list published under
the authority of this subsection to reflect recent determinations, designations, and revisions made in accordance with
subsections (a) and (b).
(2) The Secretary shall-(A) conduct, at least once every five years, a review of all species included in a list which is published pursuant to
paragraph (1) and which is in effect at the time of such review; and
(B) determine on the basis of such review whether any such species should-(i) be removed from such list;
(ii) be changed in status from an endangered species to a threatened species; or
Page 38
16 USCS § 1533
(iii) be changed in status from a threatened species to an endangered species.
Each determination under subparagraph (B) shall be made in accordance with the provisions of subsections (a) and
(b).
(d) Protective regulations. Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of
such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under
section 9(a)(1) [16 USCS § 1538(a)(1)], in the case of fish or wildlife, or section 9(a)(2) [16 USCS § 1538(a)(2)], in the
case of plants, with respect to endangered species; except that with respect to the taking of resident species of fish or
wildlife, such regulations shall apply in any State which has entered into a cooperative agreement pursuant to section
6(c) of this Act [16 USCS § 1535(c)] only to the extent that such regulations have also been adopted by such State.
(e) Similarity of appearance cases. The Secretary may, by regulation of commerce or taking, and to the extent he
deems advisable, treat any species as an endangered species or threatened species even though it is not listed pursuant to
section 4 of this Act [this section] if he finds that-(A) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between
the listed and unlisted species;
(B) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and
(C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this
Act.
(f) Recovery plans.
(1) The Secretary shall develop and implement plans (hereinafter in this subsection referred to as "recovery plans")
for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he
finds that such a plan will not promote the conservation of the species. The Secretary, in developing and implementing
recovery plans, shall, to the maximum extent practicable-(A) give priority to those endangered species or threatened species, without regard to taxonomic classification,
that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity;
(B) incorporate in each plan-(i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the
conservation and survival of the species;
(ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the
provisions of this section, that the species be removed from the list; and
(iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal
and to achieve intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery plans, may procure the services of appropriate public
and private agencies and institutions, and other qualified persons. Recovery teams appointed pursuant to this subsection
shall not be subject to the Federal Advisory Committee Act [5 USCS Appx.].
(3) The Secretary shall report every two years to the Committee on Environment and Public Works of the Senate and
the Committee on Merchant Marine and Fisheries of the House of Representatives on the status of efforts to develop
and implement recovery plans for all species listed pursuant to this section and on the status of all species for which
such plans have been developed.
(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan. The Secretary shall consider all information presented during
the public comment period prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a new or revised recovery plan, consider all information
presented during the public comment period under paragraph (4).
(g) Monitoring.
(1) The Secretary shall implement a system in cooperation with the States to monitor effectively for not less than five
years the status of all species which have recovered to the point at which the measures provided pursuant to this Act are
no longer necessary and which, in accordance with the provisions of this section, have been removed from either of the
lists published under subsection (c).
Page 39
16 USCS § 1533
(2) The Secretary shall make prompt use of the authority under paragraph 7 [(7)] of subsection (b) of this section to
prevent a significant risk to the well being of any such recovered species.
(h) Agency guidelines; publication in Federal Register; scope; proposals and amendments: notice and opportunity for
comments. The Secretary shall establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively. Such guidelines shall include, but are not limited to-(1) procedures for recording the receipt and the disposition of petitions submitted under subsection (b)(3) of this section;
(2) criteria for making the findings required under such subsection with respect to petitions;
(3) a ranking system to assist in the identification of species that should receive priority review under subsection
(a)(1) of this section; and
(4) a system for developing and implementing, on a priority basis, recovery plans under subsection (f) of this section.
The Secretary shall provide to the public notice of, and opportunity to submit written comments on, any guideline (including any amendment thereto) proposed to be established under this subsection.
(i) Submission to State agency of justification for regulations inconsistent with State agency's comments or petition. If,
in the case of any regulation proposed by the Secretary under the authority of this section, a State agency to which notice thereof was given in accordance with subsection (b)(5)(A)(ii) files comments disagreeing with all or part of the
proposed regulation, and the Secretary issues a final regulation which is in conflict with such comments, or if the Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency under subsection (b)(3), the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 4, 87 Stat. 886; July 12, 1976, P.L. 94-359, § 1, 90 Stat. 911; Nov. 10, 1978, P.L.
95-632, §§ 11, 13, 92 Stat. 3764, 3766; Dec. 28, 1979, P.L. 96-159, § 3, 93 Stat. 1225; Oct. 13, 1982, P.L. 97-304, §
2(a), 96 Stat. 1411; Oct. 7, 1988, P.L. 100-478, Title I, §§ 1002-1004, 102 Stat. 2306, 2307; Nov. 24, 2003, P.L.
108-136, Div A, Title III, Subtitle B, § 318, 117 Stat. 1433.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"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.
With respect to the Committee on Merchant Marine and Fisheries of the House of Representatives, referred to in this
section, § 1(b)(3) of Act June 3, 1995, P.L. 104-14, which appears as a note preceding 2 USCS § 21, provides that any
reference to such Committee in any provision of law enacted before January 4, 1995, shall be treated as referring to (A)
the Committee on Agriculture of the House of Representatives, in the case of a provision of law relating to inspection of
seafood or seafood products, (B) the Committee on National Security of the House of Representatives, in the case of a
provision of law relating to interoceanic canals, the Merchant Marine Academy and State Maritime Academies, or national security aspects of merchant marine, (C) the Committee on Resources of the House of Representatives, in the
case of a provision of law relating to fisheries, wildlife, international fishing agreements, marine affairs (including
coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography,
(D) the Committee on Science of the House of Representatives, in the case of a provision of law relating to marine research, and (E) the Committee on Transportation and Infrastructure of the House of Representatives, in the case of a
provision of law relating to a matter other than a matter described in any of subparagraphs (A) through (D).
Explanatory notes:
In subsecs. (b)(3)(C)(iii) and (g)(2), the bracketed "(7)" has been inserted to indicate the probable intent of Congress
to include paranthesis surrounding the paragraph number.
Page 40
16 USCS § 1533
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. (f)(2)(B)(ii), substituted "subsection (b)(1)(A)" for "subsection (b)(A), (B), and (C)".
1978. Act Nov. 10, 1978, in subsec. (a)(1), added "At the time any such regulation is proposed, the Secretary shall also
by regulation, to the maximum extent prudent, specify any habitat of such species which is then considered to be critical
habitat. The requirement of the preceding sentence shall not apply with respect to any species which was listed prior to
enactment of the Endangered Species Act Amendments of 1978."; in subsec. (b), added para. (4); in subsec. (c), in para.
(1), deleted "and shall" following "or names, if any," and inserted ", and specify any critical habitat within such range",
in para. (2), substituted "within 90 days of the receipt of" for "upon", inserted "and publish in the Federal Register", "the
statutes of" and "Such review and finding shall be made and published prior to the initiation of any procedures under
subsection (b)(1).", and added para. (4); in subsec. (f) in para. (2), in subpara. (A), substituted "Except as provided in
subparagraph (B), in" for "In", redesignated subpara. (B) as subpara. (C), and added a new subpara. (B), in subpara. (C),
as so redesignated, inserted "or (B)", and added paras. (4) and (5); and added subsec. (g).
1979. Act Dec. 28, 1979, in subsec. (b)(1), inserted "after conducting a review of the status of the species"; and in subsec. (f)(2)(B), substituted cl. (i) for one which read:
"(i) shall publish general notice of the proposed regulation (including the complete text of the regulation), not less
than 60 days before the effective date of the regulation-"(I) in the Federal Register, and
"(II) if the proposed regulation specifies any critical habitat, in a newspaper of general circulation within or
adjacent to such habitat;".
Such Act further, in subsec. (f)(2), in subpara. (B)(iv)(II), inserted "within 15 days after the date on which the public
meeting is conducted,", in subpara. (C), inserted ", subsection (b)(4) of this section,", in cl. (ii), substituted "fish or
wildlife or plants" for "fish or wildlife", "fish, wildlife, and plants," for "fish and wildlife,", "240-day" for "120-day"
wherever appearing, and inserted "If at any time after issuing an emergency regulation the Secretary determines, on the
basis of the best scientific and commercial data available to him, that substantial evidence does not exist to warrant such
regulation, he shall withdraw it."; and added subsec. (h).
1982. Act Oct. 13, 1982 (effective as provided by § 2(b) of such Act, which appears as a note to this section), in subsec.
(a), in para. (1), in the introductory matter, inserted "promulgated in accordance with subsection (b)", redesignated subparas. (1) through (5) as subparas. (A) through (E), respectively, in subpara. (B), as so redesignated, substituted "recreational" for "sporting", deleted "At the time any such regulation is proposed, the Secretary shall also by regulation, to the
maximum extent prudent, specify any habitat of such species which is then considered to be critical habitat. The requirement of the preceding sentence shall not apply with respect to any species which was listed prior to enactment of
the Endangered Species Act Amendments of 1978." following subpara. (E), as so redesignated, and added para. (3); and
substituted subsec. (b) for one which read:
"(b)
(1) The Secretary shall make determinations required by subsection (a) of this section on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after consultation,
as appropriate, with the affected States, interested persons and organizations, other interested Federal agencies, and, in
cooperation with the Secretary of State, with the country or countries in which the species concerned is normally found
Page 41
16 USCS § 1533
or whose citizens harvest such species on the high seas; except that in any case in which such determinations involve
resident species of fish or wildlife, the Secretary of the Interior may not add such species to, or remove such species
from, any list published pursuant to subsection (c) of this section, unless the Secretary has first-"(A) published notice in the Federal Register and notified the Governor of each State within which such species is then known to occur that such action is contemplated;
"(B) allowed each such State 90 days after notification to submit its comments and recommendations, except to
the extent that such period may be shortened by agreement between the Secretary and the Governor or Governors concerned; and
"(C) published in the Federal Register a summary of all comments and recommendations received by him
which relate to such proposed action.
"(2) In determining whether or not any species is an endangered species or a threatened species, the Secretary
shall take into consideration those efforts, if any, being made by any nation or any political subdivision of any nation to
protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices,
within any area under the jurisdiction of any such nation or political subdivision, or on the high seas.
"(3) Species which have been designated as requiring protection from unrestricted commerce by any foreign
country, or pursuant to any international agreement, shall receive full consideration by the Secretary to determine
whether each is an endangered species or a threatened species.
"(4) In determining the critical habitat of any endangered or threatened species, the Secretary shall consider the
economic impact, and any other relevant impacts, of specifying any particular area as critical habitat, and he may exclude any such area from the critical habitat if he determines that the benefits of such exclusion outweigh the benefits of
specifying the area as part of the critical habitat, unless he determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical habitat will result in the extinction of the species.".
Such Act further, in subsec. (c), in para. (1), substituted "The Secretary shall from time to time revise each list published under the authority of this subsection to reflect recent determinations, designations, and revisions made in accordance with subsections (a) and (b)." for ", and from time to time he may by regulation revise,", and deleted paras. (2)
and (3) which read:
"(2) The Secretary shall, within 90 days of the receipt of the petition of an interested person under subsection
553(e) of title 5, United States Code, conduct and publish in the Federal Register a review of the status of any listed or
unlisted species proposed to be removed from or added to either of the lists published pursuant to paragraph (1) of this
subsection, but only if he makes and publishes a finding that such person has presented substantial evidence which in
his judgment warrants such a review. Such review and finding shall be made and published prior to the initiation of any
procedures under subsection (b)(1).
"(3) Any list in effect on the day before the date of the enactment of this Act of species of fish or wildlife determined by the Secretary of the Interior, pursuant to the Endangered Species Conservation Act of 1969, to be threatened
with extinction shall be republished to conform to the classification for endangered species or threatened species, as the
case may be, provided for in this Act, but until such republication, any such species so listed shall be deemed an endangered species within the meaning of this Act. The republication of any species pursuant to this paragraph shall not require public hearing or comment under section 553 of title 5, United States Code.".
Such Act further, in subsec. (c), redesignated para. (4) as para. (2); in subsec. (d), substituted "section 6(c)" for "section 6(a)"; and deleted subsec. (f) which read:
"(f)
(1) Except as provided in paragraphs (2) and (3) of this subsection and subsection (b) of this section, the provisions of section 553 of title 5, United States Code (relating to rulemaking procedures), shall apply to any regulation
promulgated to carry out the purposes of this Act.
"(2)
(A) Except as provided in subparagraph (B), in the case of any regulation proposed by the Secretary to carry
out the purposes of this Act-"(i) the Secretary shall publish general notice of the proposed regulation (including the complete text of the
regulation) in the Federal Register not less than 60 days before the effective date of the regulation; and
"(ii) if any person who feels that he may be adversely affected by the proposed regulation files (within 45
days after the date of publication of general notice) objections thereto and requests a public hearing thereon, the Secretary may grant such request, but shall, if he denies such request, publish his reasons therefor in the Federal Register.
"(B) In the case of any regulation proposed by the Secretary to carry out the purposes of this section with respect to the determination and listing of endangered or threatened species and their critical habitats in any State (other
than regulations to implement the Convention), the Secretary--
Page 42
16 USCS § 1533
"(i) not less than 60 days before the effective date of the regulation, shall publish-"(I) a general notice and the complete text of the proposed regulation in the Federal Register, and
"(II) if the proposed regulation specifies any critical habitat, general notice of the regulation (including a
summary of the text, and a map of the proposed critical habitat) in a newspaper of general circulation within or adjacent
to such habitat;
"(ii) shall offer for publication in appropriate scientific journals the substance of the Federal Register notice
referred to in clause (i)(I);
"(iii) shall give actual notice of the proposed regulation (including the complete text of the regulation), and
any environmental assessment or environmental impact statement prepared on the proposed regulation, not less than 60
days before the effective date of the regulation to all general local governments located within or adjacent to the proposed critical habitat, if any; and
"(iv) shall-"(I) if the proposed regulation does not specify any critical habitat, promptly hold a public meeting on
the proposed regulation within or adjacent to the area in which the endangered or threatened species is located, if request therefor is filed with the Secretary by any person within 45 days after the date of publication of general notice
under clause (i)(I), and
"(II) if the proposed regulation specifies any critical habitat, promptly hold a public meeting on the proposed regulation within the area in which such habitat is located in each State, and, if requested within 15 days after the
date on which the public meeting is conducted, hold a public hearing in each such State.
"If a public meeting or hearing is held on any regulation, the regulation may not take effect before the 60th day
after the date on which the meeting or hearing is concluded, and if more than one public meeting or hearing is held, before the 60th day after the date on which the last such meeting or hearing is concluded. Any accidental failure to provide
actual notice under clause (ii) to all general local governments required to be given notice shall not invalidate the proposed regulation.
"(C) Neither subparagraph (A) or (B) of this paragraph, subsection (b)(4) of this section, nor section 553 of title
5, United States Code, shall apply in the case of any of the following regulations and any such regulations shall, at the
discretion of the Secretary, take effect immediately upon publication of the regulation in the Federal Register:
"(i) Any regulation appropriate to carry out the purposes of this Act which was originally promulgated to
carry out the Endangered Species Conservation Act of 1969.
"(ii) Any regulation (including any regulation implementing section 6(g)(2)(B)(ii) of this Act) issued by the
Secretary in regard to any emergency posing a significant risk to the wellbeing of any species of fish or wildlife or
plants, but only if (I) at the time of publication of the regulation in the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary, and (II) in the case such regulation applies to resident species of fish,
wildlife, and plants, the requirements of subsection (b)(1)(A) of this section have been complied with. Any regulation
promulgated under the authority of this clause (ii) shall cease to have force and effect at the close of the 240-day period
following the date of publication unless, during such 240-day period, the rulemaking procedures, which would apply to
such regulation without regard to this subparagraph are complied with. If at any time after issuing an emergency regulation the Secretary determines, on the basis of the best scientific and commercial data available to him, that substantial
evidence does not exist to warrant such regulation, he shall withdraw it.
"(3) The publication in the Federal Register of any proposed or final regulation which is necessary or appropriate
to carry out the purposes of this Act shall include a summary by the Secretary of the data on which such regulation is
based and shall show the relationship of such data to such regulations.
"(4) Any proposed or final regulation which specifies any critical habitat of any endangered species or threatened
species shall be based on the best scientific data available, and the publication in the Federal Register of any such regulation shall, to the maximum extent practicable, be accompanied by a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify such habitat, or
may be impacted by such designation.
"(5) A final regulation adding a species to any list published pursuant to subsection (c) shall be published in the
Federal Register not later than two years after the date of publication of notice of the regulation proposing such listing
under paragraph (B)(i)(I). If a final regulation is not adopted within such two-year period, the Secretary shall withdraw
the proposed regulation and shall publish notice of such withdrawal in the Federal Register not later than 30 days after
the end of such period. The Secretary shall not propose a regulation adding to such a list any species for which a proposed regulation has been withdrawn under this paragraph unless he determines that sufficient new information is
available to warrant the proposal of a regulation. No proposed regulation for the listing of any species published before
Page 43
16 USCS § 1533
the date of the enactment of the Endangered Species Act Amendments of 1978, shall be withdrawn under this paragraph
before the end of the one-year period beginning on such date of enactment.".
Such Act further redesignated subsecs. (g) and (h) as subsecs. (f) and (g), respectively; in subsec. (f), as so redesignated, substituted "recovery plans (1) shall, to the maximum extent practicable, give priority to those endangered species or threatened species most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other developmental projects or other forms of economic activity, and (2)" for "recovery
plans,"; in subsec. (g), as so redesignated, in para. (1), substituted "subsection (b)(3)" for "subsection (c)(2)", in para.
(3), substituted "under subsection (a)(1) of this section" for "for listing", and, in para. (4), substituted "subsection (f)"
for "subsection (g)"; and added subsec. (h).
1988. Act Oct. 7, 1988, in subsec. (b)(3)(C), added cl. (iii); in subsec. (e), in the introductory matter, substituted "regulation of commerce or taking," for "regulation,"; and substituted subsec. (f) for one which read: "The Secretary shall
develop and implement plans (hereinafter in this subsection referred to as 'recovery plans') for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will
not promote the conservation of the species. The Secretary, in developing and implementing recovery plans (1) shall, to
the maximum extent practicable, give priority to those endangered species or threatened species most likely to benefit
from such plans, particularly those species that are, or may be, in conflict with construction or other developmental projects or other forms of economic activity, and (2) may procure the services of appropriate public and private agencies
and institutions, and other qualified persons. Recovery teams appointed pursuant to this subsection shall not be subject
to the Federal Advisory Committee Act.".
Such Act further redesignated former subsecs. (g) and (h) as subsecs. (h) and (i), respectively; and added a new subsec. (g).
2003. Act Nov. 24, 2003, in subsec. (a)(3), redesignated subparas. (A) and (B) as cls. (i) and (ii), respectively, inserted
"(A)" after "(3)", and added new subpara. (B); and, in subsec. (b)(2), inserted "the impact on national security,".
Other provisions:
Transitional provisions for Act Oct. 13, 1982. Act Oct. 13, 1982, P.L. 97-304, § 2(b), 96 Stat. 1416, provides:
"(1) Any petition filed under section 4(c)(2) of the Endangered Species Act of 1973 [subsec. (c)(2) of this section]
(as in effect on the day before the date of the enactment of this Act [enacted Oct. 13, 1982]) and any regulation proposed under section 4(f) of such Act of 1973 [subsec. (f) of this section] (as in effect on such day) that is pending on
such date of enactment [enacted Oct. 13, 1982] shall be treated as having been filed or proposed on such date of enactment [enacted Oct. 13, 1982] under section 4(b) of such Act of 1973 [subsec. (b) of this section] (as amended by subsection (a) [§ 2(a) of Act Oct. 13, 1982, P.L. 97-304, 96 Stat. 1416, amending subsec. (b) of this section]); and the procedural requirements specified in such section 4(b) [subsec. (b) of this section] (as so amended) regarding such petition
or proposed regulation shall be deemed to be complied with to the extent that like requirements under such section 4
[this section] (as in effect before the date of the enactment of this Act [enacted Oct. 13, 1982]) were complied with before such date of enactment [enacted Oct. 13, 1982].
"(2) Any regulation proposed after, or pending on, the date of the enactment of this Act [enacted Oct. 13, 1982] to
designate critical habitat for a species that was determined before such date of enactment to be endangered or threatened
shall be subject to the procedures set forth in section 4 of such Act of 1973 [this section] (as amended by subsection (a)
[see the 1982 Amendments note to this section]) for regulations proposing revisions to critical habitat instead of those
for regulations proposing the designation of critical habitat.
"(3) Any list of endangered species or threatened species (as in effect under section 4(c) of such Act of 1973 [subsec.
(c) of this section] on the day before the date of the enactment of this Act [enacted Oct. 13, 1982]) shall remain in effect
unless and until determinations regarding species and designations and revisions of critical habitats that require changes
to such list are made in accordance with subsection (b)(5) of such Act of 1973 [subsec. (b)(5) of this section] (as added
by subsection (a) [see the 1982 Amendments note to this section]).
"(4) Section 4(a)(3)(A) of such Act of 1973 [subsec. (a)(3)(A) of this section] (as added by subsection (a) [see the
1982 Amendments note to this section]) shall not apply with respect to any species which was listed as an endangered
species or a threatened species before November 10, 1978.".
Page 44
16 USCS § 1533
NOTES:
Code of Federal Regulations:
United States Fish and Wildlife Service, Department of the Interior--Endangered and threatened wildlife and plants,
50 CFR 17.1 et seq.
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce--Designated critical habitat, 50 CFR 226.101 et seq.
Related Statutes & Rules:
This section is referred to in 10 USCS § 7524; 16 USCS §§ 460www, 668dd, 670h, 715i, 715s, 1374, 1383b, 1387,
1402, 1532, 1534--1540, 4202, 4261, 6301, 6512, 6572, 6573.
Research Guide:
Federal Procedure:
6 Administrative Law (Matthew Bender), ch 50, Standing § 50.04.
24A Fed Proc L Ed, Natural and Marine Resources §§ 56:2074, 2105, 2132, 2158, 2159, 2337.
Am Jur:
35A Am Jur 2d, Fish, Game, and Wildlife Conservation §§ 65, 66.
Am Jur Proof of Facts:
35 Am Jur Proof of Facts 3d, Proof of Standing in Environmental Citizen Suits, p. 493.
89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125.
Forms:
10B Fed Procedural Forms L Ed, Highways and Bridges (2006) § 38:17.
13 Fed Procedural Forms L Ed, Natural and Mineral Resources (2005) § 50:214.
12 Am Jur Pl & Pr Forms (2008), Fish and Game, § 30.
13A Am Jur Pl & Pr Forms (2009), Highways, Streets, and Bridges, § 219.
Annotations:
Designation of "Critical Habitat" Under Endangered Species Act. 176 ALR Fed 405.
Texts:
2A Environmental Law Practice Guide (Matthew Bender), ch 15A, Indian Country Environmental Law § 15A.02.
4 Environmental Law Practice Guide (Matthew Bender), ch 18B, Environmental Trading Programs § 18B.02.
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.
Page 45
16 USCS § 1533
4 Treatise on Environmental Law (Matthew Bender), ch 9, The National Environmental Policy Act of 1969 and Related Provisions § 9.02.
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation §§ 12.03, 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.
Mank. Can Congress Regulate Intrastate Endangered Species under the Commerce Clause? The Split in the Circuits
Over Whether the Regulated Activity Is Private Commercial Development or the Taking of Protected Species. 69
Brooklyn L Rev 923, Spring 2004.
Ruhl. Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future. 88 BUL Rev 1,
February 2008.
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.
Noles. Is "Recovered" Really Recovered?: "Recovered" Species under the Endangered Species Act. 39 Cumb L Rev
387, 2008/2009.
Burke. Klamath Farmers and Cappuccino Cowboys N1: the Rhetoric of the Endangered Species Act and Why It
(Still) Matters. 14 Duke Envtl L & Pol'y F 441, Spring 2004.
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Sinden. The Economics of Endangered Species: Why Less is More in the Economic Analysis of Critical Habitat
Designations. 28 Harv Envtl L Rev 129, 2004.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
Kunich. Preserving the Womb of the Unknown Species with Hotspots Legislation. 52 Hastings LJ 1149, August
2001.
Gray. The Endangered Species Act: Reform or Refutation? 13 Hastings W-NW J Env L & Pol'y 1, Winter 2007.
Cosens. Nez Perce Water Rights Settlement Article: Truth or Consequences: Settling Water Disputes in the Face of
Uncertainty. 42 Idaho L Rev 717, 2006.
Sinden. In Defense of Absolutes: Combating the Politics of Power in Environmental Law. 90 Iowa L Rev 1405,
April 2005.
Shepherd. The Future of Livestock Grazing and the Endangered Species Act. 21 J Envtl L & Litig 383, 2006.
Ruhl. The Pragmatic Ecologist: Environmental Protection as a Jurisdynamic Experience: Is the Endangered Species
Act Eco-pragmatic?. 87 Minn L Rev 885, April 2003.
Ruhl. Section 4 of the ESA-the cornerstone of species protection law. 8 Nat Resources & Env't 26, Summer 1993.
Benson. So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and
the Endangered Species Act. 44 Nat Resources J 29, Winter 2004.
Broderick. Towards Common Sense in ESA Enforcement: Federal Courts and the Limits on Administrative Authority and Discretion under the Endangered Species Act. 44 Nat Resources J 77, Winter 2004.
Goble. The Endangered Species Act: What We Talk About When We Talk About Recovery. 49 Nat Resources J 1,
Winter 2009.
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.
Arnold. Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use
development. 10 Stan Envtl L J 1, 1991.
Patlis. The Endangered Species Act: Thirty Years of Politics, Money, and Science: Riders on the Storm, or Navigating the Crosswinds of Appropriations and Administration of the Endangered Species Act: a Play in Five Acts. 16
Tul Envtl LJ 387, Summer 2003.
Brennan; Roth; Feldman; Greene. The Endangered Species Act: Thirty Years of Politics, Money, and Science:
Square Pegs and Round Holes: Application of the "Best Scientific Data Available" Standard in the Endangered Species
Act. 16 Tul Envtl LJ 387, Summer 2003.
Page 46
16 USCS § 1533
Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.
Robbins. Strength in Numbers: Setting Quantitative Criteria for Listing Species under the Endangered Species Act.
27 UCLA J Envtl L & Pol'y 1, 2009.
Colburn. New Directions in Environmental Law: Qualitative, Quantitative, and Integrative Conservation. 32 Wash
U JL & Pol'y 237, 2010.
Interpretive Notes and Decisions:
1. Generally 2. Constitutionality 3. Prerequisites to determination 4. Particular determinations 5.--Listing as threatened
or endangered species 6.----Birds 7.----Fish 8.----Mammals 9.----Reptiles and amphibians 10.----Other particular species
11.--Designation of critical habitat 12.----Birds 13.----Fish 14.----Mammals 15.----Plants 16.----Other particular species
17.--Permission of hunting 18. Practice and procedure 19.--Standing 20.--Standard of review 21. Miscellaneous
1. Generally
16 USCS § 1533(d), when read in conjunction with definition of "conservation" in § 1532, limits discretion of Secretary to allow public sport hunting of threatened species. Sierra Club v Clark (1985, CA8 Minn) 755 F2d 608, 15 ELR
20391 (criticized in Humane Soc'y of the United States v Kempthorne (2006, DC Dist Col) 481 F Supp 2d 53).
Endangered Species Act (ESA) mandates Secretary to issue such regulations as deemed necessary and advisable to
provide for conservation of threatened species, and conservation, under ESA (16 USCS § 1532(3)), is defined as all
methods and procedures which are necessary to bring endangered species or threatened species to point at which
measures provided pursuant to this chapter are no longer necessary; furthermore, under 16 USCS § 1533(d), ESA provides Secretary with discretionary authority to prohibit by regulation taking of "any" threatened species of fish and
wildlife, and this regulatory authority supplements statutory prohibition against taking of endangered species, enforcement of which is not conditioned upon any showing that prohibition will itself operate to restore species to level considered unendangered; accordingly, regulations aimed at preventing taking of protected species cannot be invalid on
ground that record fails to demonstrate that regulatory effort will enhance species' chance of survival, and record need
only show that such regulations do in fact prevent prohibited takings of protected species, which burden has been satisfied in case at hand. Louisiana ex rel. Guste v Verity (1988, CA5 La) 853 F2d 322, 18 ELR 21351.
Endangered Species Act does not proscribe listing species as endangered once statutory 12- or 18-month time limits
have passed; legislative history indicates that Congress established time limits to speed up listing process so more species could be listed, and limits are therefore designed as impetus to act rather than as bar on subsequent action. Idaho
Farm Bureau Fed'n v Babbitt (1995, CA9 Idaho) 58 F3d 1392, 95 CDOS 5038, 95 Daily Journal DAR 8746, 41 Envt
Rep Cas 1207, 32 FR Serv 3d 774, 25 ELR 21265.
Given Congress's substantial deference to Fish and Wildlife Service's prioritization of initial listing actions based
on relative degree of threat facing species for which listing process has already been invoked, and wisdom of allocating
resources to these priorities, listing priority guidance providing guidelines to prioritize use of remaining funds is eminently reasonable. Biodiversity Legal Found. v Babbitt (1998, CA10 Colo) 146 F3d 1249, 46 Envt Rep Cas 2108, 1998
Colo J C A R 3606, 28 ELR 21354.
Failure of Secretary of Interior to perform nondiscretionary duty to designate critical habitat for threatened species
under 16 USCS § 1533(b), part of Endangered Species Act, 16 USCS §§ 1531 et seq., is not continuing violation that
permits plaintiff to file suit more than six years after deadline to perform that duty has passed. Ctr. for Biological Diversity v Hamilton (2006, CA11 Ga) 453 F3d 1331, 62 Envt Rep Cas 1641, 19 FLW Fed C 701 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 66 Envt Rep Cas 1620) and (criticized in Sierra Club v
Johnson (2009, ND Cal) 69 Envt Rep Cas 1919, 39 ELR 20051).
"In accordance with" clause of 16 USCS § 1533(c)(2) does not incorporate deadlines (and corresponding duties)
associated with petition process under 16 USCS § 1533(b)(3). Coos County Bd. of County Comm'rs v Kempthorne
(2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.
Most of provisions of 16 USCS § 1533(a) and (b) govern decisionmaking process in general, not petition process in
particular; 16 USCS § 1533(c)(2) is naturally read as mandating that each five-year review determination shall be made
Page 47
16 USCS § 1533
in accordance with those generally applicable provisions such as 16 USCS § 1533(a)(1) and (b)(1)(A). Coos County Bd.
of County Comm'rs v Kempthorne (2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.
Deadlines which 16 USCS § 1533(b)(3) applies to petition process are not incorporated, sub silentio, into five-year
review provision under 16 USCS § 1533(c)(2); therefore, there can therefore be no violation of 16 USCS §
1533(b)(3)(B)(ii)'s "promptly publish" requirement based upon determination made in five-year review. Coos County
Bd. of County Comm'rs v Kempthorne (2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.
Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) (Hatchery Listing Policy) is
consistent with both plain language of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., and with statutory goal
of preserving natural populations; ESA requires National Marine Fisheries Service to determine whether any species is
endangered species or threatened species under 16 USCS § 1533(a)(1), and species, in turn, includes any subspecies of
fish or wildlife or plants, and any distinct population segment under 16 USCS § 1532(16); consistent with plain language of ESA, Hatchery Listing Policy conducts status review of entire "species"--no more, and no less. Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.
To be protected under 15 USCS § 1536(a)(2), species must be listed under § 1533. Wilson v Block (1983, App
DC) 228 US App DC 166, 708 F2d 735, 19 Envt Rep Cas 1201, 13 ELR 20861, cert den (1983) 464 US 956, 78 L Ed 2d
330, 104 S Ct 371 and cert den (1984) 464 US 1056, 79 L Ed 2d 197, 104 S Ct 739.
For emergency listings, 16 USCS § 1533 merely prohibits Secretary from disregarding available scientific evidence
that is in some way better than evidence he ultimately relies upon; thus, if after publishing emergency regulation on
basis of best data then available, Secretary then finds that substantial evidence does not exist to warrant such regulation,
he must withdraw it. Las Vegas v Lujan (1989, App DC) 282 US App DC 57, 891 F2d 927, 20 ELR 20313.
16 USCS §§ 1533(d) and 1536 require Secretary of Interior to act to ensure conservation of protected species. Defenders of Wildlife v Andrus (1977, DC Dist Col) 428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.
Endangered Species Act, 16 USCS §§ 1531 et seq., requires Secretary of Department of Interior under 16 USCS §
1533(f) to develop and implement recovery plans for conservation and survival of listed species unless Secretary finds
that such plan will not promote conservation of species. Defenders of Wildlife v Tuggle (2009, DC Ariz) 607 F Supp 2d
1095.
2. Constitutionality
Secretary of Interior violated his non-discretionary duty by failing to designate critical habitat for endangered minnow by statutory deadline where failure preceded any appropriations cutback or moratorium spending and where moratorium ended well over 2 years prior to suit by environmental organization for injunctive relief. Forest Guardians v
Babbitt (1999, CA10) 174 F3d 1178, 1999 Colo J C A R 2166 (criticized in Ctr. for Biological Diversity v Pirie (2002,
DC Dist Col) 201 F Supp 2d 113, 54 Envt Rep Cas 2082).
16 USCS § 1533 does not unconstitutionally delegate to Secretary of Interior power to declare legislative policy, as
to what are endangered and threatened species, that affects fundamental constitutional rights, where defendant was
charged with, inter alia, violations concerning endangered species, but Secretary's discretion is guided and limited by
statutory standards as well as by procedural requirements ensuring public input and public scrutiny, and delegation
transcends intelligible principle test, even assuming heightened scrutiny. United States v Hill (1995, DC Colo) 896 F
Supp 1057.
3. Prerequisites to determination
16 USCS § 1533(b) and rule-making provisions of Administrative Procedure Act (5 USCS § 553) collectively define procedures which Secretary of Interior must follow in maintaining lists of threatened and endangered species. Hill
v Tennessee Valley Authority (1977, CA6 Tenn) 549 F2d 1064, 9 Envt Rep Cas 1737, 7 ELR 20172, affd (1978) 437 US
153, 98 S Ct 2279, 57 L Ed 2d 117, 11 Envt Rep Cas 1705, 8 ELR 20513 (superseded by statute on other grounds as
stated in Board of Governors of Federal Reserve System v Dimension Financial Corp. (1986) 474 US 361, 106 S Ct
681, 88 L Ed 2d 691, CCH Fed Secur L Rep P 92437) and (superseded by statute on other grounds as stated in Pyramid
Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572) and (superseded by statute on other grounds as stated in Pacific Rivers Council v Thomas (1994, CA9 Or) 30 F3d 1050, 94 CDOS
5250, 94 Daily Journal DAR 9626, 39 Envt Rep Cas 1078, 24 ELR 21367) and (superseded by statute on other grounds
as stated in Rio Grande Silvery Minnow v Keys (2002, DC NM) 356 F Supp 2d 1222) and (superseded by statute on
Page 48
16 USCS § 1533
other grounds as stated in Sierra Club v Strock (2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep Cas 2082, 37 ELR
20188, 20 FLW Fed D 995) and (superseded by statute on other grounds as stated in Hoosier Envtl. Council v United
States DOT (2007, SD Ind) 2007 US Dist LEXIS 90840) and (superseded by statute on other grounds as stated in Grand
Canyon Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).
Secretary need not file environmental impact statement when listing species as endangered or threatened. Pacific
Legal Foundation v Andrus (1981, CA6 Tenn) 657 F2d 829, 16 Envt Rep Cas 1397, 33 FR Serv 2d 73, 11 ELR 20871.
Secretary of Interior must comply with documentation requirements of National Environmental Policy Act when
designating critical habitat under Endangered Species Act, and failure to comply constitutes "final agency action" under
APA. Catron County Bd. of Comm'rs v United States Fish & Wildlife Serv. (1996, CA10 NM) 75 F3d 1429, 41 Envt Rep
Cas 2057 (criticized in Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2003, ED Cal) 268 F
Supp 2d 1197).
Notice provided by Fish and Wildlife Service regarding proposed critical habitat for Alameda whipsnake was inadequate under Administrative Procedures Act, 5 USCS §§ 551 et seq., and Endangered Species Act, 16 USCS §§ 1531
et seq., even though Service complied with notice requirements for proposal for critical habitat designation for snake to
extent of timing and method of giving notice because notice provided by Service in regard to proposed rule deprived
public of meaningful opportunity to comment and to offer informed criticism and comments. Home Builders Ass'n of N.
Cal. V United States Fish & Wildlife Serv. (2003, ED Cal) 268 F Supp 2d 1197 (criticized in Home Builders Ass'n v
United States Fish & Wildlife Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226) and (criticized in Home
Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40
ELR 20210).
It was not contrary to clear congressional intent for National Marine Fisheries Service and Fish and Wildlife Service (Services) to consider significance of distinct population segment (DPS) when determining whether that population
was entitled to Endangered Species Act listing; term "distinct population segment" was ambiguous and, as Services
concluded when promulgating DPS policy, DPS must be both discrete and significant because interests of conserving
genetic diversity would not be well served by efforts directed at either well-defined but insignificant units or entities
believed to be significant but around which boundaries cannot be recognized; therefore, DPS policy was not contrary to
congressional intent regarding ESA and it was reasonable interpretation of ambiguous term. Ctr. for Biological Diversity v Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340, Vacated on other grounds, remanded (2007,
CA9 Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op withdrawn on other grounds (2007, CA9
Wash) 511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676, 38 ELR 20001.
Although plaintiffs argued that forest service violated § 7 of Endangered Species Act (ESA) by failing to properly
consult with Fish and Wildlife Service (FWS) to insure that project would not adversely affect Canada lynx (listed species under ESA), that FWS failed to list critical habitat for lynx even though such listing was required concurrently with
listing determination, and that action was arbitrary and capricious because administrative record was devoid of specific
data on lynx populations within last 24 years, forest service demonstrated that it properly considered lynx habitat and
properly consulted with FWS, and that consultation, coupled with previously developed lynx conservation strategies
and court's general deference to expertise of agencies, demonstrated that defendants' analysis regarding Canada lynx
was not arbitrary and capricious. Sierra Club v Bosworth (2005, DC Minn) 352 F Supp 2d 909, 59 Envt Rep Cas 2004.
Listing of population segments is proactive measure to prevent need for listing species over larger range--not tactic
for subdividing larger population Fish and Wildlife Service (FWS) has already determined warrants listing throughout
larger range; FWS does not have to list entire species as endangered when only one of its populations faces extinction.
Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological
Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).
4. Particular determinations
Regulations requiring shrimpers operating in offshore waters and in vessels 25 feet or longer to install and use certified "turtle excluder devices" (TED) in each of their trawls, and requiring shorter vessels or those trawling in inshore
waters to limit trawling period to 90 minutes or less as alternative to using TED, in order to reduce incidental catch and
mortality of sea turtles, which regulations attempted to supplement Endangered species Act (16 USCS §§ 1531 et seq.)
prohibition against "taking" of protected species, were not arbitrary or capricious, where relationship of shrimping to
sea turtle mortality is strongly demonstrated by data contained in administrative record; furthermore, decision of Commerce department, through its National Marine Fisheries Service, to attack one of major causes of sea turtle mortality
Page 49
16 USCS § 1533
through regulation is entirely within its discretion, and fact that regulations do not address other serious causes of such
mortality does not undermine validity of restriction, nor make them arbitrary or capricious. Louisiana ex rel. Guste v
Verity (1988, CA5 La) 853 F2d 322, 18 ELR 21351.
Forest Service's determination that exchange of land would have no significant impact on endangered and threatened species was not arbitrary and capricious where determination was based on field surveys. Lockhart v Kenops
(1991, CA8 SD) 927 F2d 1028, 21 ELR 20994, cert den (1991) 502 US 863, 116 L Ed 2d 148, 112 S Ct 186, reh den
(1991) 502 US 1020, 116 L Ed 2d 761, 112 S Ct 670.
Corps of Engineers and Fish and Wildlife Service did not act arbitrarily and capriciously in choosing particular site,
alleged to be habitat of endangered species, for construction of landfill, where all 4 sites considered contained wetlands,
one contained nesting area of bald eagle, and chosen site provided large natural vegetative buffer around all sides of
landfill. Fund for Animals v Rice (1996, CA11 Fla) 85 F3d 535, 42 Envt Rep Cas 1968, 35 FR Serv 3d 547, 26 ELR
21433, 10 FLW Fed C 12 (criticized in Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d
1070) and (criticized in Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 470 F Supp 2d 1118) and (criticized in Ocean Mammal Inst. v Gates (2008, DC Hawaii) 546 F Supp 2d 960, 67 Envt Rep Cas 1258).
Fish and Wildlife Service acted arbitrarily and capriciously in (1) publishing gnatcatcher's final listing as threatened
species without designating its critical habitat where Service never weighed benefits of designation against risks of designation and (2) rewriting its own "beneficial to species" test for prudence in designating habitat to "beneficial to most
of species." Natural Resources Defense Council v United States DOI (1997, CA9 Cal) 113 F3d 1121, 97 CDOS 3815,
97 Daily Journal DAR 6478, 44 Envt Rep Cas 2107, 27 ELR 20971, stay gr, remanded, motion den (2002, CD Cal) 275
F Supp 2d 1136.
Secretary of Interior has broad discretion to determine what methods to use in species conservation and presence of
healthy wolf populations in Canada and Alaska does not make recovery of United States wolf populations any less crucial; thus, court will reject argument that Secretary violated provision of 15 USCS § 1333 requiring Secretary to give
priority to species most likely to benefit from recovery plan. United States v McKittrick (1998, CA9 Mont) 142 F3d
1170, 98 CDOS 3148, 98 Daily Journal DAR 4351, 46 Envt Rep Cas 1790, 28 ELR 21197, cert den (1999) 525 US
1072, 142 L Ed 2d 667, 119 S Ct 806 and (criticized in United States v Kapp (2003, ND Ill) 2003 US Dist LEXIS
21169).
District court properly dismissed county's "failure to act" causes of action against U.S. Fish and Wildlife Service
(FWS) under 5 USCS § 706(1), and under 16 USCS § 1540(g)(1)(C); 16 USCS § 1533(c)(2) did not incorporate deadlines of petition process under § 1533(b)(3) and, therefore, FWS's determination in five-year review mandated under §
1533(c)(2) that listed marbled murrelets were not distinct population segment did not trigger judicially-enforceable duty
to promptly publish proposed rule delisting murrelets. Coos County Bd. of County Comm'rs v Kempthorne (2008, CA9
Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.
District court properly granted summary judgment in favor of National Marine Fisheries Service (NMFS) on claim
by environmental groups that NMFS's denial of their petitions to split natural and hatchery fish into separate evolutionarily significant units (ESU) for purposes of 16 USCS § 1533 was arbitrary and capricious under 5 USCS § 706(2)(A);
NMFS properly relied on its own science and gave reasoned explanation for rejecting petitions, and groups' emphasis on
threats hatchery fish posed to natural fish collapsed two analytically distinct phases of agency action--initial decision
regarding composition of ESU and subsequent decision whether to list ESU. Trout Unlimited v Lohn (2009, CA9 Wash)
559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.
District court properly granted summary judgment in favor of National Marine Fisheries Service (NMFS) on claim
by trade associations that NMFS's consideration of hatchery and naturally spawned fish separately during listing process
under 16 USCS § 1533 violated ESA; ESA only required that status review evaluate entire species, or evolutionary significant unit, including both hatchery and naturally spawned fish. Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d
946, 68 Envt Rep Cas 1904, 39 ELR 20061.
Secretary of Interior is not obligated to implement portion of grizzly bear--which is endangered species--protection
plan that provides for closure of certain campground in national park in bear's habitat under 16 USCS § 1533(f), where
Secretary has decided to keep campground open until completion of environmental impact statement that utilizes new
methods to study campground's impact on bears, because Secretary could reasonably have concluded that plan be stayed
until results of new analysis are available. National Wildlife Federation v National Park Service (1987, DC Wyo) 669
F Supp 384.
Page 50
16 USCS § 1533
Claim of environmental group that recovery plan developed by Fish and Wildlife Service (FWS) for grizzly bear is
deficient for failing to incorporate site-specific management actions as required by 16 USCS § 1533(f)(1)(B)(i) is denied
summarily, where management actions in plan are same for different geographical ecosystems, but in instances where
ecosystems differ, plan recommends different management actions, because site-specificity in plan demonstrates that
FWS considered specific needs of each grizzly ecosystem. Fund for Animals v Babbitt (1995, DC Dist Col) 903 F Supp
96, 42 Envt Rep Cas 1068, 26 ELR 20537, amd on other grounds, dismd, in part on other grounds (1997, DC Dist Col)
967 F Supp 6.
As National Marine Fisheries Service (NMFS) ignored its experts' conclusions that global taxon was inaccurate and
that best available science demonstrated that resident and transient killer whales did not belong to same taxon, NMFS
erred in considering Southern Residents with reference to global species Orcinus orca NMFS and this error likely affected whether significance determination was correct; therefore, "not warranted" finding was set aside and matter was
remanded to NMFS for re-determination of whether Southern Residents should have been listed pursuant to Endangered Species Act. Ctr. for Biological Diversity v Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340,
vacated on other grounds, remanded (2007, CA9 Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op
withdrawn on other grounds (2007, CA9 Wash) 511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65
Envt Rep Cas 1676, 38 ELR 20001.
With respect to listing particular plant as warranted but precluded under Endangered Species Act, 16 USCS §
1533(b)(3)(B), Fish and Wildlife Service unlawfully used critical habitat determinations for species that had already
been listed as justification for why listing of plant was precluded; agency's justification of its preclusion finding by its
work on already listed species was not in accordance with law under Administrative Procedure Act, 5 USCS §
706(2)(A). Cal. Native Plant Soc'y v Norton (2005, DC Dist Col) 60 Envt Rep Cas 1119, dismd (2005, App DC) 2005
US App LEXIS 15621.
Compliance with 16 USCS § 1533(b)(3)(B), part of Endangered Species Act, requires Fish and Wildlife Service to
justify its preclusion findings, if it can, by reference to pending listing proceedings for unlisted species and to make its
demonstration of expeditious progress, if it can, by reference to unlisted species. Cal. Native Plant Soc'y v Norton
(2005, DC Dist Col) 60 Envt Rep Cas 1119, dismd (2005, App DC) 2005 US App LEXIS 15621.
U.S. Fish & Wildlife Service's (FWS's) response to 90-day petition seeking review of whether cutthroat trout, indigenous to Upper Colorado River basin, was threatened or endangered species was flawed because FWS solicited input
from selected state and federal agencies, thus violating 16 USCS § 1533(b)(3)(A); as remedy, federal district court equitably ordered FWS to produce full-status review of species within nine months. Colo. River Cutthroat Trout v
Kempthorne (2006, DC Dist Col) 448 F Supp 2d 170, 63 Envt Rep Cas 1771.
When defendant Fish & Wildlife Service's 16 USCS § 1533(c)(2)(A) five-year review determined that tri-state population endangered bird listing should not be changed, but imposed no new legal obligations and did not deny plaintiff
forest products trade association any rights, it was not final agency action subject to review under 5 USCS § 704; association's 16 USCS § 1540(g)(1)(A) citizen suit challenge was dismissed for failure to state claim. Am. Forest Res. Council v Hall (2008, DC Dist Col) 533 F Supp 2d 84, dismd, as moot (2009, App DC) 2009 US App LEXIS 15421.
In case in which central issue was whether U.S. Fish and Wildlife Service (Service)could use distinct population
segment (DPS) tool to simultaneously designate and delist distinct population of animals that was thriving even though
broader species of which it was part remained endangered and listed as such elsewhere, and Service promulgated final
rule designating western Great Lakes populations of gray wolves as DPS and removing gray wolf from list of endangered and threaten wildlife, Service failed to acknowledge and address crucial ambiguities in Endangered Species Act
of 1973, 16 USCS §§ 1531 et seq., in course of promulgating final rule. Humane Soc'y of the United States v
Kempthorne (2008, DC Dist Col) 579 F Supp 2d 7, 68 Envt Rep Cas 1779, 38 ELR 20259.
Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to formulate recovery plan
for jaguar was set aside because "foreign species" exemption relied on by FWS, which asserted that no recovery plan
was required since jaguar was found primarily in other countries, did not apply since jaguar was not foreign species
where jaguar was found in United States and, considering prior practices of FWS, FWS had yet to exempt species from
recovery planning due to species' domestic range being limited or largely international, and had extended recovery plan
protections to other transnational species with limited domestic ranges. Ctr. for Biological Diversity v Kempthorne
(2009, DC Ariz) 607 F Supp 2d 1078, 39 ELR 20073.
Page 51
16 USCS § 1533
Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to formulate recovery plan
for jaguar was set aside because "other circumstances" exemption did not apply since jaguar's situation was not unique
or not easily foreseen, due to jaguar's primary presence in other countries, as FWS had anticipated implementing recovery plans when multiple nations were involved. Ctr. for Biological Diversity v Kempthorne (2009, DC Ariz) 607 F Supp
2d 1078, 39 ELR 20073.
U.S. Fish and Wildlife Service's (FWS) decision to designate Distinct Population Segment (DPS) for Greater Yellowstone Area grizzly bear population and remove population from "threatened" species list under 16 USCS §§
1532(20) and 1533 was arbitrary and capricious under 5 USCS § 706(2)(A); regulatory mechanisms relied upon by FWS
were inadequate, and record did not support FWS's conclusion that whitebark pine declines did not pose threat to Yellowstone grizzly bear DPS. Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39
ELR 20214.
In coalition's action challenging U.S. Fish and Wildlife Service's (FWS) decision to remove Yellowstone grizzly
bear distinct population segment from list of threatened species under 16 USCS § 1533, FWS was entitled to summary
judgment on claim that delisting decision was based on unacceptably small population size; FWS provided reasonable
explanation for its conclusions about genetic diversity and adequate effective population size. Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39 ELR 20214.
In coalition's action challenging U.S. Fish and Wildlife Service's (FWS) decision to remove Yellowstone grizzly
bear distinct population segment from list of threatened species under 16 USCS § 1533, FWS was entitled to summary
judgment on claim that FWS failed to properly evaluate whether grizzlies were recovered across "significant portion of
their range" for purposes of 16 USCS § 1532(20); FWS offered reasonable interpretation of ambiguous phrase "significant portion of its range." Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39
ELR 20214.
5.--Listing as threatened or endangered species
Since 16 USCS § 1533(b)(1)(A) specifically requires that listing determination be based solely on basis of best scientific and commercial data available, economic analysis is not factor in listing determination. N.M. Cattle Growers
Ass'n v United States Fish & Wildlife Serv. (2001, CA10 NM) 248 F3d 1277, 52 Envt Rep Cas 1500, 2001 Colo J C A R
2443, 31 ELR 20614 (criticized in Cape Hatteras Access Pres. Alliance v United States DOI (2004, DC Dist Col) 344 F
Supp 2d 108, 59 Envt Rep Cas 1686, 34 ELR 20136) and (criticized in Ctr. for Biological Diversity v BLM (2006, ND
Cal) 422 F Supp 2d 1115) and (questioned in criticized in Ariz. Cattle Growers' Ass'n v Kempthorne (2008, DC Ariz)
534 F Supp 2d 1013) and (criticized in Fisher v Salazar (2009, ND Fla) 656 F Supp 2d 1357) and (criticized in Ariz.
Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154).
Once U.S. Fish and Wildlife Service (FWS) renders final decision on petition seeking to list species as endangered,
issue of whether or not FWS acted arbitrarily in refusing to grant emergency listing status to species under 16 USCS §
1533(b)(7) becomes moot for U.S. Const. art. III, § 2, purposes; Third Circuit will not reach back past published Candidate Notice of Review and consider legal claims regarding FWS's earlier denial of emergency rule-making under 16
USCS § 1533(b)(7). Am. Bird Conservancy v Kempthorne (2009, CA3 NJ) 559 F3d 184, 39 ELR 20055.
Third Circuit declined to decide whether district court correctly concluded that it lacked jurisdiction under 5 USCS
§ 701(a)(2) to review U.S. Fish and Wildlife Service's (FWS) discretionary decision not to undertake emergency
rule-making to place species of migratory shorebird on endangered species list pursuant to 16 USCS § 1533(b)(7) because that issue became moot for U.S. Const. art. III, § 2, purposes once FWS made final determination pursuant to §
1533(b)(3)(B) that listing of species was warranted but precluded by higher-priority listing activity; there was no meaningful relief that appeals court could award with regard to emergency petition once FWS made final listing decision as
to species at issue, and emergency monitoring system set out in § 1533(b)(3)(C)(iii) provided quite substantial relief to
conservation groups that sought emergency listing for species. Am. Bird Conservancy v Kempthorne (2009, CA3 NJ)
559 F3d 184, 39 ELR 20055.
Nine-month timetable for issuance of "12-month" finding under Endangered Species Act, 16 USCS § 1533(b)(3),
was reasonable because Fish and Wildlife Service's delay in issuing finding was due to budget considerations and state
transportation department had agreed to postpone start of highway construction project until determination on species in
question was made. Save Our Springs Alliance v Norton (2005, WD Tex) 361 F Supp 2d 643.
Because final rule deviated substantially from proposed rule, defendants failed to provide public with adequate notice and opportunity for comment on Eastern Distinct Population Segments (DPS), in violation of 5 USCS § 553; be-
Page 52
16 USCS § 1533
cause Fish and Wildlife Service (FWS) expanded boundaries of DPS in final rule, it was bypassing application of Endangered Species Act (ESA), 16 USCS §§ 1531-1544, in non-core population areas; therefore, FWS's application of
Policy Regarding Recognition of Distinct Vertebrate Population (DPS Policy) was inconsistent with statute under which
regulations were promulgated, and final rule was vacated and remanded for reconsideration by FWS. Nat'l Wildlife
Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v
Norton (2005, DC NM) 411 F Supp 2d 1271).
Where U.S. Fish and Wildlife Service (FWS) determined that species warranted protection due to increased energy
development but was not of sufficient priority to warrant immediate protective rulemaking, FSW was not required to
emergency list species as threatened or endangered under 16 USCS § 1533(b)(3)(C)(iii), since FWS properly found no
significant risk to species or its habitat in near future. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285,
37 ELR 20215.
Because defendant Secretary of Interior's decision not to list species as endangered under emergency procedures of
16 USCS § 1533(b)(7) was discretionary matter, judicial review under Administrative Procedure Act, 5 USCS § 701(a),
was precluded and plaintiff environmental group was not allowed, under Fed. R. Civ. P. 15(a), (d), to supplement its
complaint to assert such claim. Wildearth Guardians v Kempthorne (2008, DC Dist Col) 592 F Supp 2d 18, 69 Envt Rep
Cas 1328.
Because defendant Secretary of Interior's decision not to list species as endangered under emergency procedures of
16 USCS § 1533(b)(7) was discretionary matter, judicial review under Administrative Procedure Act, 5 USCS § 701(a),
was precluded and plaintiff environmental group was not allowed, under Fed. R. Civ. P. 15(a), (d), to supplement its
complaint to assert such claim; case did not involve finding of "warranted but precluded" under § 1533(b)(3), thus, no
special emergency listing duties were involved. Wildearth Guardians v Kempthorne (2008, DC Dist Col) 592 F Supp 2d
18, 69 Envt Rep Cas 1328.
Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., requires that condition of listed species (or distinct population segments) be improved so that they will no longer need protection of ESA; reasonable implication of this requirement is that agencies should aim recovery efforts toward establishing self-sustaining populations. Cal. State
Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71
Envt Rep Cas 1583, 40 ELR 20226.
6.----Birds
District court's denial of preliminary injunction requested by wildlife group against issuance of permit for golf
course and housing project on basis that wildlife group failed to show harm to bald eagle species as whole was abuse of
discretion since Endangered Species Act standard is not benchmark for showing irreparable harm from permit issued
under Clean Water Act (CWA) § 404, 33 USCS § 1344; evidence presented, which showed that proposed development
posed significant risk of harming eagles, was adequate and not speculative. Greater Yellowstone Coalition v Flowers
(2003, CA10 Wyo) 321 F3d 1250, 55 Envt Rep Cas 2097, subsequent app (2004, CA10 Wyo) 359 F3d 1257, 58 Envt
Rep Cas 1008, 34 ELR 20019 (criticized in W. Watersheds Project v BLM (2006, DC Nev) 64 Envt Rep Cas 1030).
Fish and Wildlife Service's (FWS) determination that Northern Goshawk was not endangered was amply supported
by evidence in record and was affirmed on appeal pursuant to Administrative Procedures Act, 5 USCS § 706(2)(A);
FWS determined that best available scientific and commercial data did not indicate goshawk population was endangered
or threatened pursuant to Endangered Species Act, 16 USCS § 1533(b)(1)(A). Ctr. for Biological Diversity v Badgley
(2003, CA9 Or) 335 F3d 1097, 2003 CDOS 6393, 2003 Daily Journal DAR 8066, 56 Envt Rep Cas 1957, 33 ELR
20244.
Fund had no statutory right to petition Secretary of Interior for emergency listing of tri-state portion of trumpeter
swan population under 16 USCS § 1533(b)(7), and no right to decision meeting certain procedural or substantive standards. Fund for Animals, Inc. v Hogan (2005, App DC) 368 US App DC 238, 428 F3d 1059, 61 Envt Rep Cas 1353, 35
ELR 20225, reh den (2006, App DC) 2006 US App LEXIS 32751.
United States Fish and Wildlife Services letter addressing fund's petition for non-emergency listing of tri-state portion of Rocky Mountain trumpeter swan population was superseded by Services' belated 90-day finding. Fund for Animals, Inc. v Hogan (2005, App DC) 368 US App DC 238, 428 F3d 1059, 61 Envt Rep Cas 1353, 35 ELR 20225, reh den
(2006, App DC) 2006 US App LEXIS 32751.
Page 53
16 USCS § 1533
U.S. Fish and Wildlife Service (FWS) is ordered to vacate and redo its 90-day finding that petition to list northern
goshawks in western U.S. as threatened and endangered species did not present substantial information indicating that
proposed action may be warranted, where FWS, in many post-1978 cases, made listing decisions regarding "distinct
population segments" without requiring reproductive isolation or genetic differentiation as it did in this case, because
agency failed to conduct reasoned evaluation based on most current biological and scientific data available, as required
by 16 USCS § 1533(b)(1)(A). Southwest Ctr. for Biological Diversity v Babbitt (1996, DC Ariz) 926 F Supp 920, summary judgment gr, motion to strike gr, remanded (1997, DC Ariz) 980 F Supp 1080, 45 Envt Rep Cas 2015.
Determination not to list Queen Charlotte goshawk as threatened or endangered species under 16 USCS § 1533
could not be based on Forest Service's promises of proposed future actions to provide sanctuary for bird, where determination was required to be based on current Forest Service plan and current status of goshawk and its habitat. Southwest Ctr. for Biological Diversity v Babbitt (1996, DC Dist Col) 939 F Supp 49, 43 Envt Rep Cas 1862.
Fish and Wildlife Service's issuance of its preliminary finding upon citizen's petition to list Baird's Sparrow as endangered was not issued "to maximum extent practicable, within 90 days," and was unreasonably and unlawfully delayed in violation of 16 USCS § 1533(b)(3)(A), where Service took 23 months to make preliminary finding, because it
appears that Service has adopted improper policy of delaying making flexible 90-day finding so as to delay application
of mandatory 12-month period for making final ruling on petitions. Biodiversity Legal Found. v Babbitt (1999, DC Dist
Col) 63 F Supp 2d 31, 49 Envt Rep Cas 1477.
Environmental groups and wildlife enthusiasts were granted summary judgment on their claim that federal officials'
decision to deny 16 USCS § 1533(b)(7) emergency petition to list Trumpeter swan population as threatened or endangered was arbitrary and capricious under 5 USCS § 706(2)(A) where federal officials' explanation for denial did not
provide even cursory explanation as to why Trumpeter swan population was not considered separate population from
another population. Fund for Animals v Williams (2003, DC Dist Col) 246 F Supp 2d 27, amd on other grounds (2004,
DC Dist Col) 311 F Supp 2d 1, affd (2005, App DC) 368 US App DC 238, 428 F3d 1059, 61 Envt Rep Cas 1353, 35
ELR 20225, reh den (2006, App DC) 2006 US App LEXIS 32751.
U.S. Secretary of Interior was granted summary judgment on claim that she unlawfully delayed in issuing 90-day
finding required by 16 USCS § 1533(b)(3)(A) on environmental organizations' petition to list Mono sage grouse as endangered species, as Secretary demonstrated that fiscal year budget for endangered species and critical habitat listing
had been committed to other listing activity dictated by court orders and settlement agreements, but organizations had
offered no evidence that funds allotted to listing activity had actually been expended for some other purpose. Inst. for
Wildlife Prot. v Norton (2003, WD Wash) 303 F Supp 2d 1175.
In challenge to finding made by Fish and Wildlife Service regarding Montana fluvial arctic grayling, Service was
ordered to provide fuller evidentiary basis for its finding that listing for grayling was warranted but precluded by financial and legal restraints and that it was making expeditious progress in context of those restraints. Ctr. for Biological
Diversity v United States Fish & Wildlife Serv. (2004, DC Dist Col) 350 F Supp 2d 23, 59 Envt Rep Cas 1809.
Environmental groups were not entitled to attorney fees under 16 USCS § 1540(g)(4), in their action seeking to
compel United States Fish and Wildlife Service to list California spotted owl as endangered and threatened species under 16 USCS § 1533; groups failed to realize goals of their lawsuit, and their success in obtaining timely consideration
of subsequent listing petition could not be characterized as partial success for purposes of catalyst doctrine of fee shifting. Ctr. for Biological Diversity v Scarlett (2006, ND Cal) 452 F Supp 2d 966.
Environmental group was entitled to summary judgment in its action under Administrative Procedure Act, 5 USCS
§§ 701 et seq., challenging U.S. Fish and Wildlife Service's (FWS) decision to reject petitions to list greater sage-grouse
under 16 USCS § 1533, because decision was arbitrary and capricious under 5 USCS § 706(2)(A); FWS's decision-making process violated requirement that "best science" be applied, lacked coherent analysis of deterioration of
habitat and regulatory mechanisms designed to protect sage-grouse, and was tainted by inexcusable conduct of FWS
executive. Western Watersheds Project v United States Forest Serv. (2007, DC Idaho) 535 F Supp 2d 1173, 66 Envt
Rep Cas 1693.
Although group alleged that United States Fish and Wildlife Service (FWS), FWS Secretary, and Director violated
16 USCS § 1533(b)(3)(A) by failing to make timely 90-day finding as to whether group's petition to list 13 species of
foreign macaws, parrots and cockatoos as threatened or endangered, offered substantial information suggesting that petitioned action may have been warranted; however, FWS placed 90-day finding concerning group's petition on public
inspection at Federal Register, and finding was published next day; as FWS took action group requested, group's claim
Page 54
16 USCS § 1533
for injunctive relief was moot, and if facts underlying action changed such that there was no immediate controversy
between parties, claim for declaratory judgment failed. Friends of Animals v Salazar (2009, DC Dist Col) 670 F Supp
2d 7.
7.----Fish
Fish and Wildlife Service (FWS) adequately considered best scientific data available as required by 16 USCS §
1533(b)(1)(A) in reaching decision to list Alabama sturgeon as endangered; FWS acted within its discretion under 5
USCS § 706(2)(A), part of Administrative Procedure Act, in considering genetic evidence as one, but not sole, factor in
finding that Alabama sturgeon's taxonomy differed enough from that of shovelnose sturgeon to classify it as separate
species. Alabama-Tombigbee Rivers Coalition v Kempthorne (2007, CA11 Ala) 477 F3d 1250, 63 Envt Rep Cas 2098,
37 ELR 20040, 20 FLW Fed C 293, cert den (2008) 552 US 1097, 128 S Ct 877, 169 L Ed 2d 725, 66 Envt Rep Cas
1416.
District court erred in granting summary judgment in favor of environmental groups on their claim that Policy on
Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) (Hatchery Listing Policy) and National
Marine Fisheries Service's corresponding downlisting of Upper Columbia River steelhead from endangered to threatened under 16 USCS § 1533 violated Endangered Species Act (ESA), 16 USCS §§ 1531 et seq.; basing listing determinations on status of entire evolutionary significant unit, including hatchery fish, did not violate ESA, and decisions were
based on best scientific evidence available as required under 16 USCS § 1533(b)(1)(A). Trout Unlimited v Lohn (2009,
CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.
On challenge by plaintiffs, fisherman and environmental groups, due to lack of genetic (introgression) data on hybridization, it was not unreasonable for defendants, heads of Department of Interior and United States Fish and Wildlife
Service, to rely on morphological (characteristic) data to classify westslope cutthroat trout (WCT) -- even though some
of those counted may have had introgression levels greater than 20%; under 16 USCS § 1533(b)(1)(A), listing determinations were to be made solely on best scientific and commercial data available and genetic data was not available for
large majority of WCT populations. Am. Wildlands v Kempthorne (2008, App DC) 382 US App DC 78, 530 F3d 991, 67
Envt Rep Cas 1107, 38 ELR 20165.
Fish and Wildlife Service's finding that listing of bull trout as threatened or endangered species was "warranted but
precluded" is reversed and remanded for reconsideration, where Service explained that it considered threat to bull trout's
continued existence to be only "moderate" due to its widespread range, existence of populations in protected areas, and
ongoing management changes that are expected to benefit some populations, because record reveals that reliance on
these factors, without further explanation, is so questionable and internally inconsistent as to render that reliance arbitrary and capricious. Friends of the Wild Swan v United States Fish & Wildlife Serv. (1996, DC Or) 945 F Supp 1388,
43 Envt Rep Cas 1873, 27 ELR 20524 (criticized in Oregon Natural Resources Council v Daley (1998, DC Or) 6 F
Supp 2d 1139, 29 ELR 20514) and (Reversal noted in Ctr. for Biological Diversity v Salazar (2010, ND Cal) 2010 US
Dist LEXIS 113757).
Decision of National Marine Fisheries Service not to list steelhead as threatened species under 16 USCS § 1533
within evolutionary significant unit (ESU) was arbitrary and capricious, where Service had listed steelhead as threatened in ESU in proposed rule, and Service relied exclusively on states' voluntary and future actions, despite its finding
in proposed rule that past state conservation efforts were inadequate. Fed'n of Fly Fishers v Daley (2000, ND Cal) 131
F Supp 2d 1158.
U.S. Fish and Wildlife Service must address 1998 study of "Movements and Conservation of Cutthroat Trout,"
even though review of denial of endangered species listing is generally limited to agency record, where study may have
been completed too late to make administrative record, and may explain why number of stream miles in habitat of trout
population is important to nonmigratory fish, because extra record evidence may be considered to ascertain whether
agency considered all relevant factors. Southwest Ctr. for Biological Diversity v Babbitt (2001, DC Dist Col) 131 F
Supp 2d 1.
Decision of Fish and Wildlife Service to dismiss petition seeking to delist certain sucker fish pursuant to 16 USCS §
1533(b)(3)(A) was arbitrary and capricious when administrative record contained evidence that fish populations were
substantially increasing. Moden v United States Fish & Wildlife Serv. (2003, DC Or) 281 F Supp 2d 1193, subsequent
app, magistrate's recommendation (2008, DC Or) 2008 US Dist LEXIS 115157, adopted, motion gr, request den, summary judgment den, judgment entered (2008, DC Or) 2008 US Dist LEXIS 86810.
Page 55
16 USCS § 1533
Government agency's exercise of deliberative process privilege was upheld as to documents concerning scientific
analysis to end that Rio Grande cutthroat trout should not be listed as endangered species. Ctr. for Biological Diversity v
Norton (2004, DC NM) 336 F Supp 2d 1149.
In plaintiff environmental group's challenge to failure to list particular fish under Endangered Species Act, 16
USCS §§ 1531-1544, deliberative process privilege applied to Fish & Wildlife Services' internal recommendation discussions, biologist comments on population viability, or suggested revisions to draft; 16 USCS § 1533(b)(1)(A) did not
prohibit agency from creating recommendations, draft documents, proposals, suggestions, and other subjective documents that reflected personal opinions during its process, even it had to "rely" only on best scientific and commercial
data in reaching its final decision. Ctr. for Biological Diversity v Norton (2004, DC NM) 336 F Supp 2d 1155, review
den, app dismd (2005, DC NM) 411 F Supp 2d 1271.
Summary judgment granted against environmental group's challenge of U.S. Fish and Wildlife Service's (FWS) decision under Endangered Species Act (Act) that listing of coastal cutthroat trout was not warranted; FWS considered
relevant factors and articulated rational connection between facts found and choice made. Ctr. for Biological Diversity v
United States Fish & Wild-Life Serv. (2005, DC Or) 402 F Supp 2d 1198, affd in part and revd in part on other grounds,
remanded (2008, CA9 Or) 274 Fed Appx 542.
In rejecting environmentalists' challenge to decision not to list Rio Grande cutthroat trout as endangered, court upheld Fish and Wildlife Service's interpretation of phrase "significant portion of range" in definition of "endangered" to
mean portion that was so important to continued existence of species that threats to species in that area could have effect
of threatening viability of species as whole. Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271.
In rejecting environmentalists' challenge to decision not to list Rio Grande cutthroat trout (RGCT) as endangered,
court agreed that RGCT was not threatened in biologically significant portion of its range, even though its geographic
and/or historic range may have been significantly reduced, and that there was neither logical nor legal error in Fish and
Wildlife Service's approach to finding that 13 core populations of RGCT were not threatened with extinction in all or
significant portion of range due to any of factors under 16 USCS § 1533(a)(1); court could not say that Fish and Wildlife Service's conclusions with regard to four challenged factors under 16 USCS § 1533(a)(1) were arbitrary and capricious or failed to conform to certain minimal standards of rationality. Ctr. for Biological Diversity v Norton (2005, DC
NM) 411 F Supp 2d 1271.
Fish and Wildlife Service's (FWS's) refusal to list westslope cutthroat trout as threatened or endangered species
under Endangered Species Act, 16 USCS §§ 1532(6), 1532(20), 1533(c), was judicially upheld; its use of morphological
rather than strictly genetic method and its inclusion of hybridized fish in its status review was not arbitrary under Administrative Procedures Act, 5 USCS § 706(2)(A), because FWS applied five factors of potential threat to species, including threat of hybridization, under 16 USCS § 1533(a)(1). Am. Wildlands v Kempthorne (2007, DC Dist Col) 478 F
Supp 2d 92.
National Marine Fisheries Service (NMFS) was entitled to summary judgment in fishing association's action challenging NMFS's listing of Lower Columbia River (LCR) Coho salmon under 16 USCS § 1533, part of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq.; NMFS did not violate ESA or act arbitrarily under 5 USCS § 706(2)(A) of
Administrative Procedure Act in determining that, despite large numbers of hatchery fish, loss of naturally spawning
populations, low abundance of extant populations, diminished diversity, and fragmentation and isolation of remaining
naturally produced fish conferred considerable risks to LCR Coho salmon evolutionarily significant unit. Marincovich v
Lautenbacher (2008, DC Or) 553 F Supp 2d 1237, 67 Envt Rep Cas 1534.
County dike district violated Endangered Species Act because reconstructing tidegates resulted in harm to threatened Chinook salmon, which constituted taking under 16 USCS §§ 1532(19) and 1538(a)(1)(B) in that taking prohibition was extended to salmon under 16 USCS § 1533(d). Swinomish Indian Tribal Cmty. v Skagit County Dike Dist. No.
22 (2008, WD Wash) 618 F Supp 2d 1262.
Pursuant to 16 USCS § 1533(b)(1)(A), best available science concerning Oncorhynchus mykiss (O. mykiss) justified National Marine Fisheries Service's decision to draw distinctions between naturally-spawned and hatchery-born
fish, even if both were part of same distinct population segment (DPS), where agency had employed process, set forth in
its hatchery listing policy, that gave weight to natural component of DPS, as science required, but also considered all
portions of DPS, and science strongly indicated that naturally-spawned and hatchery-born O. mykiss were different and
that hatchery fish could have had wide range of effects on long term viability of O. mykiss populations. Cal. State
Page 56
16 USCS § 1533
Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71
Envt Rep Cas 1583, 40 ELR 20226.
National Marine Fisheries Service sufficiently justified departing from its past practice of applying its own evolutionary significant unit policy to instead apply joint distinct population segment policy (DPS policy) in deciding to exclude resident Oncorhynchus mykiss (O. mykiss) from distinct population segments where agency's decision was not
based on any scientific dispute, and record supported agency's conclusion that more significant separation between resident and anadromous O. mykiss sets them apart from other types of Pacific salmon so that DPS Policy was best fit for
evaluating O. mykiss. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd
(2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.
Unpublished Opinions
Unpublished: Fish and Wildlife Service's (FWS) decision not to designate Southwestern Washington/Columbia
River Distinct Population Segment (DPS) of coastal cutthroat trout as threatened under 16 USCS § 1533 was arbitrary
under 5 USCS § 706(2)(A) to extent that FWS failed to consider at all whether marine, estuary, and near-shore ocean
areas of this DPS constituted significant portion of its range; because FWS's own reasoning recognized danger to estuary and marine areas and importance of those areas, FWS was required to consider whether those areas constituted significant portion of range. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2008, CA9 Or) 274 Fed
Appx 542.
8.----Mammals
Agency, without reopening comment period, could use supplementary data, unavailable during notice and comment
period, that expanded on and confirmed information contained in proposed rulemaking and addressed alleged deficiencies in pre-existing data, so long as no prejudice was shown; because post-comment information was only important,
not critical, to United States Fish and Wildlife Service's (FWS) decision not to list Buena Vista Shrew as endangered
subspecies, and given deference owed to agencies in making such scientifically-based decisions, district court's judgment that no serious or substantial reason existed to negate listing and provide for new comment period was affirmed.
Kern County Farm Bureau v Allen (2006, CA9 Cal) 450 F3d 1072, 62 Envt Rep Cas 1865, 36 ELR 20117.
United States Fish and Wildlife Service had articulated reasonable basis--Washington western gray squirrel population's lack of biologically and ecologically distinguishing features--for its conclusion that loss of population would not
cause significant gap and its decision to deny petition to list squirrels as endangered "distinct population segment" under
16 USCS § 1533 was not arbitrary or capricious. Northwest Ecosystem Alliance v United States Fish & Wildlife Serv.
(2007, CA9 Or) 475 F3d 1136, 63 Envt Rep Cas 1993.
Environmental groups' challenge to decision of Fish and Wildlife Service (FWS) not to reclassify grizzly bear population within particular ecosystem from "threatened" to "endangered" is granted summarily, where FWS concluded
that human-caused mortality of bears is decreasing, because conclusion is not supported by record since (1) studies upon which FWS relied provide no support for predicting any trend regarding human-caused mortality, and (2) FWS
should have been aware of, but ignored, evidence showing that human-caused mortalities had increased in 1992. Carlton v Babbitt (1995, DC Dist Col) 900 F Supp 526, 42 Envt Rep Cas 1083, 26 ELR 20396.
Fish and Wildlife Service could not rely on possibility that future revisions of Service's national forest and wildlife
management plan would ensure survival of threatened wolf species, so as to deny environmental group's petition to list
wolf as threatened or endangered species, where environmental group's petition was supported by Service's acknowledgment that long- term survival of wolf was threatened under current plan, and threatened destruction of wolf's habitat
supported listing of species as threatened or endangered, because determination not to list species was not made solely
on basis of best scientific and commercial data as required by 16 USCS § 1533. Biodiversity Legal Found. v Babbitt
(1996, DC Dist Col) 943 F Supp 23, 44 Envt Rep Cas 1573, 27 ELR 20462.
U.S. Fish and Wildlife Service decision not to list Canada Lynx and grant it protections of Endangered Species Act
(16 USCS §§ 1531 et seq.) is arbitrary and capricious and must be set aside, where exhaustive, 50-page study of Region
6 biologists contains detailed analysis and concludes that at least 4 of 5 factors require listing of Lynx, while Service's
cursory, 5-page decision merely states category heading and then ignores evidence and analysis of its experts, because
decision applied incorrect legal standard, relied on glaringly faulty factual premises, and ignored views of its own experts. Defenders of Wildlife v Babbitt (1997, DC Dist Col) 958 F Supp 670, 44 Envt Rep Cas 1970, 27 ELR 21113.
Page 57
16 USCS § 1533
Administrative decision not to list Cook Inlet Beluga Whale as "endangered" or "threatened" under 16 USCS §
1533(a)(1) was not arbitrary, capricious, or abuse of discretion, where agency concluded that over utilization did not
support Endangered Species Act listing because it had been stopped by "depleted" designation under 16 USCS § 1362,
agency adequately explained its decision to depart from recommendation of International Union for Conservation of
Nature and Natural Resources, and listing decision was not impermissibly affected by political considerations. Cook
Inlet Beluga Whale v Daley (2001, DC Dist Col) 156 F Supp 2d 16.
Secretary of Interior erred by failing to apply down listing factors outside gray wolf's core areas, but reduced wolf's
status from endangered to threatened in some regions nonetheless, and therefore Secretary's final rule was vacated; entire Eastern and Western distinct population segments were down listed without analyzing threats to wolf outside of
core areas, as required by 16 USCS § 1533(a)(1); enjoining final rule was necessary because 16 USCS § 1533(d) permitted lethal and non-lethal harm to gray wolf. Defenders of Wildlife v Sec'y, United States DOI (2005, DC Or) 354 F
Supp 2d 1156, 35 ELR 20033.
Final rule to reclassify and remove gray wolf from list of endangered and threatened wildlife in portions of conterminous U.S. issued by Fish and Wildlife Service made all other portions of wolf's historical or current range outside of
core gray wolf populations insignificant and unworthy of stringent protection; Secretary of Department of Interior's
conclusion that gray wolf was not at risk in significant portion of its range was contrary to plain meaning of Endangered
Species Act (ESA), 16 USCS §§ 1531-1544, phrase "significant portion of its range," and therefore, was arbitrary and
capricious application of ESA. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822
(criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).
Where Asian elephants were listed as endangered under 16 USCS § 1533, circus owner's Asian elephants were not
exempt from taking prohibition of 16 USCS § 1538, as defined by 16 USCS § 1532(19), because exemption was unambiguously applicable to other provisions; thus, disputed facts existed, precluding summary judgment, as to whether
owner's treatment of elephants not subject to captive-bred wildlife permit constituted taking under Endangered Species
Act. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas
1243.
U.S. Fish and Wildlife Service did not violate Administrative Procedure Act, 5 USCS § 706, of when it reexamined
its decision not to list Florida black bear as threatened or endangered under 16 USCS Endangered Species Act, §§ 1532
and 1533, because, on remand, agency was required to consider regulations and data available when decision was first
made rather than later data; decision was not arbitrary or capricious where agency relied on best available scientific and
commercial data available at time decision was first made and it was not necessary to analyze extent of habitat loss on
private lands. Defenders of Wildlife v Kempthorne (2008, DC Dist Col) 535 F Supp 2d 121.
Canada lynx's status as threatened as opposed to endangered species did not take it outside prohibitions against
taking in 16 USCS § 1538(a)(1)(B); no special rule pursuant to 16 USCS § 1533(d) was applicable. Animal Welfare Inst.
v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110,
injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009,
DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR
20001.
9.----Reptiles and amphibians
Despite absence of total agreement within scientific community, Secretary of Interior did not act arbitrarily and capriciously when he listed Alabama red-bellied turtle as endangered species, given scientific support from numerous
herpetologists, where Secretary considered that turtle's status as separate species had been questioned in past. United
States v Guthrie (1995, CA11 Ala) 50 F3d 936, 25 ELR 21097, 9 FLW Fed C 3.
Summary judgment was improperly granted for Secretary of Interior and Director of U.S. Fish and Wildlife Service
(FWS) because other proposals leading to their "warranted but precluded" finding under Endangered Species Act, 16
USCS §§ 1531 et seq., regarding endangered frog were not published, along with finding that expeditious progress was
being made to list qualified species, as was required by 16 USCS § 1533(b)(3)(B)(iii); further, FWS' finding could not
be supported by statements that were made in Candidate Notice of Review publications because they were not published
together with finding; thus, its finding was arbitrary and capricious as was contemplated under 5 USCS § 706(2)(A). Ctr.
for Biological Diversity v Kempthorne (2006, CA9 Cal) 466 F3d 1098, 36 ELR 20212.
District court erred in granting summary judgment in favor of Secretary of Interior in action by conservation organizations that challenged Secretary's decision to withdraw rule proposing that flat-tailed horned lizard be listed as
Page 58
16 USCS § 1533
threatened species under Endangered Species Act (ESA), 16 USCS §§ 1532(20), and 1533; decision was arbitrary and
capricious under 5 USCS § 706(2)(A) because Secretary improperly assessed significance of lizard's lost range based on
unsupported finding that lizard populations persisted throughout most of species' current range. Tucson Herpetological
Soc'y v Salazar (2009, CA9 Ariz) 566 F3d 870, 68 Envt Rep Cas 2131, 39 ELR 20107.
Secretary of Interior violated 16 USCS § 1533(b)(3)(A) when he failed to make initial finding on petition to list rare
salamander as endangered within 90 days of receiving petition, when he failed to determine whether listing was warranted within 12 months of his initial finding, and when he missed nondiscretionary 12-month deadline to either list
species, withdraw proposed listing, or extend period for consideration by 6 additional months. Save Our Springs v Babbitt (1997, WD Tex) 27 F Supp 2d 739, subsequent app (1997, CA5 Tex) 115 F3d 346, 38 FR Serv 3d 423, 27 ELR
21152.
Fish and Wildlife Service (FWS) was entitled to summary judgment in action under 16 USCS § 1540(g)(1)(A),
which was filed by builder associations challenging FWS' designation of Central California population of California
tiger salamander as "threatened" under Endangered Species Act; FWS did not act arbitrarily and capriciously under 5
USCS § 706(2)(A) when it discounted results of population study as not being best available scientific data for purposes
of 16 USCS § 1533(b) because FWS found that methodology of study was flawed to point of not being reliable, and it
backed up its conclusion with reasoned evaluation of study and its own estimates. Home Builders Ass'n v United States
Fish & Wildlife Serv. (2007, ND Cal) 529 F Supp 2d 1110, affd (2009, CA9 Cal) 321 Fed Appx 704, 39 ELR 20086.
U.S. Fish and Wildlife Service (FWS) was entitled to summary judgment in action under 16 USCS § 1540(g)(1)(A),
which was filed by builder associations challenging FWS' designation of Central California population of California
tiger salamander as "threatened" under Endangered Species Act, 16 USCS §§ 1531 et seq.; FWS considered inadequacy
of existing regulatory mechanisms as required by 16 USCS § 1533(a)(1), and it rationally concluded that there was inadequate protection under Clean Water Act, 33 USCS §§ 1251 et seq., California Streambed Alteration Act, Cal. Fish &
Game Code §§ 1600 et seq., California Environmental Quality Act, Cal. Pub. Res. Code §§ 21000 et seq., and California Porter-Cologne Water Quality Control Act, Cal. Water Code §§ 13000 et seq.; further, FWS articulated standard,
which was five-factor threats analysis under 16 USCS § 1533(a)(1) and standard under 16 USCS § 1532(20), for ascertaining salamander's threatened status; listing was not rendered arbitrary and capricious under 5 USCS § 706(2)(A) just
because threat estimates decreased as other facts, such as habitat loss and development risks, supported listing. Home
Builders Ass'n v United States Fish & Wildlife Serv. (2007, ND Cal) 529 F Supp 2d 1110, affd (2009, CA9 Cal) 321
Fed Appx 704, 39 ELR 20086.
10.----Other particular species
In case of Fish and Wildlife's decision to list 4 different species of "fairy shrimp" as endangered, district court's certification of listing under Civil Procedure Rule 54 was inadequate where it provided no reason for its certification.
Building Indus. Ass'n v Babbitt (1998, App DC) 333 US App DC 190, 161 F3d 740, 47 Envt Rep Cas 1701, 42 FR Serv
3d 114, 29 ELR 20328.
Secretary of Interior could be required to issue 12-month finding regarding checkerspot butterfly within 30 days of
order requiring issuance of finding, rather than after beginning of next fiscal year, where Secretary needed to supplement already drafted proposed 12-month finding with new information on butterfly and its habitat and to review
12-month finding, and consideration of Secretary's budget crisis caused by judicially imposed deadlines in other cases
was forbidden in determining how quickly Secretary could fill requirements of 16 USCS § 1533(b)(3)(B). Ctr. for Biological Diversity v Norton (2001, DC NM) 163 F Supp 2d 1297, 53 Envt Rep Cas 1637.
Where U.S. Fish and Wildlife Service (FWS) issued incidental take permit (ITP) pursuant to 16 USCS §
1539(a)(1)(B) to city, subject to condition, after it entered into contract (IA) with city to complete proposed project,
argument waged by intervening builders that language in IA bound FWS to allow take of vernal pool species failed because ITP, not IA, defined extent of authorized take; protections of Endangered Species Act applied only to those species that were officially listed as either threatened or endangered, pursuant to 16 USCS § 1533, and language in IA regarding "covered species subject to incidental take" was meant to identify those species that were adequately conserved
that would receive assurances as defined in ITP; moreover, contract interpretation rules did not demand different result
because parties' intentions or expectations were not issue, and there was nothing remotely unfair or arbitrary about requirement in ITP that any disturbance of vernal pool that equated with filling its basis would also require Clean Water
Act permit from U.S. Army Corps of Engineers. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F
Supp 2d 1070, injunction gr, summary judgment gr, in part, summary judgment den, in part on other grounds, remanded
(2006, SD Cal) 470 F Supp 2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC
Page 59
16 USCS § 1533
Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011
US App LEXIS 950.
11.--Designation of critical habitat
Public participation following notice of proposed habitat designation may provide agencies with valuable information as they prepare to render final decision; however, this participation is not benefit resulting from designation, but
rather, is component of decision making process. Sierra Club v United States Fish & Wildlife Serv. (2001, CA5 La) 245
F3d 434, 52 Envt Rep Cas 1464, 31 ELR 20504.
Congress intended that Fish and Wildlife Service conduct full analysis of all of economic impacts of critical habitat
designation, regardless of whether those impacts are attributable coextensively to other causes; thus, baseline approach
to economic analysis (which utilizes "but for" method for determining what economic impacts flow from critical habitat
designation) is not in accord with language or intent of Endangered Species Act. N.M. Cattle Growers Ass'n v United
States Fish & Wildlife Serv. (2001, CA10 NM) 248 F3d 1277, 52 Envt Rep Cas 1500, 2001 Colo J C A R 2443, 31 ELR
20614 (criticized in Cape Hatteras Access Pres. Alliance v United States DOI (2004, DC Dist Col) 344 F Supp 2d 108,
59 Envt Rep Cas 1686, 34 ELR 20136) and (criticized in Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F
Supp 2d 1115) and (questioned in criticized in Ariz. Cattle Growers' Ass'n v Kempthorne (2008, DC Ariz) 534 F Supp
2d 1013) and (criticized in Fisher v Salazar (2009, ND Fla) 656 F Supp 2d 1357) and (criticized in Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154).
Statute does not expressly require notice for remaining two available actions in § 1533(b)(6)(A)(i), including finding that revision should not be made; indeed, § 1533(b)(6)(A)(i)(II) directs U.S. Fish & Wildlife Service to issue final
regulation to implement finding that revision or designation, will not be made, and Congress did not intend to require
notice when Service takes one of these two actions. Ctr. for Biological Diversity v United States Fish & Wildlife Serv.
(2006, CA9 Cal) 450 F3d 930, 62 Envt Rep Cas 1873, 36 ELR 20102.
Endangered Species Act of 1973 does not provide procedural right to have critical habitat proposal issued at same
time as listing proposal, or to have habitat proposed before time runs out for commenting about listing. Alabama-Tombigbee Rivers Coalition v Kempthorne (2007, CA11 Ala) 477 F3d 1250, 63 Envt Rep Cas 2098, 37 ELR
20040, 20 FLW Fed C 293, cert den (2008) 552 US 1097, 128 S Ct 877, 169 L Ed 2d 725, 66 Envt Rep Cas 1416.
Determining whether species uses area with sufficient regularity that it is "occupied" is highly contextual and
fact-dependent inquiry. Relevant factors may include how often area is used, how species uses area, necessity of area
for species' conservation, species characteristics such as degree of mobility or migration, and any other factors that may
bear on inquiry; such factual questions are within purview of unique expertise of U.S. Fish and Wildlife Services and
are entitled to standard deference afforded such agency determinations. Ariz. Cattle Growers' Ass'n v Salazar (2009,
CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.
Discretionary procedures performed by Fish and Wildlife Service cannot justify deviation from statutory mandate
of 16 USCS § 1533 for concurrent designation of critical habitat when species is designated as threatened or endangered. Butte Envtl. Council v White (2001, ED Cal) 145 F Supp 2d 1180.
U.S. Fish and Wildlife Service must proceed to designate critical habitat for endangered and threatened species in
Tennessee, and court reluctantly accepts Service's proposed schedule for doing so, even though Service also argues this
suit is time-barred under 28 USCS § 2401(a) 6-year statute of limitations, where species were listed as endangered or
threatened on March 17, 1993 but environmental group did not file suit until October 12, 2000, because 16 USCS §
1533(b)(6)(C) mandates designation of critical habitat within one year of listing, and Service's non-action did not trigger
running of limitations period but rather constitutes continuing violation of § 1533. Southern Appalachian Biodiversity
Proj. v United States Fish & Wildlife Serv. (2001, ED Tenn) 181 F Supp 2d 883, 54 Envt Rep Cas 1733 (criticized in
Ctr. for Biological Diversity v Hamilton (2005, ND Ga) 385 F Supp 2d 1330) and (criticized in Inst. for Wildlife Prot. v
United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).
Fish and Wildlife Service moved to vacate and remand critical habitat designations in light of Tenth Circuit's decision in New Mexico Cattle Growers Ass'n., which required that economic impacts be fully considered at time of critical
habitat designation. Bldg. Indus. Legal Def. Found. v Norton (2002, DC Dist Col) 231 F Supp 2d 100, 55 Envt Rep Cas
1730, 33 ELR 20110.
District court found that environmental impact statement and biological opinion that were prepared before Secretary of Interior made her decision to make entire Northwest Petroleum Reserve in Alaska available for oil and gas leas-
Page 60
16 USCS § 1533
ing considered other reasonable alternatives and were not flawed; court denied environmental center's request for judgment declaring that agents and officials of federal government violated National Environmental Policy Act, 42 USCS §§
4321-4370f, Administrative Procedure Act, 5 USCS § 706, and Endangered Species Act, 16 USCS §§ 1531-1544, when
they prepared integrated activity plan/environmental impact statement and biological opinion that Secretary used to
make her decision. N. Alaska Envtl. Ctr. v Norton (2005, DC Alaska) 361 F Supp 2d 1069, subsequent app (2006, CA9
Alaska) 457 F3d 969, 62 Envt Rep Cas 2001, 36 ELR 20141.
United States Fish and Wildlife Service's (FWS) exclusions of critical habitat pursuant to § 4(b)(2) of Endangered
Species Act, 16 USCS § 1533(b)(2), had to be remanded to FWS for further action and consideration consistent with all
applicable laws and with reasoning of court's order. Home Builders Ass'n v United States Fish & Wildlife Serv. (2006,
ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226, motion withdrawn, motion den, remanded on other grounds (2007, ED
Cal) 2007 US Dist LEXIS 5208.
In action in which environmental organizations filed suit against defendants, Bureau of Land Management and U.S.
Fish and Wildlife Service, alleging violations of Endangered Species Act (ESA), NEPA, Federal Land Policy and
Management Act of 1976, and APA, it was arbitrary and capricious for Service to rely on critical assumption that lacked
support in record to justify excluding significant portions of critical habitat; moreover, in relying on unsubstantiated
assumption that was critical to its exclusion decision, Service did not rely on "best scientific and commercial data
available" as required by ESA. Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115, judgment entered (2006, ND Cal) 2006 US Dist LEXIS 73668.
In action in which environmental organizations filed suit against defendants, Bureau of Land Management and U.S.
Fish and Wildlife Service, alleging violations of Endangered Species Act, NEPA, Federal Land Policy and Management
Act of 1976, and APA, because record indicated that only very small amount of non-off-highway vehicle (OHV) recreation had historically occurred in areas closed to OHV use, Service did not abuse its discretion in concluding that any
increase in non-OHV recreation that might result from future closure would be insignificant. Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115, judgment entered (2006, ND Cal) 2006 US Dist LEXIS 73668.
Because Secretary of Department of Interior is unequivocally required to designate critical habitat unless doing so
would not be prudent, Secretary's duty under law continues until final regulation is published, thus, even if plaintiff's
right of action was to have accrued when deadline passed and statute of limitations expired in six years under 28 USCS
§ 2401, Secretary's violation is ongoing and does not constitute discrete one-time violation with lingering effects or
consequences; continuing violation doctrine applies to such instances. Schoeffler v Kempthorne (2007, WD La) 493 F
Supp 2d 805 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist
LEXIS 90969).
Group's claim that United States Fish and Wildlife Service (FWS), Secretary of Interior, and FWS Director violated
16 USCS § 1533(b)(3)(B) by failing to make 12-month finding on group's January 2008 petition had to be dismissed
because when bringing action pursuant to citizen suit provisions of Endangered Species Act, 16 USCS §§ 1533 et seq.,
no plaintiff may commence action without giving Secretary 60-days prior written notice of its intent to sue, 16 USCS §
1540(g)(2), and group failed to provide 60-days' notice prior to bringing its claims with respect to 12-month finding;
moreover, group's request for leave to amend complaint was denied because allowing group leave to amend its complaint after commencing action without proper notice would undermine Fed. R. Civ. P. 3 and render notice requirement
meaningless. Friends of Animals v Salazar (2009, DC Dist Col) 670 F Supp 2d 7.
12.----Birds
Economic analysis employed by U.S. Fish and Wildlife Services (FWS) in designating critical habitat of Mexican
Spotted Owl was not arbitrary and capricious; baseline approach that FWS used was, if anything, more logical than
co-extensive approach, and it reflected purpose set forth in 16 USCS § 1533(b)(2) to determine benefits of excluding or
including area in critical habitat designation; economic analysis of critical habitat designation was exactly what it
sounded like and was not intended to incorporate burdens imposed by listing species. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.
In designating critical habitat for Mexican Spotted Owl, U.S. Fish and Wildlife Services (FWS) permissibly rejected plaintiff cattle association's "resides in" interpretation as too narrow and acted within its authority to designate as
"occupied" areas that owl used with sufficient regularity that it was likely to be present during any reasonable span of
time; interpretation was sensible when considered in light of many factors that were relevant to factual determination of
occupancy, it was consistent with U.S. Supreme Court's decision in Amoco Production Co., it was supported by purpose
Page 61
16 USCS § 1533
of Endangered Species Act (ESA), and it promoted ESA's conservation goals and comported with ESA's policy of "institutionalized caution." Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929,
40 ELR 20154.
Critical habitat--including "occupied critical habitat"--is defined in relation to areas necessary for conservation of
species, not merely to ensure its survival under 16 USCS § 1532(5)(A), and limiting U.S. Fish and Wildlife Services to
designating habitat only where Mexican Spotted Owl "resided" focused too narrowly on owl survival and ignored
broader purpose of critical habitat designation. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160,
70 Envt Rep Cas 1929, 40 ELR 20154.
Process for designating critical habitat of Mexican Spotted Owl which U.S. Fish and Wildlife Services (FWS) utilized gave court strong foundation for its conclusion that agency did not arbitrarily and capriciously treat areas in which
owls were not found as "occupied"; FWS did not impermissibly change course in its final rule from its approach to prior
designations, amount of land designated was not disproportionate to number of owls, and inclusion of particular district
was not arbitrary and capricious; agency designated only "occupied" areas as critical habitat, even though it may not
have identified with certainty in all cases known owl constantly inhabiting that territory, and process that FWS used to
select habitat for designation, measures it took to exclude areas where owls were absent or use by owls was infrequent,
and its careful work to confirm presence of owls in designated areas demonstrated that FWS designated areas that correspond to habitat where owl was likely to be found--agency action was neither based on speculation nor counter to
evidence. Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154.
Fish and Wildlife Service's failure to designate critical habitat for northern spotted owl when it was listed as
threatened species was improper under 16 USCS § 1533, where service failed to indicate either why habitat was "indeterminable" or what efforts had been made to determine habitat, because Service abused its discretion in making "indeterminable" finding. Northern Spotted Owl v Lujan (1991, WD Wash) 758 F Supp 621, 33 Envt Rep Cas 1113, 21 ELR
20914.
Failure of Fish and Wildlife Service to comply with requirement of 16 USCS § 1533(a)(3)(D)(ii) that it rule on petition for revision of critical habitat within 12 months constituted "final agency action" subject to review under 5 USCS
§ 706, and, thus, Service was required to produce administrative record compiled with regard to critical habitat designation of Cape Sable seaside sparrow. Biodiversity Legal Found. v Norton (2001, DC Dist Col) 180 F Supp 2d 7.
Fish and Wildlife Service was entitled to deference in revising endangered seaside sparrow's critical habitat designation, but once it determined revision was necessary it was under obligation to take timely action in determining specific schedule and process. Biodiversity Legal Found. v Norton (2003, DC Dist Col) 285 F Supp 2d 1, 57 Envt Rep Cas
1916, motion gr, dismd (2004, App DC) 2004 US App LEXIS 9238.
Regardless of budgetary constraints, Secretary of Interior was ordered to comply with deadlines set by court regarding designation of critical habitat for Mexican spotted owl as required by 16 USCS § 1533(a)(3), part of Endangered Species Act, and Secretary's motion for relief under Fed. R. Civ. P. 60(b), which sought to modify court's compliance order, was denied. Ctr. for Biological Diversity v Norton (2003, DC Ariz) 304 F Supp 2d 1174.
13.----Fish
District court acted properly in granting company and U.S.' motion for summary judgment where it was determined
that based on plain language of Endangered Species Act and its amendments, Congress conferred discretion on Fish &
Wildlife Service to choose whether to designate critical habitat for endangered species listed before 1982, including
unarmored threespine stickleback. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2006, CA9 Cal)
450 F3d 930, 62 Envt Rep Cas 1873, 36 ELR 20102.
District court properly dismissed action filed under 16 USCS § 1540(g)(1)(C), part of Endangered Species Act
(ESA), 16 USCS §§ 1531 et seq., which was filed by environmental groups alleging that Secretary of Interior violated
nondiscretionary duty under 16 USCS § 1533(b)(6)(A), (C)(ii) to designate critical habitat for two threatened species of
minnows--Blue Shiner and Goldline Darter; suit was untimely under 28 USCS § 2401(a)'s six-year statute of limitations, and Secretary's failure to designate critical habitat did not constitute continuing violation of ESA. Ctr. for Biological Diversity v Hamilton (2006, CA11 Ga) 453 F3d 1331, 62 Envt Rep Cas 1641, 19 FLW Fed C 701 (criticized in Inst.
for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 66 Envt Rep Cas 1620) and (criticized in Sierra
Club v Johnson (2009, ND Cal) 69 Envt Rep Cas 1919, 39 ELR 20051).
Page 62
16 USCS § 1533
Although Fish and Wildlife Service violated 16 USCS § 1533(a)(3)(A) and (a)(b)(C)(ii) by failing to designate critical habitat of Alabama sturgeon within two years of listing species as endangered, appeals court refused to impose
remedy of de-listing species because it would have frustrated Congress' intent to preserve wildlife. Alabama-Tombigbee
Rivers Coalition v Kempthorne (2007, CA11 Ala) 477 F3d 1250, 63 Envt Rep Cas 2098, 37 ELR 20040, 20 FLW Fed C
293, cert den (2008) 552 US 1097, 128 S Ct 877, 169 L Ed 2d 725, 66 Envt Rep Cas 1416.
Non-profit environmental organizations that sued governmental officials for their failure to designate critical habitat for two endangered minnow species did not establish continuing violation that enabled them to file suit after statute
of limitations expired; Endangered Species Act afforded officials no additional time beyond April 22, 1993 to designate
critical habitat for minnows and imposed no continuing duty on officials regarding such designation; continuing violation doctrine does not save time-barred violations that cause continuing or lingering harm, and plaintiffs had remedy
under 16 USCS § 1532(5) under existing conditions. Ctr. for Biological Diversity v Hamilton (2005, ND Ga) 385 F
Supp 2d 1330.
Biological opinion (BiOp) of United States National Marine Fisheries Service (NMFS) regarding spring-run Chinook was incomplete, contradictory, and violated Endangered Species Act and Administrative Procedures Act because
it had (1) failed to define and consider effects on spring-run critical habitat as required by 16 USCS § 1533, important
aspect of no jeopardy 16 USCS § 1536 BiOp; (2) failed to explain why no jeopardy findings are contradicted by record
evidence developed by agency; and (3) failed to adequately analyze recovery of spring-run. Pac. Coast Fed'n of Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US Dist LEXIS 31462, amd on other grounds, summary judgment gr, in
part, summary judgment den, in part on other grounds (2008, ED Cal) 67 Envt Rep Cas 1674, amd on other grounds,
summary judgment gr, in part, summary judgment den, in part on other grounds (2008, ED Cal) 606 F Supp 2d 1122,
findings of fact/conclusions of law, request den (2008, ED Cal) 606 F Supp 2d 1195, 68 Envt Rep Cas 1234.
14.----Mammals
Defendants, Secretary of Interior and U.S. Fish and Wildlife Service, violated 16 USCS § 1533(b)(6)(C) by failing
to designate critical habitat for lynx within one year of final decision that lynx was threatened species; it was appropriate to enjoin defendants to do so because they had asserted that it would be at least four years before lynx critical habitat
would be designated; six and one-half year delay in designating critical habitat was completely counter to mandate of 16
USCS § 1531(b). Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89
Fed Appx 273.
Under Endangered Species Act, 16 USCS §§ 1533 et seq., and National Environmental Policy Act, 42 USCS §§
4321 et seq., federal agencies were able to make road management decisions based on study of grizzly bears, despite
fact that they ignored question of whether there was minimum useful core habitat size for study, because study was best
available information even though it was not best conceivable scientific information. Cabinet Res. Group v United
States Fish & Wildlife Serv. (2006, DC Mont) 465 F Supp 2d 1067.
Because defendant Secretary of Department of Interior proposed Louisiana Black Bear's critical habitat several
times for decade without ever making final habitat listing or "not prudent" determination, his only two options under 16
USCS § 1533, plaintiff environmentalist's suit to compel action was not time barred by 28 USCS § 2401(a)'s six year
limitations period. Schoeffler v Kempthorne (2007, WD La) 493 F Supp 2d 805 (criticized in Inst. for Wildlife Prot. v
United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).
Property owners and civic organization had not demonstrated that United States Fish and Wildlife Service's (FWS)
designation of land units 2, unit 4 as critical habitats was arbitrary and capricious because FWS explained in its final
rule that both units were essential for conservation of beach mouse within meaning of 16 USCS § 1532(5)(A)(i) because
they connected adjacent habitat units and because they provided habitat needed for storm refuge, expansion, natural
movements, and re-colonization; moreover, pursuant to 16 USCS § 1533(b)(2), reviewers, five individuals with scientific expertise that included familiarity with species, geographic region in which species occurred, and conservation
biology principles, concurred generally with FWS's methods as well as its conclusions; further, baseline approach
commonly resulted in finding under 16 USCS § 1536(a)(2) that no incremental economic impacts were attributable to
habitat designation and property owners and organization fell far short of demonstrating that FWS's failure to quantify
delay and permitting costs was arbitrary and capricious. Fisher v Salazar (2009, ND Fla) 656 F Supp 2d 1357.
15.----Plants
In connection with proposed construction of deep draft harbor for commercial and industrial use, Secretary did not
violate 16 USCS § 1533 by failing to designate critical habitat for species of plant found in area near proposed location
Page 63
16 USCS § 1533
for harbor, subsequent to plant's listing as endangered species, since Secretary properly determined that plant's critical
habitat could not be determined, in that plant had been found in non-native habitat, and biological and physical features
essential to its existence could not be known. Enos v Marsh (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep Cas
1124, 15 ELR 20853.
Case concerning 245 endangered or threatened plant species in Hawaii is remanded, where Fish and Wildlife Service (FWS) failed to articulate rational basis for invoking imprudence exception and not designating critical habitats for
plants, because, inter alia, FWS failed to compare risk of increased likelihood that vandals would destroy or take remaining plants with benefits that would flow from designation of critical habitats. Conservation Council v Babbitt
(1998, DC Hawaii) 2 F Supp 2d 1280 (criticized in Sierra Club v United States Fish & Wildlife Serv. (2001, CA5 La)
245 F3d 434, 52 Envt Rep Cas 1464, 31 ELR 20504).
16.----Other particular species
Because links between species loss and substantial commercial effect were not attenuated under Endangered Species Act (ESA), economic regulatory scheme, taking of Texas cave species were aggregated with other takes, and ESA's
take provision was constitutional under Commerce Clause. GDF Realty Invs., Ltd. v Norton (2003, CA5 Tex) 326 F3d
622, 56 Envt Rep Cas 1033, reh den, reh, en banc, den (2004, CA5 Tex) 362 F3d 286, 58 Envt Rep Cas 1187 and cert
den (2005) 545 US 1114, 125 S Ct 2898, 162 L Ed 2d 294, 60 Envt Rep Cas 1512.
Industry groups, in context of their challenge to designation by U.S. Fish and Wildlife Service (FWS) of about
850,000 acres of land as critical habitat for 15 endangered or threatened vernal pool species, contended that FWS failed
to properly account for economic impact of its critical habitat designation, pursuant to 16 USCS § 1533(b)(2); to fulfill
that requirement, FWS obtained economic analysis from outside consultant that relied on guidance from Office of
Management and Budget to compare current state of affairs--baseline--with how things would look after designation of
critical habitat; this approach was consistent with statutory directive to consider economic impact to specifying any particular area as critical habitat--i.e., requirement designed to protect environment, imposed before government took action. Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep
Cas 1464, 40 ELR 20210.
Industry groups challenged designation by U.S. Fish and Wildlife Service (FWS) of about 850,000 acres of land as
critical habitat for 15 endangered or threatened vernal pool species on basis of what industry groups believed were areas
that were designated as critical habitat despite containing no primary constituent elements; yet industry groups, other
than complaining that FWS's designation was not sufficiently specific, offered no alternative procedure and pointed to
no infirmity in procedure used by FWS except that it might not be perfect; specificity did not require perfection; rather,
16 USCS § 1533(b)(2) required only that FWS designate critical habitat on basis of best scientific data available, and
industry groups presented no reason not to defer to FWS on this issue. Home Builders Ass'n of N. Cal. v United States
Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210.
Court of appeals affirmed district court's judgment that it lacked jurisdiction under Administrative Procedure Act, 5
USCS §§ 701 et seq., to hear lawsuit that was filed by nonprofit advocacy group that represented individuals and companies in construction industry, challenging protocols that Fish and Wildlife Service issued to provide methodology for
detection of quino checkerspot butterfly in certain areas of southern California, because protocols were not binding
agency actions. Nat'l Ass'n of Home Builders v Norton (2005, App DC) 367 US App DC 240, 415 F3d 8, 60 Envt Rep
Cas 2121, 35 ELR 20143.
Asserted reason for Fish and Wildlife Service's refusal to designate critical habitat for endangered species was unsupported by record, where Service declined to designate critical habitat for fairy shrimp species on basis of fear of
vandalism, and although number of incidents of destruction of habitat were documented in administrative record, only
one involved vandalism, and in view of strong presumption that critical habitat would be designated concurrently with
listing of species, mere fact of habitat destruction did not in itself militate against designating critical habitat. Building
Indus. Ass'n v Babbitt (1997, DC Dist Col) 979 F Supp 893, app dismd (1998, App DC) 333 US App DC 190, 161 F3d
740, 47 Envt Rep Cas 1701, 42 FR Serv 3d 114, 29 ELR 20328 and affd (2001, App DC) 345 US App DC 426, 247 F3d
1241, 52 Envt Rep Cas 1257, 31 ELR 20622, cert den, motion gr (2002) 534 US 1108, 151 L Ed 2d 879, 122 S Ct 913,
54 Envt Rep Cas 1544.
Voluntary remand to U.S. Fish and Wildlife Service (USFWS) of its critical habitat designations of two endangered
species was proper where court had authority to grant voluntary remand, and designations were arbitrary and capricious
Page 64
16 USCS § 1533
under 5 USCS § 706(2) because baseline approach to economic impact analysis under 16 USCS § 1533(b)(2) used by
USFWS was invalid. NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.
During voluntary remand to U.S. Fish and Wildlife Service (USFWS) of its critical habitat designations of two endangered species, 16 USCS §§ 1538 and 1539, California Natural Communities Conservation Programs, and special
rule under 16 USCS § 1533(d) did not replace consultation for adverse modification under 16 USCS § 1536 by USFWS.
NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.
Federal agencies did not show that transfer to California district court of landowners' action, which challenged designation of their California property as critical habitat for San Diego fairy shrimp, was appropriate for convenience or
fairness because landowners' choice of forum in District of Columbia (D.C.) was not outweighed by location of property in San Diego County, which was wholly subsumed by Southern District of California, pursuant to 28 USCS § 84(d);
rather, nexus between controversy and California, where property and landowners were located, was only marginally
stronger than connection between controversy and D.C. because controversy involved issue of federal environmental
law under Endangered Species Act, which was subject to judicial review under Administrative Procedure Act, 5 USCS
§§ 702 et seq., and was enacted to ensure conservation of endangered and threatened species and their ecosystems; and
involved private property that was not accessible by public, and would have no direct or unique impact on San Diego
County residents or their water supply. Otay Mesa Prop., L.P. v United States DOI (2008, DC Dist Col) 584 F Supp 2d
122, summary judgment den, summary judgment den, as moot, summary judgment gr (2010, DC Dist Col) 714 F Supp
2d 73.
17.--Permission of hunting
Secretary of Interior did not exceed delegated authority by promulgating regulations permitting limited sport hunting of grizzly bears in specified geographic areas, since Congress, in Endangered Species Act (16 USCS §§ 1531 et
seq.), expressly authorized "regulated taking" of threatened species in extraordinary case where population pressures
within given ecosystem cannot be otherwise relieved. Christy v Hodel (1988, CA9 Mont) 857 F2d 1324, 18 ELR
21430, cert den (1989) 490 US 1114, 104 L Ed 2d 1038, 109 S Ct 3176.
In organizations' suit against federal entities regarding failure to list Mongolian argali sheep as endangered, and issuance of hundreds of permits for sport hunters to import killed argali, Mongolian agency satisfied requirements for
intervention as of right. Fund for Animals, Inc. v Norton (2003, App DC) 355 US App DC 268, 322 F3d 728, 55 Envt
Rep Cas 2128, 55 FR Serv 3d 414, costs/fees proceeding, request gr (2003, App DC) 2003 US App LEXIS 18340, motion gr, dismd (2004, App DC) 2004 US App LEXIS 14244 and (criticized in San Juan County v United States (2005,
CA10 Utah) 420 F3d 1197, 62 FR Serv 3d 703).
Pursuant to 16 USCS § 1533(b)(1)(A), National Marine Fisheries Service had based its decision to close pelagic
longline fishermen's access to fisheries in particular area on best scientific data available where evidence showed that
agency had considered and disagreed with conclusions found in critical peer review and decision to base mortality estimates for listed turtle species on mortality rates from ingesting longliner's hooks and from external hooking was not
unreasonable. Blue Water Fishermen's Ass'n v Nat'l Marine Fisheries Serv. (2002, DC Mass) 226 F Supp 2d 330.
18. Practice and procedure
Initial determination of whether species is endangered is within Secretary's exclusive authority, and ALJ does not
have authority to review this finding. Roosevelt Campobello International Park Com. v United States EPA (1982,
CA1) 684 F2d 1041, 17 Envt Rep Cas 2023, 12 ELR 20903.
16 USCS § 1533(b)(3)(B) places limit on discretion provided by 16 USCS § 1533(b)(3)(A), since Congress intended
to limit flexible deadline governing initial listing determination by enacting firm deadline for making final determination; thus, both initial finding and final determination must be completed within twelve months of date petition is received. Biodiversity Legal Found. v Badgley (2002, CA9 Or) 284 F3d 1046, 2002 CDOS 2553, 2002 Daily Journal
DAR 3129, 54 Envt Rep Cas 1065, 32 ELR 20539, op withdrawn by order of ct on other grounds(2002, CA9 Or) 309
F3d 1166, 33 ELR 20092 and substituted op (2002, CA9 Or) 309 F3d 1166, 2002 CDOS 10902, 2002 Daily Journal
DAR 12632.
16 USCS § 1533 (b)(3)(B) imposes firm twelve-month deadline for making final determinations under Endangered
Species Act; if final determination must be made within twelve months, only logical conclusion is that initial one must
be made within that time as well; Congress intended to limit flexible deadline governing initial listing determination by
Page 65
16 USCS § 1533
enacting firm deadline for making final determination; both determinations must be made within one year. Biodiversity
Legal Found. v Badgley (2002, CA9 Or) 309 F3d 1166.
Determination by Fish and Wildlife Service to place species on its internal review list, to assign it candidate status,
and to thus declare that public petition filed on behalf of species under 16 USCS § 1533(b)(3)(A) was thus "redundant"
illegally circumvented notice and hearing requirements set forth in § 1533(b)(3)(B), and precluded judicial review, thus
violating notice and hearing requirements of Endangered Species Act, 16 USCS §§ 1531 et seq. Am. Lands Alliance v
Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137, reconsideration gr, vacated, in part on other grounds
(2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist Col) 2004 US Dist LEXIS 27533, dismd on other
grounds (2004, App DC) 2004 US App LEXIS 15243.
Endangered Species Petition Management Guidance policy that was used by Fish and Wildlife Service (FWS) for
determining categorizations of species as threatened or endangered violated notice and comment requirement embodied
in 16 USCS § 1533(h), was procedurally flawed, and was facially invalid because it allowed FWS and Secretary of Department of Interior to avoid mandatory, non-discretionary hearing requirements set forth in 16 USCS § 1533(b)(3)(B).
Am. Lands Alliance v Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137, reconsideration gr, vacated, in part
on other grounds (2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist Col) 2004 US Dist LEXIS 27533,
dismd on other grounds (2004, App DC) 2004 US App LEXIS 15243.
Eleventh Circuit has held that district court should dismiss claims when there has been no final agency action and
Supreme Court has held that in order to be final agency action two conditions must be met: (1) action must mark consummation of agency's decision making process and (2) action must be one by which either rights or obligations have
been determined or legal consequences will flow; biological opinions rendered by Fish and Wildlife Service pursuant to
Endangered Species Act are "final agency action" under Administrative Procedures Act and subject to review. Fla. Marine Contrs. v Williams (2004, MD Fla) 17 FLW Fed D 706, motion gr, summary judgment den, judgment entered
(2005, MD Fla) 378 F Supp 2d 1353, 18 FLW Fed D 785.
District court dismissed claims for declaratory relief asserted by various applicants who had sought permits to construct structures on Florida waterways because Fish and Wildlife Service (FWS) had not yet rendered biological opinions with regard to applications, FWS would not take any final action until it rendered opinions, and court did not have
jurisdiction to review non-final actions taken by agency; once they were rendered, applicants could file second amended
complaint seeking review of biological opinions under Administrative Procedure Act Fla. Marine Contrs. v Williams
(2004, MD Fla) 17 FLW Fed D 706, motion gr, summary judgment den, judgment entered (2005, MD Fla) 378 F Supp
2d 1353, 18 FLW Fed D 785.
U.S. Fish & Wildlife Service's (FWS's) 1996 Petition Management Guidance policy, upon which FWS relied in
finding no substantial evidence to support allegation in 90-day petition filed by interested persons that cutthroat trout,
indigenous to Upper Colorado River basin, was threatened or endangered species, was inconsistent with public notice
and comment procedures in 16 USCS § 1533(h) and was facially invalid; thus, FWS's reliance upon that policy in deciding merits of 90-day petition was flawed and not entitled to judicial deference. Colo. River Cutthroat Trout v
Kempthorne (2006, DC Dist Col) 448 F Supp 2d 170, 63 Envt Rep Cas 1771.
District court lacked subject matter jurisdiction over landowner's citizen suit, which alleged that National Marine
Fisheries Service (NMFS) acted contrary to procedural provisions of 16 USCS § 1533 in violation of 5 USCS § 706
when NMFS declined to review his petition to redefine southern boundary of California Central Coast evolutionarily-significant unit of coho salmon; landowner failed to give 60-day notice required under 16 USCS § 1540(g)(2)(C), and
APA could not provide jurisdiction under 5 USCS § 704 because Congress provided another adequate remedy under
ESA. McCrary v Gutierrez (2007, ND Cal) 528 F Supp 2d 995.
Environmental group was not required to give U.S. Fish and Wildlife Service (FWS) 60-day notice required by 16
USCS § 1540(g)(2)(C, before bringing suit that challenged FWS's decision to reject petitions to list greater sage-grouse
under 16 USCS § 1533; ESA notice requirement did not apply because group's suit was brought under Administrative
Procedure Act, 5 USCS §§ 701 et seq., to review discretionary decision of FWS. Western Watersheds Project v United
States Forest Serv. (2007, DC Idaho) 535 F Supp 2d 1173, 66 Envt Rep Cas 1693.
In 16 USCS § 1540(g) citizen suit wherein plaintiffs were seeking 16 USCS § 1533 endangered species listing for
Gunnison sage-grouse under Endangered Species Act (ESA), 16 USCS §§ 1531-1544, two stipulated documents from
prior case should have been included in agency record on appeal; twenty-eight remaining documents provided on Freedom of Information Act (FOIA), 5 USCS § 552, request consisted of maps showing species' limited range, proposals for
Page 66
16 USCS § 1533
critical habitat which hinged on listing, and listing drafts with accompanying public outreach materials; documents were
adverse to agency's final determination and defendant Fish and Wildlife Service acknowledged that they represented all
public documents considered in decision-making process; thus court found that they should have been provided as part
of record. County of San Miguel v Kempthorne (2008, DC Dist Col) 587 F Supp 2d 64.
Even where need for 12-month finding remained speculative when intent to sue submitted on January 13, 2009, organizations and individuals' failure to provide 60 days' notice prior to bringing its claims with respect to 12-month finding meant those claims had to be dismissed; moreover, because organizations and individuals intent to sue letter did not
notify Secretary of Department of Interior that they intended to challenge his subsequent failure to issue 12-month finding, it would have been unfair to permit this claim to proceed; therefore, court dismissed organizations and individuals'
claim that Secretary's failure to issue 12-month finding violated 16 USCS § 1533. Conservation Force v Salazar (2010,
DC Dist Col) 715 F Supp 2d 99.
19.--Standing
Parties challenging federal agency's biological opinion imposing lake-level restrictions to protect endangered species held to have standing under zone of interests test to bring §§ 1533 and 1536 claims under Endangered Species Act,
and § 1536 claim under Administrative Procedure Act. Bennett v Spear (1997) 520 US 154, 137 L Ed 2d 281, 117 S Ct
1154, 97 CDOS 2000, 97 Daily Journal DAR 3647, 44 Envt Rep Cas 1161, 27 ELR 20824, 10 FLW Fed S 354, on remand, remanded (1997, CA9) 112 F3d 402, 97 CDOS 2932, 97 Daily Journal DAR 5164, summary judgment gr, summary judgment den, in part sub nom Bennett v Spear (1998, DC Or) 5 F Supp 2d 882.
Commercial wildlife photographer had legitimate interest in intervening in litigation brought by citizens group
challenging Department of Interior's designation of Mexican Spotted Owl as endangered species where he had persistent record of advocacy for owl's protection. Coalition of Arizona/New Mexico Counties for Stable Economic Growth v
DOI (1996, CA10 NM) 100 F3d 837, 36 FR Serv 3d 619, 27 ELR 20437 (criticized in San Juan County v United States
(2007, CA10 Utah) 503 F3d 1163, 68 FR Serv 3d 1661, 37 ELR 20254).
Environmental groups have standing to bring action which seeks declaratory and injunctive relief requiring Fish
and Wildlife Service to define critical habitat of razorback sucker fish (already classified as endangered species for
more than two years). Colorado Wildlife Fed'n v Turner (1992, DC Colo) 36 Envt Rep Cas 1409, 23 ELR 20402.
With respect to monitoring activities that are required under 16 USCS § 1533(b)(3)(C)(iii), part of Endangered
Species Act (ESA), word "shall" of course connotes statutory command, but word "effectively" renders discretionary
details of how command is executed; ESA's citizen suit provisions, 16 USCS § 1540(g)(1)(C), are therefore inapplicable
to monitoring activities under § 1533(b)(3)(C)(iii). Cal. Native Plant Soc'y v Norton (2005, DC Dist Col) 60 Envt Rep
Cas 1119, dismd (2005, App DC) 2005 US App LEXIS 15621.
Environmental groups' members had aesthetic and recreational interest in observing gray wolf because members
were involved in activities in and around gray wolf's habitat and devoted substantial amounts of time in support of wolf
recovery and in pursuit of wolf throughout Northeast; in addition, groups' declarants participated in administrative process at issue and final rule issued by Fish and Wildlife Service to reclassify and remove gray wolf from list of endangered and threatened wildlife in portions of conterminous U.S. was traceable to groups' injuries; therefore, groups had
standing. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for
Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).
In case in which intervenor-applicants, cattleman's association and two organizations, (1) satisfied requirements for
Article III standing because they demonstrated that would sustain direct injury if county and conservation groups obtained any of their requested relief; (2) established interest relating to designation of Gunnison sage-grouse as threatened or endangered by virtue of establishing constitutional standing; (3) showed that disposition of case could, as practical matter impair or impede intervenors' ability to protect their interest; and (4) demonstrated that their interests were
not adequately represented by existing parties, their Fed. R. Civ. P. 24(a) motion to intervene as matter of right was
granted. County of San Miguel v MacDonald (2007, DC Dist Col) 244 FRD 36, 68 FR Serv 3d 1434.
20.--Standard of review
Standard of review to be used in action challenging decision of National Forest Service to permit commencement
of operation which could have detrimental effect on endangered species is "arbitrary and capricious" standard set forth
in Administrative Procedure Act (5 USCS §§ 701 et seq.). Cabinet Mountains Wilderness v Peterson (1981, DC Dist
Page 67
16 USCS § 1533
Col) 510 F Supp 1186, 15 Envt Rep Cas 2081, 11 ELR 20812, affd (1982, App DC) 222 US App DC 228, 685 F2d 678,
17 Envt Rep Cas 1844, 12 ELR 21058.
"Arbitrary or capricious" standard of judicial review provisions of Administrative Procedure Act, 5 USCS § 706,
applies in citizen suit to actions taken pursuant to Endangered Species Act (16 USCS §§ 1531 et seq.). National
Audubon Soc. v Hester (1986, DC Dist Col) 627 F Supp 1419, 16 ELR 20445, revd without op (1986, App DC) 791 F2d
210 and revd on other grounds (1986, App DC) 16 ELR 20940.
Lawsuit brought by environmental group that challenged procedure used by Secretary of Department of Interior
and Fish and Wildlife Service to circumvent notice and hearing procedure set forth in 16 USCS § 1533(b)(3), part of
Endangered Species Act, 16 USCS § 1531 et seq, was citizens' suit brought pursuant to 16 USCS § 1540 and scope of
review by court was standard of review set forth for agency action in 5 USCS § 706 (2) (A), part of Administrative Procedure Act, 5 USCS §§ 701 to 706. Am. Lands Alliance v Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137,
reconsideration gr, vacated, in part on other grounds (2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist
Col) 2004 US Dist LEXIS 27533, dismd on other grounds (2004, App DC) 2004 US App LEXIS 15243.
Secretary of Department of Interior's decision to proceed with three recovery plans for gray wolf rather than one
comprehensive national plan was afforded Chevron deference. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp
2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d
1271).
21. Miscellaneous
Where Forest Service made initial determination that site of salvage timber sale would have no effect on Mexican
spotted owl, there was no need for formal consultation under Endangered Species Act. Southwest Ctr. for Biological
Diversity v United States Forest Serv. (1996, CA9 Ariz) 100 F3d 1443, 96 CDOS 8308, 96 Daily Journal DAR 13823,
43 Envt Rep Cas 2077, 27 ELR 20455 (criticized in Rhodes v Johnson (1998, CA7 Ill) 153 F3d 785, 47 Envt Rep Cas
1344, 29 ELR 20092) and (criticized in Heartwood, Inc. v United States Forest Serv. (2001, WD Mich) 2001 US Dist
LEXIS 20602).
16 USCS § 1533(b)(3)(B) places limit on discretion provided by 16 USCS § 1533(b)(3)(A), since Congress intended
to limit flexible deadline governing initial listing determination by enacting firm deadline for making final determination; thus, both initial finding and final determination must be completed within twelve months of date petition is received. Biodiversity Legal Found. v Badgley (2002, CA9 Or) 284 F3d 1046, 2002 CDOS 2553, 2002 Daily Journal
DAR 3129, 54 Envt Rep Cas 1065, 32 ELR 20539, op withdrawn by order of ct (2002, CA9 Or) 309 F3d 1166, 33 ELR
20092 and substituted op (2002, CA9 Or) 309 F3d 1166, 2002 CDOS 10902, 2002 Daily Journal DAR 12632.
Hybrids of two protected subspecies (e.g., protected tiger subspecies) are protected under Endangered Species Act,
16 USCS §§ 1531 et seq. United States v Kapp (2005, CA7 Ill) 419 F3d 666, 61 Envt Rep Cas 1020, 67 Fed Rules Evid
Serv 1330.
Evidence was sufficient to prove that defendant violated Endangered Species Act, 16 USCS §§ 1531 et seq., by
trafficking in and killing tigers and leopards, as expert testimony and defendant's own statements established that animals were tigers and leopards, not non-protected tiger-lion hybrids. United States v Kapp (2005, CA7 Ill) 419 F3d 666,
61 Envt Rep Cas 1020, 67 Fed Rules Evid Serv 1330.
County agencies and water districts' argument that United States Fish and Wildlife Service failed to utilize data
from three studies in reaching its listing decision, and therefore, violated requirement under Endangered Species Act, 16
USCS §§ 1531 et seq., to base its determination on best scientific and commercial data available under 16 USCS §
1533(b)(1)(A) was without merit where agencies and districts pointed to no data that was omitted from consideration.
Kern County Farm Bureau v Allen (2006, CA9 Cal) 450 F3d 1072, 62 Envt Rep Cas 1865, 36 ELR 20117.
Interior Department is given only slight extension of time to complete final designation of critical habitat for marbled murrelet, despite legislative rider rescinding funds for critical habitat determinations, where official explanation
merely relied on need for funding other projects and additional review made necessary by new state regulatory information, because Department does not convince court that duty to designate critical habitat under 16 USCS §
1533(b)(6)(C) has been temporarily repealed or that inadequate funding has made designation impracticable. Marbled
Murrelet v Babbitt (1996, WD Wash) 918 F Supp 318, 42 Envt Rep Cas 1647, 26 ELR 20990.
Page 68
16 USCS § 1533
Federal agency's failure to conduct formal consultation under § 7 of Endangered Species Act (ESA), 16 USCS §
1536, of promulgation of rule as to salmon take under § 4(d) of ESA, at general, preliminary level, was not arbitrary and
capricious. Wash. Envtl. Council v Nat'l Marine Fisheries Serv. (2002, WD Wash) 32 ELR 20570.
To deny listing of species simply because one scientific field has not caught up with knowledge in other fields does
not give benefit of doubt to species and fails to meet best available science requirement. Ctr. for Biological Diversity v
Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340, vacated on other grounds, remanded (2007, CA9
Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op withdrawn on other grounds (2007, CA9 Wash)
511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676, 38 ELR 20001.
U.S. Fish and Wildlife Service's initial finding--that emergency listing was not warranted under 16 USCS §
1533(b)(7)--was not reviewable under 16 USCS § 1540(g)(1) because nothing in 16 USCS § 1533(b)(7) indicated that
option of emergency listing was non-discretionary with U.S. Secretary of Interior. Inst. for Wildlife Prot. v Norton
(2003, WD Wash) 303 F Supp 2d 1175.
Court did not have jurisdiction under 5 USCS § 706(2) to review action filed by plaintiffs, state and coalition, that
defendants, Secretary of Department of Interior and Director of Fish and Wildlife Services, violated Endangered Species Act (ESA) and Administrative Procedures Act by rejecting state's gray wolf management plan under Wyo. Stat.
Ann. § 23-1-304 because plaintiffs failed to establish that defendants had mandatory duty to delist gray wolf, or lacked
discretion as to management of wolf depredations; therefore, court could not review claims that defendants violated
ESA by failing to use best science available. Wyoming v United States DOI (2005, DC Wyo) 360 F Supp 2d 1214, 60
Envt Rep Cas 1189, affd, in part (2006, CA10 Wyo) 442 F3d 1262, 62 Envt Rep Cas 1137, 36 ELR 20067 and (criticized in Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330).
Where environmental groups contended that U.S. Fish and Wildlife Service (FWS) violated its own regulation by
failing to reinitiate consultation pursuant to Endangered Species Act, 16 USCS §§ 1531-1544, § 7, 16 USCS § 1536, on
city's incidental take permit (ITP) once FWS completed recovery plan for vernal pool species, federal district court was
troubled that FWS, pursuant to 16 USCS § 1533, was significantly behind schedule regarding completion of recovery
plans; accordingly, during reinitiation process that was subsequently ordered, FWS was to consider standards and other
information in its vernal pool recovery plan to evaluate effect of city's ITP on vernal pool species and whether mitigation was adequate. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070, injunction gr,
summary judgment gr, in part, summary judgment den, in part on other grounds, remanded (2006, SD Cal) 470 F Supp
2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31,
66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011 US App LEXIS 950.
Plaintiff builders association's claim that defendant officials of U.S. Fish and Wildlife Service and Department of
Interior failed to conduct 16 USCS § 1533's mandatory Environmental Species Act reviews was reviewable under 5
USCS § 704 as inaction made reviewable by statute because 16 USCS § 1540(g)(1)(C) explicitly provided private right
of action to compel nondiscretionary duties. Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330.
Because under 16 USCS § 1539(a)(2)(A), (B), incidental take permit (ITP) applicants were only required to minimize and mitigate impact on species "to maximum extent possible" and were only required not to reduce likelihood of
survival and recovery of species, ITPs could be granted even if doing so threatened recovery of listed species, and to
extent that there was conflict between general definition of "conservation" under 16 USCS § 1523(3) or survival under
16 USCS § 1533(f)(1), and specific criteria in 16 USCS § 1539(a)(2)(B), specific statutory language controlled and
challenge by plaintiff Native American and environmental organizations against defendants, Secretaries of Departments
of Interior and Commerce, to No Surprises Rule and Permit Revocation Rule, 50 C.F.R. § 17.22(b), 17.32(b), failed.
Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235.
It was inferable from references in forest plan that recovery plans, 16 USCS § 1533(f), had significant substance
and required counts of species, creation of favorable habitat when necessary and appropriate, and specific monitoring
measures; original version of mitigation measure specifically recognized that recovery plans had been established for
threatened and endangered species believed to exist or which may exist in forest at issue and forest plan also stated
where these species occurred, their range and habitat requirements, and gave numerical population estimates for those
within forest. Sierra Club v United States Forest Serv. (2008, ND Ga) 535 F Supp 2d 1268, judgment entered, injunction gr (2008, ND Ga) 593 F Supp 2d 1306.
Environmental groups were entitled to preliminary injunction, reinstating protections under Endangered Species
Act, 16 USCS §§ 1531 et seq., for northern Rocky Mountain gray wolf, because they were likely to succeed on their
Page 69
16 USCS § 1533
claim that government acted arbitrarily in delisting wolf despite lack of evidence of genetic exchange between subpopulations, and their claim that government acted arbitrarily and capriciously when it approved Wyoming's 2007 plan despite state's failure to commit to managing for 15 breeding pairs and plan's malleable trophy game area, and because
groups had shown significant possibility of irreparable injury. Defenders of Wildlife v Hall (2008, DC Mont) 565 F
Supp 2d 1160, 68 Envt Rep Cas 1146, subsequent app, summary judgment gr, in part, summary judgment den, in part
(2010, DC Mont) 729 F Supp 2d 1207, 40 ELR 20219 and (Abrogated in part as stated in Modesto Irrigation Dist. v
Gutierrez (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226).
Unpublished Opinions
Unpublished: No judicial action was warranted with respect to plaintiffs' first claim for relief, which alleged that
Secretary of Department of Interiors' delay in issuing 90-day finding violated Endangered Species Act and Administrative Procedure Act, because plaintiffs had not made showing of prejudice resulting from Secretary's allegedly tardy
90-day finding, and even if Secretary were to have made positive 90-day finding within 90 days after plaintiffs filed its
petition, Secretary would have been under no obligation to act again until deadline for 12-month finding. Inst. for Wildlife Prot. v Norton (2005, CA9 Wash) 149 Fed Appx 627.
4 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 § 1534
§ 1534. Land acquisition
(a) Implementation of conservation program; authorization of Secretary and Secretary of Agriculture. The Secretary,
and the Secretary of Agriculture with respect to the National Forest System, shall establish and implement a program to
conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species pursuant
to section 4 of this Act [16 USCS § 1533]. To carry out such a program, the appropriate Secretary-(1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956, as amended, the
Fish and Wildlife Coordination Act, as amended [16 USCS §§ 661 et seq.], and the Migratory Bird Conservation Act, as
appropriate; and
(2) is authorized to acquire by purchase, donation, or otherwise, lands, waters, or interest therein, and such authority
shall be in addition to any other land acquisition authority vested in him.
(b) Availability of funds for acquisition of lands, waters, etc. Funds made available pursuant to the Land and Water
Conservation Fund Act of 1965, as amended [16 USCS §§ 460l-4 et seq.], may be used for the purpose of acquiring
lands, waters, or interest therein under subsection (a) of this section.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 5, 87 Stat. 889; Nov. 10, 1978, P.L. 95-632, § 12, 92 Stat. 3766.)
Page 70
16 USCS § 1534
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"The Fish and Wildlife Act of 1956, as amended", referred to in this section, is Act Aug. 8, 1956, ch 1036, 70 Stat.
119, which appears generally as 16 USCS §§ 742a et seq. For full classification of this Act, consult USCS Table volumes.
"The Migratory Bird Conservation Act", referred to in this section, is Act. Feb. 18, 1929, ch 257, 45 Stat. 1222,
which appears generally as 16 USCS §§ 715 et seq. For full classification of this Act, consult USCS Tables volumes.
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:
1978. Act Nov. 10, 1978, in subsec. (a), substituted "The Secretary, and the Secretary of Agriculture with respect to the
National Forest System, shall establish and implement a program to conserve fish, wildlife, and plants, including those
which are listed as endangered species or threatened species pursuant to section 4 of this Act. To carry out such a program, the appropriate Secretary--" for "The Secretary of the Interior shall establish and implement a program to conserve (A) fish or wildlife which are listed as endangered species or threatened species pursuant to section 4 of this Act;
or (B) plants which are concluded in Appendices to the Convention. To carry out such program, he--".
NOTES:
Related Statutes & Rules:
This section is referred to in 16 USCS §§ 460l-9, 460iii-4.
Research Guide:
Texts:
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.
Law Review Articles:
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
Arnold. Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use
development. 10 Stan Envtl L J 1, 1991.
Interpretive Notes and Decisions:
Page 71
16 USCS § 1534
City cannot prevent United States from accepting donation of land from private individual for wildlife refuge by
passing local resolution prohibiting such transfer except on its own terms, because Endangered Species Act (16 USCS
§§ 1531 et seq.), under which United States is accepting land, is program of national scope enacted to protect endangered wildlife, and purpose may not be frustrated by local ordinance. Sierra Club v Marsh (1988, SD Cal) 692 F Supp
1210, 19 ELR 20572.
5 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 § 1535
§ 1535. Cooperation with States
(a) Generally. In carrying out the program authorized by this Act, the Secretary shall cooperate to the maximum extent
practicable with the States. Such cooperation shall include consultation with the States concerned before acquiring any
land or water, or interest therein, for the purpose of conserving any endangered species or threatened species.
(b) Management agreements. The Secretary may enter into agreements with any State for the administration and management of any area established for the conservation of endangered species or threatened species. Any revenues derived
from the administration of such areas under these agreements shall be subject to the provisions of section 401 of the Act
of June 15, 1935 (49 Stat. 383; 16 U.S.C. 715) [16 USCS § 715s].
(c) Cooperative agreements.
(1) In furtherance of the purposes of this Act, the Secretary is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes and maintains an adequate and active program for the
conservation of endangered species and threatened species. Within one hundred and twenty days after the Secretary
receives a certified copy of such a proposed State program, he shall make a determination whether such program is in
accordance with this Act. Unless he determines, pursuant to this paragraph that the State program is not in accordance
with this Act, he shall enter into a cooperative agreement with the State for the purpose of assisting in implementation
of the State program. In order for a State program to be deemed an adequate and active program for the conservation of
endangered species and threatened species, the Secretary must find, and annually thereafter reconfirm such finding, that
under the State program-(A) authority resides in the State agency to conserve resident species of fish or wildlife determined by the State
agency or the Secretary to be endangered or threatened;
(B) the State agency has established acceptable conservation programs, consistent with the purposes and policies
of this Act, for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered or
threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data
requested to the Secretary;
Page 72
16 USCS § 1535
(C) the State agency is authorized to conduct investigations to determine the status and requirements for survival
of resident species of fish and wildlife;
(D) the State agency is authorized to establish programs, including the acquisition of land or aquatic habitat or
interests therein, for the conservation of resident endangered or threatened species of fish or wildlife; and
(E) provision is made for public participation in designating resident species of fish or wildlife as endangered or
threatened; or
that under the State program-(i) the requirements set forth in subparagraphs (C), (D), and (E) of this paragraph are complied with, and
(ii) plans are included under which immediate attention will be given to those resident species of fish and wildlife
which are determined by the Secretary or the State agency to be endangered or threatened and which the Secretary and
the State agency agree are most urgently in need of conservation programs; except that a cooperative agreement entered
into with a State whose program is deemed adequate and active pursuant to clause (i) and this clause shall not affect the
applicability of prohibitions set forth in or authorized pursuant to section 4(d) or section 9(a)(1) [16 USCS §§ 1533(d),
1538(a)(1)] with respect to the taking of any resident endangered or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes and maintains an adequate and active program for the
conservation of endangered species and threatened species of plants. Within one hundred and twenty days after the
Secretary receives a certified copy of such a proposed State program, he shall make a determination whether such program is in accordance with this Act. Unless he determines, pursuant to this paragraph, that the State program is not in
accordance with this Act, he shall enter into a cooperative agreement with the State for the purpose of assisting in implementation of the State program. In order for a State program to be deemed an adequate and active program for the
conservation of endangered species of plants and threatened species of plants, the Secretary must find, and annually
thereafter reconfirm such finding, that under the State program-(A) authority resides in the State agency to conserve resident species of plants determined by the State agency or
the Secretary to be endangered or threatened;
(B) the State agency has established acceptable conservation programs, consistent with the purposes and policies
of this Act, for all resident species of plants in the State which are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to determine the status and requirements for survival
of resident species of plants; and
(D) provision is made for public participation in designating resident species of plants as endangered or threatened; or
that under the State program-(i) the requirements set forth in subparagraphs (C) and (D) of this paragraph are complied with, and
(ii) plans are included under which immediate attention will be given to those resident species of plants which are
determined by the Secretary or the State agency to be endangered or threatened and which the Secretary and the State
agency agree are most urgently in need of conservation programs; except that a cooperative agreement entered into with
a State whose program is deemed adequate and active pursuant to clause (i) and this clause shall not affect the applicability of prohibitions set forth in or authorized pursuant to section 4(d) or section 9(a)(1) [16 USCS §§ 1533(d),
1538(a)(1)] with respect to the taking of any resident endangered or threatened species.
(d) Allocation of funds.
(1) The Secretary is authorized to provide financial assistance to any State, through its respective State agency,
which has entered into a cooperative agreement pursuant to subsection (c) of this section to assist in development of
programs for the conservation of endangered and threatened species or to assist in monitoring the status of candidate
species pursuant to subparagraph (C) of section 4(b)(3) [16 USCS § 1533(b)(3)(C)] and recovered species pursuant to
section 4(g) [16 USCS § 1533(g)]. The Secretary shall allocate each annual appropriation made in accordance with the
provisions of subsection (i) of this section to such States based on consideration of-(A) the international commitments of the United States to protect endangered species or threatened species;
(B) the readiness of a State to proceed with a conservation program consistent with the objectives and purposes of
this Act;
(C) the number of endangered species and threatened species within a State;
(D) the potential for restoring endangered species and threatened species within a State;
Page 73
16 USCS § 1535
(E) the relative urgency to initiate a program to restore and protect an endangered species or threatened species in
terms of survival of the species;
(F) the importance of monitoring the status of candidate species within a State to prevent a significant risk to the
well being of any such species; and
(G) the importance of monitoring the status of recovered species within a State to assure that such species do not
return to the point at which the measures provided pursuant to this Act are again necessary.
So much of the annual appropriation made in accordance with provisions of subsection (i) of this section allocated
for obligation to any State for any fiscal year as remains unobligated at the close thereof is authorized to be made available to that State until the close of the succeeding fiscal year. Any amount allocated to any State which is unobligated at
the end of the period during which it is available for expenditure is authorized to be made available for expenditure by
the Secretary in conducting programs under this section.
(2) Such cooperative agreements shall provide for (A) the actions to be taken by the Secretary and the States; (B) the
benefits that are expected to be derived in connection with the conservation of endangered or threatened species; (C) the
estimated cost of these actions; and (D) the share of such costs to be borne by the Federal Government and by the
States; except that-(i) the Federal share of such program costs shall not exceed 75 percent of the estimated program cost stated in the
agreement; and
(ii) the Federal share may be increased to 90 percent whenever two or more States having a common interest in
one or more endangered or threatened species, the conservation of which may be enhanced by cooperation of such
States, enter jointly into an agreement with the Secretary.
The Secretary may, in his discretion, and under such rules and regulations as he may prescribe, advance funds to the
State for financing the United States pro rata share agreed upon in the cooperative agreement. For the purposes of this
section, the non-Federal share may, in the discretion of the Secretary, be in the form of money or real property, the value of which will be determined by the Secretary, whose decision shall be final.
(e) Review of State programs. Any action taken by the Secretary under this section shall be subject to his periodic review at no greater than annual intervals.
(f) Conflicts between Federal and State laws. Any State law or regulation which applies with respect to the importation
or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent
that it may effectively (1) permit what is prohibited by this Act or by any regulation which implements this Act, or (2)
prohibit what is authorized pursuant to an exemption or permit provided for in this Act or in any regulation which implements this Act. This Act shall not otherwise be construed to void any State law or regulation which is intended to
conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any
State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive
than the exemptions or permits provided for in this Act or in any regulation which implements this Act but not less restrictive than the prohibitions so defined.
(g) Transition.
(1) For purposes of this subsection, the term "establishment period" means, with respect to any State, the period beginning on the date of enactment of this Act [enacted Dec. 28, 1973] and ending on whichever of the following dates
first occurs: (A) the date of the close of the 120-day period following the adjournment of the first regular session of the
legislature of such State which commences after such date of enactment [enacted Dec. 28, 1973], or (B) the date of the
close of the 15-month period following such date of enactment [enacted Dec. 28, 1973].
(2) The prohibitions set forth in or authorized pursuant to sections 4(d) and 9(a)(1)(B) of this Act [16 USCS §§
1533(d), 1538(a)(1)(B)] shall not apply with respect to the taking of any resident endangered species or threatened species (other than species listed in Appendix I to the Convention or otherwise specifically covered by any other treaty or
Federal law) within any state-(A) which is then a party to a cooperative agreement with the Secretary pursuant to section 6(c) of this Act [subsec (c) of this section] (except to the extent that the taking of any such species is contrary to the law of such State); or
(B) except for any time within the establishment period when-(i) the Secretary applies such prohibition to such species at the request of the State, or
(ii) the Secretary applies such prohibition after he finds, and publishes his finding, that an emergency exists
posing a significant risk to the well-being of such species and that the prohibition must be applied to protect such species. The Secretary's finding and publication may be made without regard to the public hearing or comment provisions
Page 74
16 USCS § 1535
of section 553 of title 5, United States Code [5 USCS § 553], or any other provision of this Act; but such prohibition
shall expire 90 days after the date of its imposition unless the Secretary further extends such prohibition by publishing
notice and a statement of justification of such extension.
(h) Regulations. The Secretary is authorized to promulgate such regulations as may be appropriate to carry out the
provisions of this section relating to financial assistance to States.
(i) Appropriations.
(1) To carry out the provisions of this section for fiscal years after September 30, 1988, there shall be deposited into
a special fund known as the cooperative endangered species conservation fund, to be administered by the Secretary, an
amount equal to 5 percent of the combined amounts covered each fiscal year into the Federal aid to wildlife restoration
fund under section 3 of the Act of September 2, 1937 [16 USCS § 669b], and paid, transferred, or otherwise credited
each fiscal year to the Sport Fishing Restoration Account established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to be appropriated annually and allocated in accordance
with subsection (d) of this section.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 6, 87 Stat. 889; Dec. 19, 1977, P.L. 95-212, § 1, 91 Stat. 1493; Nov. 10, 1978, P.L.
95-632, § 10, 92 Stat. 3762; May 23, 1980, P.L. 96-246, 94 Stat 348; Oct. 13, 1982, P.L. 97-304, §§ 3, 8(b), 96 Stat.
1416, 1426; Oct. 7, 1988, P.L. 100-478, Title I, § 1005, 102 Stat. 2307.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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.
"1016 of the Act of July 18, 1984", referred to in subsec. (i) of this section, is § 1016 of Act July 18, 1984, P.L.
98-369, 97 Stat. 1020, which, among other things, enacted 26 USCS § 9504, establishing the Sport Fish Restoration
Account.
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:
1977. Act Dec. 19, 1977, in subsec. (c)(5), substituted "; or" for a period, and inserted "that under the State program-"(A) the requirements set forth in paragraphs (3), (4), and (5) of this subsection are complied with, and
"(B) plans are included under which immediate attention will be given to those resident species of fish and wildlife which are determined by the Secretary or the State agency to be endangered or threatened and which the Secretary
and the State agency agree are most urgently in need of conservation programs; except that a cooperative agreement
entered into with a State whose program is deemed adequate and active pursuant to subparagraph (A) and this subparagraph shall not affect the applicability of prohibitions set forth in or authorized pursuant to section 4(d) or section
9(a)(1) with respect to the taking of any resident endangered or threatened species.".
Such Act further substituted subsec. (i) for one which read "For the purposes of this section, there is authorized to be
appropriated through the fiscal year ending June 30, 1977, not to exceed $ 10,000,000.".
Page 75
16 USCS § 1535
1978. Act Nov. 10, 1978, in subsec. (c), designated existing provisions as para. (1), in para. (1), as so redesignated, substituted "paragraph" for "subsection", redesignated paras. (1) to (5) as subparas. (A) to (E), respectively, redesignated
subparas. (A) and (B) as cls. (i) and (ii), respectively, in subpara. (D), as so redesignated, substituted "endangered or
threatened species of fish or wildlife" for "endangered species or threatened species", in cl. (i), as so redesignated, substituted "subparagraphs (C), (D), and (E) of this paragraph" for "paragraphs (3), (4), and (5) of this subsection", in cl.
(ii), as so redesignated, substituted "clause (i) and this clause" for "subparagraph (A) and this subparagraph", and added
para. (2).
1980. Act May 23, 1980, in subsec. (i), substituted para. (2) for one which read: "$ 16,000,000 for the period beginning
October 1, 1977, and ending September 30, 1981.", and added para. (3).
1982. Act Oct. 13, 1982, in subsec. (d)(2), in cl. (i), substituted "75 percent" for "66 2/3 per centum", and in cl. (ii), substituted "90 percent" for "75 per centum"; and deleted subsec. (i) which read:
"For the purposes of this section, there are authorized to be appropriated not to exceed the following sums:
"(1) $ 10,000,000 through the period ending September 30, 1977.
"(2) $ 12,000,000 for the period beginning October 1, 1977, and ending September 30, 1980.
"(3) $ 12,000,000 for the period beginning October 1, 1980, and ending September 30, 1982.".
1988. Act Oct. 7, 1988 substituted subsec. (d)(1) for one which read:
"The Secretary is authorized to provide financial assistance to any State, through its respective State agency,
which has entered into a cooperative agreement pursuant to subsection (c) of this section to assist in development of
programs for the conservation of endangered and threatened species. The Secretary shall make an allocation of appropriated funds to such States based on consideration of-"(A) the international commitments of the United States to protect endangered species or threatened species;
"(B) the readiness of a State to proceed with a conservation program consistent with the objectives and purposes of this Act;
"(C) the number of endangered species and threatened species within a State;
"(D) the potential for restoring endangered species and threatened species within a State; and
"(E) the relative urgency to initiate a program to restore and protect an endangered species or threatened species in terms of survival of the species.
So much of any appropriated funds allocated for obligation to any State for any fiscal year as remains unobligated
at the close thereof is authorized to be made available to that State until the close of the succeeding fiscal year. Any
amount allocated to any State which is unobligated at the end of the period during which it is available for expenditure
is authorized to be made available for expenditure by the Secretary in conducting programs under this section.".
Such Act further added subsec. (i).
Other provisions:
No effect on certain cooperative agreements. Act Oct. 9, 1981, P.L. 97-58, § 4(b), 95 Stat. 986, which appears as
16 USCS § 1379 note, provided that nothing in the amendments made to 16 USCS § 1379 by § 4(a) of such Act shall be
construed as affecting in any manner, or to any extent, any cooperative agreement entered into by a State under this section before, on or after the date of enactment on Oct. 9, 1981.
NOTES:
Related Statutes & Rules:
This section is referred to in 16 USCS §§ 668dd, 1533, 1538, 1540, 1544.
Research Guide:
Page 76
16 USCS § 1535
Am Jur:
35A Am Jur 2d, Fish, Game, and Wildlife Conservation § 64.
Annotations:
Construction and Application of State Endangered Species Acts. 44 ALR6th 325.
Texts:
2A Environmental Law Practice Guide (Matthew Bender), ch 15A, Indian Country Environmental Law § 15A.02.
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.
6 Environmental Law Practice Guide (Matthew Bender), ch 41, Federal-State Relationships § 41.02.
6 Environmental Law Practice Guide (Matthew Bender), ch 42, Alabama § 42.11.
8 Environmental Law Practice Guide (Matthew Bender), ch 88, Vermont § 88.09.
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.
Law Review Articles:
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.
Burke. Klamath Farmers and Cappuccino Cowboys N1: the Rhetoric of the Endangered Species Act and Why It
(Still) Matters. 14 Duke Envtl L & Pol'y F 441, Spring 2004.
Estes. The effect of the Federal Endangered Species Act on state water rights. 22 Envtl L 1027, 1992.
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
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.
Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.
Melious. Enforcing the Endangered Species Act Against the States. 25 Wm & Mary Envtl L & Pol'y Rev 605,
Spring 2001.
Interpretive Notes and Decisions:
1. Generally 2. Particular statutes
1. Generally
16 USCS § 1535 expressly permits states to continue to legislate and regulate with respect to importation, exportation, interstate or foreign commerce in nonindigenous species, subject only to limitation that states cannot relax requirements of federal law or contravene terms of federal permit or exemption. H. J. Justin & Sons, Inc. v Brown (1981,
ED Cal) 519 F Supp 1383, 12 ELR 20179, affd in part and revd in part on other grounds (1983, CA9 Cal) 702 F2d 758,
20 Envt Rep Cas 1993, 13 ELR 20479, cert den (1983) 464 US 823, 78 L Ed 2d 98, 104 S Ct 91.
Although state statutes may protect species which are not on endangered species list promulgated under predecessor federal act, there has been no showing that compliance with both federal and state laws is impossibility, nor that
Page 77
16 USCS § 1535
state law could not be enforced without impairing effectiveness of federal law, nor that wildlife conservation is matter
exclusively within sphere of federal competence nor that Congress intended to preempt state laws. A. E. Nettleton Co.
v Diamond (1970) 27 NY2d 182, 315 NYS2d 625, 264 NE2d 118, 44 ALR3d 994, reh den (1971) 28 NY2d 539, 319
NYS2d 440, 268 NE2d 122 and reh den (1971) 28 NY2d 583 and app dismd (1971) 401 US 969, 28 L Ed 2d 319, 91 S Ct
1201, 2 Envt Rep Cas 1910.
2. Particular statutes
State statute which prohibits trade in elephant parts within state is preempted under 16 USCS § 1535(f) by 50 CFR
§ 17.40(e) which authorizes trade in African elephant products under special federal permits. Man Hing Ivory & Imports, Inc. v Deukmejian (1983, CA9 Cal) 702 F2d 760, 20 Envt Rep Cas 1988, 13 ELR 20477.
New York law which prohibits importation of skins of certain species on grounds that they are endangered is not
invalid although it bans importation of skins of certain species which are not listed on endangered species list promulgated by Secretary of Interior; there is no inconsistency or conflict between New York statute and predecessor federal
act. Palladio, Inc. v Diamond (1970, SD NY) 321 F Supp 630, 2 Envt Rep Cas 1069, affd (1971, CA2 NY) 440 F2d
1319, 2 Envt Rep Cas 1435, 1 ELR 20268, cert den (1971) 404 US 983, 30 L Ed 2d 367, 92 S Ct 446, 3 Envt Rep Cas
1436.
Complaint by federally licensed wild bird importers is dismissed in action arising out of state law prohibiting sale
of wild birds not born in captivity, where importers contended federal wildlife importer licenses issued under 16 USCS
§ 1538 preempted state law under 16 USCS § 1535, because importers licenses were issued under 16 USCS § 1538
which does not give preemptive effect of § 1539; licenses only gave permission to engage in import business and were
issued solely to track trade in protective species and therefore do not constitute permits or exceptions preempting restrictive state law. Cresenzi Bird Importers, Inc. v New York (1987, SD NY) 658 F Supp 1441, 17 ELR 20996, affd
(1987, CA2 NY) 831 F2d 410, 18 ELR 20036.
Endangered Species Act (ESA) listing of Atlantic Salmon injured plaintiff state's sovereign interests in managing
and regulating their wildlife and other natural resources found within its borders, and in enacting and enforcing its own
legal codes because it essentially nullified any state law or regulation that permitted activity that, under ESA, would be
considered "take" of Atlantic Salmon; this was also true by virtue of supremacy clause of Constitution, which invalidated state laws that interfered with, or were contrary to, federal law, and by virtue of ESA's own preemption provision.
Maine v Norton (2003, DC Me) 257 F Supp 2d 357, 33 ELR 20183.
16 USCS § 1379, part of Marine Mammal Protection Act of 1972, remains in full force and effect under 16 USCS §
1535(f), part of Endangered Species Act. UFO Chuting of Haw., Inc. v Young (2004, DC Hawaii) 327 F Supp 2d 1220,
vacated on other grounds, count dismd (2005, DC Hawaii) 380 F Supp 2d 1166.
16 USCS § 1535(f) did not apply to bar suit filed by two animal protection organizations against Minnesota Department of Natural Resources (DNR) because organizations were not seeking to hold DNR liable for failing to do more
to protect officially designated threatened species, Canada Lynx, rather they were seeking to hold DNR liable for violating § 9 of Endangered Species Act, 16 USCS § 1538(a)(1)(B), by authorizing trapping within Canada Lynx's habitat,
which had resulted in incidental taking of 13 lynx in prior several years. 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).
6 of 15 DOCUMENTS
UNITED STATES CODE SERVICE
Copyright © 2011 Matthew Bender & Company,Inc.
a member of the LexisNexis Group (TM)
All rights reserved.
Page 78
16 USCS § 1536
*** 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 § 1536
§ 1536. Interagency cooperation
(a) Federal agency actions and consultations.
(1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the
purposes of this Act. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act [16 USCS § 1533].
(2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not
likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction
or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use
the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on
any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if
the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected
by his project and that implementation of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 4 [16 USCS § 1533] or result in the destruction or
adverse modification of critical habitat proposed to be designated for such species. This paragraph does not require a
limitation on the commitment of resources as described in subsection (d).
(b) Opinion of Secretary.
(1) (A) Consultation under subsection (a)(2) with respect to any agency action shall be concluded within the 90-day
period beginning on the date on which initiated or, subject to subparagraph (B), within such other period of time as is
mutually agreeable to the Secretary and the Federal agency.
(B) In the case of an agency action involving a permit or license applicant, the Secretary and the Federal agency
may not mutually agree to conclude consultation within a period exceeding 90 days unless the Secretary, before the
close of the 90th day referred to in subparagraph (A)-(i) if the consultation period proposed to be agreed to will end before the 150th day after the date on which
consultation was initiated, submits to the applicant a written statement setting forth-(I) the reasons why a longer period is required,
(II) the information that is required to complete the consultation, and
(III) the estimated date on which consultation will be completed; or
(ii) if the consultation period proposed to be agreed to will end 150 or more days after the date on which consultation was initiated, obtains the consent of the applicant to such period.
The Secretary and the Federal agency may mutually agree to extend a consultation period established under the
preceding sentence if the Secretary, before the close of such period, obtains the consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to the Secretary, the
Federal agency, and the applicant concerned.
(3) (A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a), the Secretary shall
provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary's opinion, and a
summary of the information on which the opinion is based, detailing how the agency action affects the species or its
critical habitat. If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent
Page 79
16 USCS § 1536
alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant
in implementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion issued by the Secretary incident to such consultation,
regarding an agency action shall be treated respectively as a consultation under subsection (a)(2), and as an opinion issued after consultation under such subsection, regarding that action if the Secretary reviews the action before it is commenced by the Federal agency and finds, and notifies such agency, that no significant changes have been made with
respect to the action and that no significant change has occurred regarding the information used during the initial consultation.
(4) If after consultation under subsection (a)(2), the Secretary concludes that-(A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the
Secretary believes would not violate such subsection;
(B) the taking of an endangered species or a threatened species incidental to the agency action will not violate
such subsection; and
(C) if an endangered species or threatened species of a marine mammal is involved, the taking is authorized pursuant to section 101(a)(5) of the Marine Mammal Protection Act of 1972 [16 USCS §§ 1361 et seq.]
the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that-(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to
minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are necessary to comply with section
101(a)(5) of the Marine Mammal Protection Act of 1972 [16 USCS §§ 1361 et seq.] with regard to such taking, and
(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be
complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses
(ii) and (iii).
(c) Biological assessment.
(1) To facilitate compliance with the requirements of subsection (a)(2), each Federal agency shall, with respect to
any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on the date of enactment of the Endangered Species Act Amendments of 1978 [enacted Nov. 10,
1978], request of the Secretary information whether any species which is listed or proposed to be listed may be present
in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available,
that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any
endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 180 days after the date on which initiated (or within such other period as is mutually agreed to by the Secretary and such agency, except that if a permit or license applicant is involved, the 180-day period may not be extended
unless such agency provides the applicant, before the close of such period, with a written statement setting forth the
estimated length of the proposed extension and the reasons therefor) and, before any contract for construction is entered
into and before construction is begun with respect to such action. Such assessment may be undertaken as part of a Federal agency's compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42
U.S.C. 4332) [42 USCS § 4332].
(2) Any person who may wish to apply for an exemption under subsection (g) of this section for that action may
conduct a biological assessment to identify any endangered species or threatened species which is likely to be affected
by such action. Any such biological assessment must, however, be conducted in cooperation with the Secretary and under the supervision of the appropriate Federal agency.
(d) Limitation on commitment of resources. After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources
with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2).
(e) Endangered Species Committee.
(1) There is established a committee to be known as the Endangered Species Committee (hereinafter in this section
referred to as the "Committee").
Page 80
16 USCS § 1536
(2) The Committee shall review any application submitted to it pursuant to this section and determine in accordance
with subsection (h) of this section whether or not to grant an exemption from the requirements of subsection (a)(2) of
this section for the action set forth in such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric Administration.
(G) The President, after consideration of any recommendations received pursuant to subsection (g)(2)(B) shall
appoint one individual from each affected State, as determined by the Secretary, to be a member of the Committee for
the consideration of the application for exemption for an agency action with respect to which such recommendations are
made, not later than 30 days after an application is submitted pursuant to this section.
(4) (A) Members of the Committee shall receive no additional pay on account of their service on the Committee.
(B) While away from their homes or regular places of business in the performance of services for the Committee,
members of the Committee shall be allowed travel expenses, including per diem in lieu of subsistence, in the same
manner as persons employed intermittently in the Government service are allowed expenses under section 5703 of title
5 of the United States Code [5 USCS § 5703].
(5) (A) Five members of the Committee or their representatives shall constitute a quorum for the transaction of any
function of the Committee, except that, in no case shall any representative be considered in determining the existence of
a quorum for the transaction of any function of the Committee if that function involves a vote by the Committee on any
matter before the Committee.
(B) The Secretary of the Interior shall be the Chairman of the Committee.
(C) The Committee shall meet at the call of the Chairman or five of its members.
(D) All meetings and records of the Committee shall be open to the public.
(6) Upon request of the Committee, the head of any Federal agency is authorized to detail, on a nonreimbursable
basis, any of the personnel of such agency to the Committee to assist it in carrying out its duties under this section.
(7) (A) The Committee may for the purpose of carrying out its duties under this section hold such hearings, sit and
act at such times and places, take such testimony, and receive such evidence, as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent of the Committee may take any action which the
Committee is authorized to take by this paragraph.
(C) Subject to the Privacy Act [5 USCS § 552a and note], the Committee may secure directly from any Federal
agency information necessary to enable it to carry out its duties under this section. Upon request of the Chairman of the
Committee, the head of such Federal agency shall furnish such information to the Committee.
(D) The Committee may use the United States mails in the same manner and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the Committee on a reimbursable basis such administrative support services as the Committee may request.
(8) In carrying out its duties under this section, the Committee may promulgate and amend such rules, regulations,
and procedures, and issue and amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the consideration of an application for an exemption under
this section the Committee may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents.
(10) In no case shall any representative, including a representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf of any member.
(f) Promulgation of regulations; form and contents of exemption application. Not later than 90 days after the date of
enactment of the Endangered Species Act Amendments of 1978 [enacted Nov. 10, 1978], the Secretary shall promulgate
regulations which set forth the form and manner in which applications for exemption shall be submitted to the Secretary
and the information to be contained in such applications. Such regulations shall require that information submitted in an
application by the head of any Federal agency with respect to any agency action include, but not be limited to-(1) a description of the consultation process carried out pursuant to subsection (a)(2) of this section between the head
of the Federal agency and the Secretary; and
Page 81
16 USCS § 1536
(2) a statement describing why such action cannot be altered or modified to conform with the requirements of subsection (a)(2) of this section.
(g) Application for exemption; report to Committee.
(1) A Federal agency, the Governor of the State in which an agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an agency action of such agency if, after consultation under
subsection (a)(2), the Secretary's opinion under subsection (b) indicates that the agency action would violate subsection
(a)(2). An application for an exemption shall be considered initially by the Secretary in the manner provided for in this
subsection, and shall be considered by the Committee for a final determination under subsection (h) after a report is
made pursuant to paragraph (5). The applicant for an exemption shall be referred to as the "exemption applicant" in this
section.
(2) (A) An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f), not later than 90 days after the completion of the consultation process; except that, in the case of any agency
action involving a permit or license applicant, such application shall be submitted not later than 90 days after the date on
which the Federal agency concerned takes final agency action with respect to the issuance of the permit or license. For
purposes of the preceding sentence, the term "final agency action" means (i) a disposition by an agency with respect to
the issuance of a permit or license that is subject to administrative review, whether or not such disposition is subject to
judicial review; or (ii) if administrative review is sought with respect to such disposition, the decision resulting after
such review. Such application shall set forth the reasons why the exemption applicant considers that the agency action
meets the requirements for an exemption under this subsection.
(B) Upon receipt of an application for exemption for an agency action under paragraph (1), the Secretary shall
promptly (i) notify the Governor of each affected State, if any, as determined by the Secretary, and request the Governors so notified to recommend individuals to be appointed to the Endangered Species Committee for consideration of
such application; and (ii) publish notice of receipt of the application in the Federal Register, including a summary of the
information contained in the application and a description of the agency action with respect to which the application for
exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of an application for exemption, or within such other period
of time as is mutually agreeable to the exemption applicant and the Secretary-(A) determine that the Federal agency concerned and the exemption applicant have-(i) carried out the consultation responsibilities described in subsection (a) in good faith and made a reasonable
and responsible effort to develop and fairly consider modifications or reasonable and prudent alternatives to the proposed agency action which would not violate subsection (a)(2);
(ii) conducted any biological assessment required by subsection (c); and
(iii) to the extent determinable within the time provided herein, refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d); or
(B) deny the application for exemption because the Federal agency concerned or the exemption applicant have not
met the requirements set forth in subparagraph (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be considered final agency action for purposes of chapter 7
of title 5, United States Code [5 USCS §§ 701 et seq.].
(4) If the Secretary determines that the Federal agency concerned and the exemption applicant have met the requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with the Members of the Committee, hold a
hearing on the application for exemption in accordance with sections 554, 555, and 556 (other than subsection (b)(1)
and (2) thereof) of title 5, United States Code [5 USCS §§ 554, 555, 556], and prepare the report to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under paragraph (3) or within such other period of time as is
mutually agreeable to the exemption applicant and the Secretary, the Secretary shall submit to the Committee a report
discussing-(A) the availability of reasonable and prudent alternatives to the agency action, and the nature and extent of the
benefits of the agency action and of alternative courses of action consistent with conserving the species or the critical
habitat;
(B) a summary of the evidence concerning whether or not the agency action is in the public interest and is of national or regional significance;
(C) appropriate reasonable mitigation and enhancement measures which should be considered by the Committee;
and
Page 82
16 USCS § 1536
(D) whether the Federal agency concerned and the exemption applicant refrained from making any irreversible or
irretrievable commitment of resources prohibited by subsection (d).
(6) To the extent practicable within the time required for action under subsection (g) of this section, and except to the
extent inconsistent with the requirements of this section, the consideration of any application for an exemption under
this section and the conduct of any hearing under this subsection shall be in accordance with sections 554, 555, and 556
(other than subsection (b)(3) of section 556) of title 5, United States Code.
(7) Upon request of the Secretary, the head of any Federal agency is authorized to detail, on a nonreimbursable basis,
any of the personnel of such agency to the Secretary to assist him in carrying out his duties under this section.
(8) All meetings and records resulting from activities pursuant to this subsection shall be open to the public.
(h) Grant of exemption.
(1) The Committee shall make a final determination whether or not to grant an exemption within 30 days after receiving the report of the Secretary pursuant to subsection (g)(5). The Committee shall grant an exemption from the requirements of subsection (a)(2) for an agency action if, by a vote of not less than five of its members voting in person-(A) it determines on the record, based on the report of the Secretary, the record of the hearing held under subsection (g)(4) and on such other testimony or evidence as it may receive, that-(i) there are no reasonable and prudent alternatives to the agency action;
(ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with
conserving the species or its critical habitat, and such action is in the public interest;
(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable
commitment of resources prohibited by subsection (d); and
(B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to minimize the adverse effects of the agency action upon the endangered species, threatened species, or critical habitat concerned.
Any final determination by the Committee under this subsection shall be considered final agency action for purposes
of chapter 7 of title 5 of the United States Code [5 USCS §§ 701 et seq.].
(2) (A) Except as provided in subparagraph (B), an exemption for an agency action granted under paragraph (1) shall
constitute a permanent exemption with respect to all endangered or threatened species for the purposes of completing
such agency action-(i) regardless whether the species was identified in the biological assessment; and
(ii) only if a biological assessment has been conducted under subsection (c) with respect to such agency action.
(B) An exemption shall be permanent under subparagraph (A) unless-(i) the Secretary finds, based on the best scientific and commercial data available, that such exemption would
result in the extinction of a species that was not the subject of consultation under subsection (a)(2) or was not identified
in any biological assessment conducted under subsection (c), and
(ii) the Committee determines within 60 days after the date of the Secretary's finding that the exemption should
not be permanent.
If the Secretary makes a finding described in clause (i), the Committee shall meet with respect to the matter within
30 days after the date of the finding.
(i) Review by Secretary of State; violation of international treaty or other international obligation of United States.
Notwithstanding any other provision of this Act, the Committee shall be prohibited from considering for exemption any
application made to it, if the Secretary of State, after a review of the proposed agency action and its potential implications, and after hearing, certifies, in writing, to the Committee within 60 days of any application made under this section
that the granting of any such exemption and the carrying out of such action would be in violation of an international
treaty obligation or other international obligation of the United States. The Secretary of State shall, at the time of such
certification, publish a copy thereof in the Federal Register.
(j) Exemption for national security reasons. Notwithstanding any other provision of this Act, the Committee shall grant
an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of
national security.
(k) Exemption decision not considered major Federal action; environmental impact statement. An exemption decision
by the Committee under this section shall not be a major Federal action for purposes of the National Environmental
Page 83
16 USCS § 1536
Policy Act of 1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental impact statement which discusses the
impacts upon endangered species or threatened species or their critical habitats shall have been previously prepared with
respect to any agency action exempted by such order.
(l) Committee order granting exemption; cost of mitigation and enhancement measures; report by applicant to Council
on Environmental Quality.
(1) If the Committee determines under subsection (h) that an exemption should be granted with respect to any agency
action, the Committee shall issue an order granting the exemption and specifying the mitigation and enhancement
measures established pursuant to subsection (h) which shall be carried out and paid for by the exemption applicant in
implementing the agency action. All necessary mitigation and enhancement measures shall be authorized prior to the
implementing of the agency action and funded concurrently with all other project features.
(2) The applicant receiving such exemption shall include the costs of such mitigation and enhancement measures
within the overall costs of continuing the proposed action. Notwithstanding the preceding sentence the costs of such
measures shall not be treated as project costs for the purpose of computing benefit-cost or other ratios for the proposed
action. Any applicant may request the Secretary to carry out such mitigation and enhancement measures. The costs incurred by the Secretary in carrying out any such measures shall be paid by the applicant receiving the exemption. No
later than one year after the granting of an exemption, the exemption applicant shall submit to the Council on Environmental Quality a report describing its compliance with the mitigation and enhancement measures prescribed by this section. Such a report shall be submitted annually until all such mitigation and enhancement measures have been completed. Notice of the public availability of such reports shall be published in the Federal Register by the Council on Environmental Quality.
(m) Notice requirement for citizen suits not applicable. The 60-day notice requirement of section 11(g) of this Act [16
USCS § 1540(g)] shall not apply with respect to review of any final determination of the Committee under subsection
(h) of this section granting an exemption from the requirements of subsection (a)(2) of this section.
(n) Judicial review. Any person, as defined by section 3(13) of this Act [16 USCS § 1532(13)], may obtain judicial
review, under chapter 7 of title 5 of the United States Code, of any decision of the Endangered Species Committee under subsection (h) in the United States Court of Appeals for (1) any circuit wherein the agency action concerned will be,
or is being, carried out, or (2) in any case in which the agency action will be, or is being, carried out outside of any circuit, the District of Columbia, by filing in such court within 90 days after the date of issuance of the decision, a written
petition for review. A copy of such petition shall be transmitted by the clerk of the court to the Committee and the
Committee shall file in the court the record in the proceeding, as provided in section 2112, of title 28, United States
Code. Attorneys designated by the Endangered Species Committee may appear for, and represent the Committee in any
action for review under this subsection.
(o) Exemption as providing exception on taking of endangered species. Notwithstanding sections 4(d) and 9(a)(1)(B)
and (C) [16 USCS §§ 1533(d), 1538(a)(1)(B), (C)], sections 101 and 102 of the Marine Mammal Protection Act of 1972
[16 USCS §§ 1361 et seq.], or any regulation promulgated to implement any such section-(1) any action for which an exemption is granted under subsection (h) shall not be considered to be a taking of any
endangered species or threatened species with respect to any activity which is necessary to carry out such action; and
(2) any taking that is in compliance with the terms and conditions specified in a written statement provided under
subsection (b)(4)(iv) shall not be considered to be a prohibited taking of the species concerned.
(p) Exemptions in Presidentially declared disaster areas. In any area which has been declared by the President to be a
major disaster area under the Disaster Relief and Emergency Assistance Act, the President is authorized to make the
determinations required by subsections (g) and (h) of this section for any project for the repair or replacement of a public facility substantially as it existed prior to the disaster under section 405 or 406 of the Disaster Relief and Emergency
Assistance Act [42 USCS § 5171 or § 5172], and which the President determines (1) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation
which does not allow the ordinary procedures of this section to be followed. Notwithstanding any other provision of this
section, the Committee shall accept the determinations of the President under this subsection.
HISTORY:
Page 84
16 USCS § 1536
(Dec. 28, 1973, P.L. 93-205, § 7, 87 Stat. 892; Nov. 10, 1978, P.L. 95-632, § 3, 92 Stat. 3752; Dec. 28, 1979, P.L.
96-159, § 4, 93 Stat. 1226; Oct. 13, 1982, P.L. 97-304, §§ 4(a), 8(b), 96 Stat. 1417, 1426; Nov. 14, 1986, P.L. 99-659,
Title IV, § 411(b), 100 Stat. 3741, 3742; Nov. 23, 1988, P.L. 100-707, Title I, § 109(g), 102 Stat. 4709.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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 such Act, consult USCS Tables volumes.
The "Disaster Relief Act of 1974", referred to in this section, is Act May 22, 1974, P.L. 93-288, 88 Stat. 143, which
appears generally as 42 USCS §§ 5121 et seq. For full classification of such Act, consult USCS Tables volumes.
The "Disaster Relief and Emergency Assistance Act", also known as the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, referred to in this section, is Act May 22, 1974, P.L. 93-288, 88 Stat. 143, which appears
generally as 42 USCS §§ 5121 et seq. For full classification of such Act, consult USCS Tables volumes.
Effective date of section:
This section became effective on enactment, as provided by Act Dec. 28, 1973, P.L. 93-205, § 16, 87 Stat. 903,
which appears as 16 USCS § 1531 note.
Amendments:
1978. Act Nov. 10, 1978, substituted this section for one which read: "The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. All other Federal departments
and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of
the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species
listed pursuant to section 4 of this Act and by taking such action necessary to insure that actions authorized, funded, or
carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation
as appropriate with the affected States, to be critical.".
1979. Act Dec. 28, 1979, in subsec. (a), substituted "(a) Federal agency actions and consultations. (1)" for "(a) Consultation.", deleted "Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an 'agency action')
does not jeopardize the continued existence of any endangered species or threatened species or result in the destruction
or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical, unless such agency has been granted an exemption for such action by the
Committee pursuant to subsection (h) of this section." following "section 4 of this Act.", and added paras. (2) and (3); in
subsec. (b), substituted "subsection (a)(2)" for "subsection (a)", and "not violate subsection (a)(2) and can" for "avoid
jeopardizing the continued existence of any endangered or threatened species or adversely modifying the critical habitat
of such species, and which can"; in subsec. (c), designated existing provisions as para. (1), in para. (1), as so redesignated, substituted "subsection (a)(2)" for "subsection (a)", and added para. (2); in subsec. (d), substituted "subsection
(a)(2)" for "subsection (a)" and "not violate subsection (a)(2)." for "avoid jeopardizing the continued existence of any
endangered or threatened species or adversely modifying or destroying the critical habitat of any such species."; in subsecs. (e)(2) and (f), substituted "subsection (a)(2)" for "subsection (a)", wherever appearing; in subsec. (g), in para. (1),
substituted "subsection (a)(2)" for "subsection (a)" and "would violate subsection (a)(2)" for "may jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify the critical habitat of such species", in para. (2)(A), inserted "; or, in the case of any agency action involving a permit or license applicant, not later
Page 85
16 USCS § 1536
than 90 days after the date on which the Federal agency concerned takes final agency action, for purposes of chapter 7
of title 5, United States Code, with respect to the issuance of the permit or license", in para. (3), redesignated subpara.
(B) as subpara. (C), and added subpara. (B), in para. (5), substituted "subsection (a)(2)" for "subsection (a)", redesignated cls. (1) and (2) as subparas. (A) and (B), respectively, in subpara. (B), as so redesignated, inserted "the Federal
agency concerned and", redesignated subcls. (A), (B), and (C) as subcls. (i), (ii), and (iii), respectively, in subcl. (i), as
so redesignated, substituted "would not violate subsection (a)(2);" for "will avoid jeopardizing the continued existence
of an endangered or threatened species or result in the adverse modification or destruction of a critical habitat;", substituted "Federal agency concerned or the exemption applicant has not met its respective requirements under subclause (i),
(ii), or (iii) shall be considered final agency action for purposes of chapter 7 of title 5 of the United States Code." for
"exemption applicant has not met the requirements of subparagraph (A), (B), or (C) shall be considered final agency
action for purposes of chapter 7 of title 5 of the United States Code.", in para. (6), substituted "subclauses (i), (ii) and
(iii)" for "subparagraphs (A), (B), and (C)"; and in subsec. (h), in para. (1), substituted "subsection (a)(2)" for "subsection (a)", and substituted para. (2) for one which read:
"(2)
(A) Except as provided in subparagraph (B), an exemption for an agency action granted under subsection (h)
shall constitute a permanent exemption with respect to all endangered or threatened species for the purposes of completing such agency action: Provided, That a biological assessment has been conducted under subsection (c).
"(B) An exemption shall not be permanent under subparagraph (A) if the Secretary finds, based on the best
scientific and commercial data available, that such exemption would result in the extinction of the species. If the Secretary so finds, the Committee shall determine within 30 days after such finding whether to grant an exemption for the
agency action notwithstanding the Secretary's finding.".
Such Act further, in subsec. (m), substituted "subsection (a)(2)" for "subsection (a)"; in subsec. (q), substituted
"There are authorized to be appropriated to the Secretary to assist review boards and the Committee in carrying out their
functions under subsections (e), (f), (g), and (h) of this section not to exceed $ 600,000 for each of fiscal years 1979,
1980, 1981, and 1982." for "There is authorized to be appropriated to the Secretary to assist review boards and the
Committee in carrying out their functions under subsections (e), (f), (g), and (h) of this section not to exceed $ 600,000
for fiscal year 1979, and not to exceed $ 300,000 for the period beginning October 1, 1979, and ending March 31,
1980.".
1982. Act Oct. 13, 1982, in subsec. (a), redesignated former para. (3) as para. (4), and added a new para. (3); substituted
subsec. (b) for one which read: "Consultation under subsection (a)(2) with respect to any agency action shall be concluded within 90 days after the date on which initiated or within such other period of time as is mutually agreeable to
the Federal agency and the Secretary. Promptly after the conclusion of consultation, the Secretary shall provide to the
Federal agency concerned a written statement setting forth the Secretary's opinion, and a summary of the information on
which the opinion is based, detailing how the agency action affects the species or its critical habitat. The Secretary shall
suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or the permit or license applicant in implementing the agency action."; in subsec. (c)(1), inserted ", except that if a permit or license applicant is involved, the 180-day period may not be extended unless such
agency provides the applicant, before the close of such period, with a written statement setting forth the estimated
length of the proposed extension and the reasons therefor"; in subsec. (e)(10), deleted a sentence which read: "Except in
the case of a member designated pursuant to paragraph (3)(G) of this subsection, no member shall designate any person
to serve as his or her representative unless that person is, at the time of such designation, holding a Federal office the
appointment to which is subject to the advice and consent of the United States Senate." following "(10)"; in subsec. (g),
in para. (1) substituted "An application for an exemption shall be considered initially by the Secretary in the manner
provided for in this subsection, and shall be considered by the Committee for a final determination under subsection (h)
after a report is made pursuant to paragraph (5)." for "An application for an exemption shall be considered initially by a
review board in the manner provided in this subsection, and shall be considered by the Endangered Species Committee
for a final determination under subsection (h) after a report is made by the review board.", in para. (2), in subpara. (A),
substituted "An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f), not later than 90 days after the completion of the consultation process; except that, in the case of any agency
action involving a permit or license applicant, such application shall be submitted not later than 90 days after the date on
which the Federal agency concerned takes final agency action with respect to the issuance of the permit or license. For
purposes of the preceding sentence, the term 'final agency action' means (i) a disposition by an agency with respect to
the issuance of a permit or license that is subject to administrative review, whether or not such disposition is subject to
Page 86
16 USCS § 1536
judicial review; or (ii) if administrative review is sought with respect to such disposition, the decision resulting after
such review." for "An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f) of this section, not later than 90 days after the completion of the consultation process; or, in the case
of any agency action involving a permit or license applicant, not later than 90 days after the date on which the Federal
agency concerned takes final agency action, for purposes of chapter 7 of title 5, United States Code with respect to the
issuance of the permit or license.", in subpara. (B), inserted "(i)", deleted "to the review board to be established under
paragraph (3) and" preceding "to the Endangered Species", and inserted "; and (ii) publish notice of receipt of the application in the Federal Register, including a summary of the information contained in the application and a description of
the agency action with respect to which the application for exemption has been filed", deleted paras. (3) and (4) which
read:
"(3)
(A) A review board shall be established for purposes of considering an application for exemption and submitting a report to the Endangered Species Committee under this subsection as follows:
"(i) One individual shall be appointed to the board by the Secretary not later than 15 days after an application is submitted pursuant to paragraph (2).
"(ii) One individual shall be appointed to the board by the President, not later than 30 days after an application is submitted pursuant to paragraph (2) and after consideration of any recommendations received pursuant to paragraph (2)(B). An individual appointed by the President under this subparagraph shall be a resident of a State, if any, in
which the agency action will be, or is being, carried out.
"(iii) One administrative law judge shall be selected to serve on the board by the Civil Service Commission
in the same manner as administrative law judges are selected under section 3344 of title 5 of the United States Code to
be detailed to an agency which occasionally or temporarily is insufficiently staffed with administrative law judges. The
use by the review board of such an administrative law judge shall be on a reimbursable basis.
"(B) If biological opinions of both the Secretary of the Interior and the Secretary of Commerce indicate that an
agency action would violate subsection (a)(2), such Secretaries shall jointly convene a review board to consider any
application for exemption filed with respect to such agency action.
"(C) Members of a review board who are full-time officers or employees of the United States shall receive no
additional pay on account of their service on the board. All other members shall be entitled to receive an amount not to
exceed the daily equivalent of the annual rate of basic pay in effect for grade GS-18 of the General Schedule for each
day during which they are engaged in the actual performance of duties vested in the board. While away from their
homes or regular places of business in the performance of services for a review board, members of the board shall be
allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703 of title 5 of the United States Code.
"(4) The Secretary shall submit the application to the review board immediately after its appointment under paragraph (3), and the Secretary shall submit to the review board, in writing, his views and recommendations with respect to
the application within 60 days after receiving a copy of any application under paragraph (2).".
Such Act further, in subsec. (g), redesignated para. (5) as para. (3) and substituted para. (3), as so redesignated, for
one which read: "It shall be the duty of a review board appointed under paragraph (3) to make a full review of the consultation carried out under subsection (a)(2), and within 60 days after its appointment or within such longer time as is
mutually agreed upon between the exemption applicant and the Secretary, to make a determination, by a majority vote,
(A) whether an irresolvable conflict exists and (B) whether the Federal agency concerned and such exemption applicant
has-"(i) carried out its consultation responsibilities as described in subsection (a) in good faith and made a reasonable and responsible effort to develop and fairly consider modifications or reasonable and prudent alternatives to the
proposed agency action which would not violate subsection (a)(2);
"(ii) conducted any biological assessment required of it by subsection (c); and
"(iii) refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d).
Any determination by the review board that an irresolvable conflict does not exist or that the Federal agency concerned or the exemption applicant has not met its respective requirements under subclause (i), (ii), or (iii) shall be considered final agency action for purposes of chapter 7 of title 5 of the United States Code.".
Such Act further, in subsec. (g), redesignated para. (6) as para. (4), and substituted para. (4), as so redesignated, for
one which read: "If the review board determines that an irresolvable conflict exists and makes positive determinations
under subclauses (i), (ii), and (iii) of paragraph (5), it shall proceed to prepare the report to be submitted under paragraph (7).", redesignated para. (7) as para. (5), in para. (5), as so redesignated, substituted: "Within 140 days after mak-
Page 87
16 USCS § 1536
ing the determinations under paragraph (3) or within such other period of time as is mutually agreeable to the exemption
applicant and the Secretary, the Secretary shall submit to the Committee a report discussing--" for "Within 180 days
after making the determinations under paragraph (6), the review board shall submit to the Committee a report discussing--", in subpara. (C), substituted "; and" for a period, and added subpara. (D), redesignated para. (8) as para. (6), and
deleted para. (9) which read:
"(9) In carrying out its duties under this subsection, a review board may, and any member of a review board if so
authorized by the review board, may-"(A) sit and act at such times and places, take such testimony, and receive such evidence, as the review board
deems advisable;
"(B) subject to the Privacy Act of 1974, request of any Federal agency or applicant information necessary to
enable it to carry out such duties, and upon such request the head of such Federal agency shall furnish such information
to the review board; and
"(C) use the United States mails in the same manner and upon the same conditions as a Federal agency.".
Such Act further, in subsec. (g), redesignated para. (10) as para. (7), and substituted para. (7), as so redesignated, for
one which read: "Upon request of a review board, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the review board to assist it in carrying out its duties under this
section.", deleted para. (11) which read: "The Administrator of the General Services Administration shall provide to a
review board, on a reimbursable basis, such administrative support services as the review board may request.", redesignated para. (12) as para. (8), and in para. (8), as so redesignated, substituted "resulting from activities pursuant to this
subsection" for "of review boards"; in subsec. (h)(1), in the introductory matter, substituted "30 days after receiving the
report of the Secretary pursuant to subsection (g)(5)" for "90 days of receiving the report of the review board under
subsection (g)(7)", in subpara. (A), substituted "Secretary, the record of the hearing held under subsection (g)(4)" for
"review board", in cl. (ii), deleted "and" following "interest;" and added cl. (iv); substituted subsec. (o) for one which
read: "Notwithstanding sections 4(d) and 9(a) of this Act or any regulations promulgated pursuant to such sections, any
action for which an exemption is granted under subsection (h) of this section shall not be considered a taking of any
endangered or threatened species with respect to any activity which is necessary to carry out such action."; and deleted
subsec. (q) which read: "There are authorized to be appropriated to the Secretary to assist review boards and the Committee in carrying out their functions under subsections (e), (f), (g), and (h) of this section not to exceed $ 600,000 for
each of fiscal years 1979, 1980, 1981, and 1982. The Chairman of the Committee shall report to the Congress before the
end of fiscal year 1979 with respect to the adequacy of the budget authority contained in this subsection.".
1986. Act Nov. 14, 1986, in subsec. (b), in para. (4), in subpara. (A), deleted "and" following the concluding semicolon,
in subpara. (B), inserted "and" following the concluding semicolon, added subpara. (C), in clause (ii), deleted "and"
following the concluding comma, redesignated clause (iii) as clause (iv), added a new clause (iii), and in clause (iv), as
redesignated, substituted "clauses (ii) and (iii)" for "clause (ii)"; and in subsec. (o), in the introductory matter, inserted ",
sections 101 and 102 of the Marine Mammal Protection Act of 1972,", and substituted "any" for "either", and in para.
(2), substituted "(b)(4)(iv)" for "(b)(4)(iii), and inserted "prohibited".
1988. Act Nov. 23, 1988, in subsec. (p), substituted "Disaster Relief and Emergency Assistance Act" for "Disaster Relief Act of 1974" and "section 405 or 406 of the Disaster Relief and Emergency Assistance Act" for "401 or 402 of the
Disaster Relief Act of 1974".
Other provisions:
Translocation of California sea otters. Act Nov. 7, 1986, P.L. 99-625, § 1, 100 Stat. 3500, provides:
"(a) Definitions. For purposes of this section-"(1) The term 'Act' means the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
"(2) The term 'agency action' has the meaning given that term in section 7(a)(2) of the Act [subsec (a)(2) of this
section].
"(3) The term 'experimental population' means the population of sea otters provided for under a plan developed
under subsection (b).
Page 88
16 USCS § 1536
"(4) The phrase 'parent population' means the population of sea otters existing in California on the date on which
proposed regulations setting forth a proposed plan under subsection (b) are issued.
"(5) The phrase 'prospective action' refers to any prospective agency action that-"(A) may affect either the experimental population or the parent population; and
"(B) has evolved to the point where meaningful consultation under section 7(a)(2) or (3) of the Act [subsec.
(a)(2), (3) of this section] can take place.
"(6) The term 'Secretary' means the Secretary of the Interior.
"(7) The term 'Service' means the United States Fish and Wildlife Service.
"(b) Plan specifications. The Secretary may develop and implement, in accordance with this section, a plan for the
relocation and management of a population of California sea otters from the existing range of the parent population to
another location. The plan, which must be developed by regulation and administered by the Service in cooperation with
the appropriate State agency, shall include the following:
"(1) The number, age, and sex of sea otters proposed to be relocated.
"(2) The manner in which the sea otters will be captured, translocated, released, monitored, and protected.
"(3) The specification of a zone (hereinafter referred to as the 'translocation zone') to which the experimental population will be relocated. The zone must have appropriate characteristics for furthering the conservation of the species.
"(4) The specification of a zone (hereinafter referred to as the 'management zone') that-"(A) surrounds the translocation zone; and
"(B) does not include the existing range of the parent population or adjacent range where expansion is necessary for the recovery of the species.
The purpose of the management zone is to (i) facilitate the management of sea otters and the containment of the
experimental population within the translocation zone, and (ii) to prevent, to the maximum extent feasible, conflict with
other fishery resources within the management zone by the experimental population. Any sea otter found within the
management zone shall be treated as a member of the experimental population. The Service shall use all feasible
non-lethal means and measures to capture any sea otter found within the management zone and return it to either the
translocation zone or to the range of the parent population.
"(5) Measures, including an adequate funding mechanism, to isolate and contain the experimental population.
"(6) A description of the relationship of the implementation of the plan to the status of the species under the Act
and to determinations of the Secretary under section 7 of the Act [this section].
"(c) Status of members of the experimental population. (1) Any member of the experimental population shall be
treated while within the translocation zone as a threatened species for purposes of the Act, except that-"(A) section 7 of the Act [this section] shall only apply to agency actions that-"(i) are undertaken within the translocation zone,
"(ii) are not defense-related agency actions, and
"(iii) are initiated after the date of the enactment of this section; and
"(B) with respect to defense-related actions within the translocation zone, members of the experimental population shall be treated as members of a species that is proposed to be listed under section 4 of the Act [16 USCS § 1533].
For purposes of this paragraph, the term 'defense-related agency action' means an agency action proposed to be
carried out directly by a military department.
"(2) For purposes of section 7 of the Act [this section], any member of the experimental population shall be treated while within the management zone as a member of a species that is proposed to be listed under section 4 of the Act
[16 USCS § 1533]. Section 9 of the Act [16 USCS § 1538] applies to members of the experimental population; except
that any incidental taking of such a member during the course of an otherwise lawful activity within the management
zone, may not be treated as a violation of the Act or the Marine Mammal Protection Act of 1972 [16 USCS §§ 1361 et
seq.].
"(d) Implementation of plan. The Secretary shall implement the plan developed under subsection (b)-"(1) after the Secretary provides an opinion under section 7(b) of the Act [subsec. (b) of this section] regarding
each prospective action for which consultation was initiated by a Federal agency or requested by a prospective permit or
license applicant before April 1, 1986; or
"(2) if no consultation under section 7(a)(2) or (3) [subsec. (a)(2), (3) of this section] regarding any prospective
action is initiated or requested by April 1, 1986, at any time after that date.
"(e) Consultation and effect of opinion. A Federal agency shall promptly consult with the Secretary, under section
7(a)(3) of the Act [subsec (a)(3) of this section], at the request of, and in cooperation with, any permit or license applicant regarding any prospective action. The time limitations applicable to consultations under section 7(a)(2) of the Act
[subsec. (a)(2) of this section] apply to consultations under the preceding sentence. In applying section 7(b)(3)(B) [sub-
Page 89
16 USCS § 1536
sec. (b)(3)(B) of this section] with respect to an opinion on a prospective action that is provided after consultation under
section 7(a)(3) [subsec. (a)(3) of this section], that opinion shall be treated as the opinion issued after consultation under
section 7(a)(2) [subsec. (a)(2) of this section] unless the Secretary finds, after notice and opportunity for comment in
accordance with section 553 of title 5, United States Code, that a significant change has been made with respect to the
action or that a significant change has occurred regarding the information used during the initial consultation. The interested party may petition the Secretary to make a finding under the preceding sentence. The Secretary may implement
any reasonable and prudent alternatives specified in any opinion referred to in this subsection through appropriate
agreements with any such Federal agency, prospective permit or license applicant, or other interested party.
"(f) Construction. For purposes of implementing the plan, no act by the Service, an authorized State agency, or an
authorized agent of the Service or such an agency with respect to a sea otter that is necessary to effect the relocation or
management of any sea otter under the plan may be treated as a violation of any provision of the Act or the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.).".
Emergency situations, formal consultation or conferencing. Act June 12, 1997, P.L. 105-18, Title II, Ch 3, §
3003, 111 Stat. 176, provides:
"(a) Consultation and conferencing. As provided by regulations issued under the Endangered Species Act (16 U.S.C.
1531 et seq.) for emergency situations, formal consultation or conferencing under section 7(a)(2) or section 7(a)(4) of
the Act [16 USCS § 1536(a)(2) or (a)(4)] for any action authorized, funded or carried out by any Federal agency to repair a Federal or non-Federal flood control project, facility or structure may be deferred by the Federal agency authorizing, funding or carrying out the action, if the agency determines that the repair is needed to respond to an emergency
causing an imminent threat to human lives and property in 1996 or 1997. Formal consultation or conferencing shall be
deferred until the imminent threat to human lives and property has been abated. For purposes of this section, the term
repair shall include preventive and remedial measures to restore the project, facility or structure to remove an imminent
threat to human lives and property.
"(b) Reasonable and prudent measures. Any reasonable and prudent measures specified under section 7 of the Endangered Species Act (16 U.S.C. 1536) to minimize the impact of an action taken under this section shall be related both
in nature and extent to the effect of the action taken to repair the flood control project, facility or structure.".
NOTES:
Related Statutes & Rules:
This section is referred to in 16 USCS §§ 1532, 1533, 1539, 1542, 3645, 6576 ; 23 USCS § 108; 42 USCS § 15924.
Research Guide:
Federal Procedure:
6 Administrative Law (Matthew Bender), ch 50, Standing § 50.04.
24A Fed Proc L Ed, Natural and Marine Resources §§ 56:2074, 2105, 2132, 2158, 2166, 2167, 2169, 2170,
2173-2176, 2337.
Am Jur:
35A Am Jur 2d, Fish, Game, and Wildlife Conservation §§ 65-67.
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.
Forms:
Page 90
16 USCS § 1536
10B Fed Procedural Forms L Ed, Highways and Bridges (2006) § 38:17.
13A Am Jur Pl & Pr Forms (2009), Highways, Streets, and Bridges, § 219.
19C Am Jur Pl & Pr Forms (2007), Pollution Control, § 157.
Texts:
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 17, Natural Resources § 17.04.
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 19, Water Rights § 19.06.
1 Computer Law (Matthew Bender), ch 2A, Data Protection § 2A.10.
2 Energy Law & Transactions (Matthew Bender), ch 53, Hydroelectric Power § 53.05.
3 Energy Law & Transactions (Matthew Bender), ch 59, Energy Policy Act of 2005 § 59.03.
2 Environmental Law Practice Guide (Matthew Bender), ch 9A, Government Financing § 9A.02.
2 Environmental Law Practice Guide (Matthew Bender), ch 11B, Environmental Litigation § 11B.08.
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 19, Wetlands § 19.04.
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.
5 Environmental Law Practice Guide (Matthew Bender), ch 34A, Agricultural Environmental Law § 34A.05.
6 Environmental Law Practice Guide (Matthew Bender), ch 46, California § 46.12.
2 Treatise on Environmental Law (Matthew Bender), ch 3, Water Pollution § 3.03.
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation §§ 12.03, 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.
Boudreaux. Understanding "Take" in the Endangered Species Act. 34 Ariz St LJ 733, Fall 2002.
May; Porier. Master Environmental Edition Ii: It's Not Easy Being Green: Are DOD INRMPS a Defensible Substitute for Critical Habitat Designation?. 58 AF L Rev 175, 2006.
The Extraterritorial Application of Section 7 of the Endangered Species Act. 13 Colum J Envt'l L 129, 1987.
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.
Benson. Dams, Duties, and Discretion: Bureau of Reclamation Water Project Operations and the Endangered Species
Act. 33 Colum J Envtl L 1, 2008.
Doremus; Tarlock. Fish, Farms, and the Clash of Cultures in the Klamath Basin. 30 Ecology LQ 279, 2003.
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Blumm; Thorson; Smith. Practiced at the Art of Deception: The Failure of Columbia Basin Salmon Recovery Under
the Endangered Species Act. 36 Envtl L 709, Summer 2006.
Becker. The Challenges of Dam Removal: The History and Lessons of the Condit Dam and Potential Threats from
the 2005 Federal Power Act Amendments. 36 Envtl L 811, summer 2006.
Extraterritoriality and the Endangered Species Act of 1973. 80 Geo L J 435, December 1991.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
Kunich. Preserving the Womb of the Unknown Species with Hotspots Legislation. 52 Hastings LJ 1149, August
2001.
Gray. The Endangered Species Act: Reform or Refutation? 13 Hastings W-NW J Env L & Pol'y 1, Winter 2007.
Lacey. New Hope for Pacific Salmon? Northwest Resource Information Center v. Northwest Power Planning Council [35 F3d 1371; 1994 US App LEXIS 24341 (CA9, 1994)] Idaho Department of Fish & Game v. National Marine
Fisheries Service [850 F Supp 886; 1994 US Dist LEXIS 5089 (D Or, 1994)], and the Aftermath of Judicial Impatience.
14 Hastings W-NW J Env L & Pol'y 333, Winter 2008.
Klee; Mecham. The Nez Perce Indian Water Right Settlement-Federal Perspective. 42 Idaho L Rev 595, 2006.
Page 91
16 USCS § 1536
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.
Shepherd. The Future of Livestock Grazing and the Endangered Species Act. 21 J Envtl L & Litig 383, 2006.
Davison. Federal Agency Action Subject to Section 7(a)(2) of the Endangered Species Act. 14 Mo Envtl L & Pol'y
Rev 29, Fall 2006.
Benson. So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and
the Endangered Species Act. 44 Nat Resources J 29, Winter 2004.
Broderick. Towards Common Sense in ESA Enforcement: Federal Courts and the Limits on Administrative Authority and Discretion under the Endangered Species Act. 44 Nat Resources J 77, Winter 2004.
Landis. The Domestic Implications of Environmental Stewardship at Overseas Installations: a Look at Domestic
Questions Raised by the United States' Overseas Environmental Policies. 49 Naval L Rev 99, 2002.
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.
Hasselman. Holes in the Endangered Species Act Safety Net: the Role of Agency "Discretion" in Section 7 Consultation. 25 Stan Envtl LJ 125, July 2006.
Brennan; Roth; Feldman; Greene. The Endangered Species Act: Thirty Years of Politics, Money, and Science:
Square Pegs and Round Holes: Application of the "Best Scientific Data Available" Standard in the Endangered Species
Act. 16 Tul Envtl LJ 387, Summer 2003.
The Mandate of Section 7 of the Endangered Species Act of 1973: The Darter Meets the Dam. 47 Univ of Cincinnati L Rev 613, 1978.
Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.
Interpretive Notes and Decisions:
1. Generally 2. What constitutes "agency action" 3.--Contracts; grants 4.--Implementation of statutes 5.--Leases
6.--Letters and other communications 7.--Orders 8.--Permits 9.--Planning documents 10.--Other particular actions 11.
Duty to protect endangered species, generally 12.--Duties derived from other statutes 13.--Duty to consult
14.--Limitations on duty 15.--Particular species 16. Biological assessment 17. Biological opinion 18.--Contents of
opinion 19.----No-jeopardy finding 20.----Incidental take statement 21.--Forest management 22.--Grazing rights
23.--Hydropower development 24.--Mineral and petroleum leases 25.--Water rights; flood control 26.--Particular species 27.----Birds 28.----Fish 29.----Mammals 30. Mitigation lands 31. Consultation with Secretary or agency
32.--Application of consultation requirement 33.----Consultation not required 34.--Contents of consultation 35.--Effect
on final decision 36.--Standing 37.--Ripeness; mootness 38. Effect on particular activities 39.--Campground operation
40.--Dam construction and operation 41.--Forest management 42.--Land development 43.--Oil and gas exploration
44.--Pesticide and rodenticide usage 45.--Road construction 46. Effect on particular species 47. Rulemaking procedure
48.--Judicial review 49.----Parties; standing 50.----Ripeness; mootness 51.----Standards of review 52.----Particular determinations 53.------Fish; fishing 54.------Mammals 55.------Plants 56. Miscellaneous
1. Generally
On-going nature of project does not preclude enforcement of 16 USCS § 1536. Hill v Tennessee Valley Authority
(1977, CA6 Tenn) 549 F2d 1064, 9 Envt Rep Cas 1737, 7 ELR 20172, affd (1978) 437 US 153, 98 S Ct 2279, 57 L Ed
2d 117, 11 Envt Rep Cas 1705, 8 ELR 20513 (superseded by statute on other grounds as stated in Board of Governors of
Federal Reserve System v Dimension Financial Corp. (1986) 474 US 361, 106 S Ct 681, 88 L Ed 2d 691, CCH Fed Secur L Rep P 92437) and (superseded by statute on other grounds as stated in Pyramid Lake Paiute Tribe of Indians v
United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572) and (superseded by statute on other
grounds as stated in Pacific Rivers Council v Thomas (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal
DAR 9626, 39 Envt Rep Cas 1078, 24 ELR 21367) and (superseded by statute on other grounds as stated in Rio Grande
Silvery Minnow v Keys (2002, DC NM) 356 F Supp 2d 1222) and (superseded by statute on other grounds as stated in
Sierra Club v Strock (2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep Cas 2082, 37 ELR 20188, 20 FLW Fed D 995)
and (superseded by statute on other grounds as stated in Hoosier Envtl. Council v United States DOT (2007, SD Ind)
Page 92
16 USCS § 1536
2007 US Dist LEXIS 90840) and (superseded by statute on other grounds as stated in Grand Canyon Trust v United
States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).
Endangered Species Act (ESA) (16 USCS § 1536) by its terms applies to all action by Secretary; any contract
which requires future action on his part contains an implied condition that ESA will be obeyed; strictures of ESA apply
to party with whom Secretary contracts. Conservation Law Foundation, Inc. v Andrus (1979, CA1 Mass) 623 F2d 712,
14 Envt Rep Cas 1049, 10 ELR 20067, amd on other grounds (1980, CA1) 14 Envt Rep Cas 1229.
Purpose of 16 USCS § 1536(a)(2) is to ensure that federal government does not undertake actions, such as building
dam or highway, that incidentally jeopardize existence of endangered or threatened species. Carson-Truckee Water
Conservancy Dist. v Clark (1984, CA9 Nev) 741 F2d 257, 21 Envt Rep Cas 2111, 14 ELR 20797, cert den (1985) 470
US 1083, 85 L Ed 2d 141, 105 S Ct 1842.
Congress did not intend that 16 USCS § 1536 apply to right-of-way agreement with private party finalized before
passage of ESA where federal agency currently lacks discretion to influence private activity for benefit of protected
species. Sierra Club v Babbitt (1995, CA9 Or) 65 F3d 1502, 95 CDOS 7290, 95 Daily Journal DAR 12451, 25 ELR
21539.
Because Endangered Species Act, 16 USCS §§ 1531 et seq., did not prescribe how jeopardy prong was to be determined, nor how species populations were to be estimated, it was permissible interpretation of 16 USCS § 1536(a)(2) to
rest jeopardy analysis on habitat proxy. Gifford Pinchot Task Force v United States Fish & Wildlife Serv. (2004, CA9
Wash) 378 F3d 1059, 59 Envt Rep Cas 1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387 F3d 968.
In absence of affirmative evidence showing why reliance on Northwest Forest Plan (NFP) was inadequate or incorrect, Fish and Wildlife Service could permissibly rely, in part, on projections and assumptions of NFP in its jeopardy
analysis under 16 USCS § 1536, part of Endangered Species Act, 16 USCS §§ 1531 et seq. Gifford Pinchot Task Force
v United States Fish & Wildlife Serv. (2004, CA9 Wash) 378 F3d 1059, 59 Envt Rep Cas 1110, 34 ELR 20068, amd on
other grounds (2004, CA9 Wash) 387 F3d 968.
Endangered Species Act (ESA), 16 USCS §§ 1531-1544, does not permit agencies to ignore potential jeopardy risks
by labeling parts of action "nondiscretionary"; under 50 C.F.R. § 402.03, ESA's requirements under 16 USCS § 1536
apply to all actions in which there is discretionary federal involvement or control. Nat'l Wildlife Fed'n v Nat'l Marine
Fisheries Serv. (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.
Neither Endangered Species Act, 16 USCS §§ 1531-1544, nor U.S. Supreme Court's decision in National Association of Home Builders permits agencies to ignore potential jeopardy risks by labeling parts of action nondiscretionary
for purposes of 16 USCS § 1536. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66
Envt Rep Cas 1449, 38 ELR 20099.
Agencies cannot escape obligation to comply with Endangered Species Act (ESA), 16 USCS §§ 1531-1544, merely
because they are bound to comply with another statute that has consistent, complementary objectives; as U.S. Supreme
Court emphasized in National Association of Home Builders, ESA's no-jeopardy mandate applies to every discretionary
agency action--regardless of expense or burden its application might impose; when agency, acting in furtherance of
broad Congressional mandate, chooses course of action which is not specifically mandated by Congress and which is
not specifically necessitated by broad mandate, that action is, by definition, discretionary and is thus subject to 16 USCS
§ 1536 consultation. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas
1449, 38 ELR 20099.
To be protected under 16 USCS § 1536(a)(2), species must be listed under § 1533. Wilson v Block (1983, App
DC) 228 US App DC 166, 708 F2d 735, 19 Envt Rep Cas 1201, 13 ELR 20861, cert den (1983) 464 US 956, 78 L Ed 2d
330, 104 S Ct 371 and cert den (1984) 464 US 1056, 79 L Ed 2d 197, 104 S Ct 739.
16 USCS §§ 1533(d) and 1536 require Secretary of Interior to act to ensure conservation of protected species. Defenders of Wildlife v Andrus (1977, DC Dist Col) 428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.
Goal of informal consultation and dialogue under Endangered Species Act of 1973 is to explore potential impact on
species and ways to ameliorate it; fact that draft biological assessment concludes that project may adversely affect endangered species does not prohibit agency from engaging in further study and dialogue and, based on that, reaching
opposite conclusion. New Mexico ex rel. Richardson v BLM (2006, DC NM) 459 F Supp 2d 1102, 164 OGR 347, affd in
Page 93
16 USCS § 1536
part and revd in Part on other grounds, vacated, in part on other grounds, as moot (2009, CA10 NM) 565 F3d 683, 68
Envt Rep Cas 2031, 39 ELR 20101, 170 OGR 477.
2. What constitutes "agency action"
Private actor files notice of intent (NOI) and creates storm water pollution prevention plan (SWPPP), and neither
filing of NOI nor creation of SWPPP by private contractor requires any federal action; without federal action, consultation requirements of § 7 of Endangered Species Act, 16 USCS §§ 1531 et seq., specifically 16 USCS § 1536, are not
triggered; therefore, EPA need not engage in consultation with Fish and Wildlife Service and/or National Marine Fisheries Service every time NOI is filed or SWPPP is prepared. Tex. Indep. Producers & Royalty Owners Ass'n v EPA
(2005, CA7) 410 F3d 964, 60 Envt Rep Cas 1513, 35 ELR 20131, reh den, reh, en banc, den (2005, CA7) 2005 US App
LEXIS 18825.
Endangered Species Act defines agency action as "any action authorized, funded, or carried out by such agency"
and Supreme Court gives this definition very broad scope. 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).
Environmental purpose need not be expressed in enabling statute to trigger § 7(a)(2) (16 USCS § 1536(a)(2)) of
Endangered Species Act; stated environmental purpose is not necessary if action agency otherwise has discretion to act
in such way that could benefit endangered and threatened species. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F
Supp 2d 1151, 59 Envt Rep Cas 1973.
3.--Contracts; grants
Negotiating and executing contracts constitute agency action under Endangered Species Act. Tinoqui-Chalola
Council of Kitanemuk & Yowlumne Tejon Indians v United States DOE (2000, CA9 Cal) 232 F3d 1300, 2000 CDOS
9280, 2000 Daily Journal DAR 12395, 31 ELR 20286.
Award of Clean Water Act construction grant by Environmental Protection Agency is agency action which must
conform to requirements of Endangered Species Act (16 USCS §§ 1531 et seq.); issuance of national pollutant discharge
elimination system permit by EPA is agency action which must conform to requirements of Act. Pacific Legal Foundation v Watt (1982, CD Cal) 539 F Supp 841, 17 Envt Rep Cas 1801, 13 ELR 20109, affd in part without op and revd
in part without op on other grounds, vacated, in part, without op (1983, CA9 Cal) 703 F2d 576, reported in full (1983,
CA9 Cal) 19 Envt Rep Cas 1602, 13 ELR 20392 and reh den (1983, CA9 Cal) 711 F2d 1065 and appeal after remand
sub nom Kilroy v Ruckelshaus (1984, CA9 Cal) 738 F2d 1448, 21 Envt Rep Cas 1385, 14 ELR 20774.
Agency action subject to consultation was not authorization or merits of new water service contracts, rather, it was
operation of Central Valley Project and California State Water Project under Long-Term Central Valley Project and
State Water Project Operations Criteria and Plan completed June 30, 2004 and whether those operations would cause
jeopardy to survival or recovery of winter-run Chinook, spring-run Chinook, and Central Valley steelhead; government
was entitled to make reasonable assumptions about operational volume of water flows, water levels, temperature, and
quality based on historical and projected data contained in administrative record; United States National Marine Fisheries Service was not required to analyze effects of full contract deliveries as plaintiffs contended. Pac. Coast Fed'n of
Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US Dist LEXIS 31462, Amd on other grounds, summary judgment
gr, in part, summary judgment den, in part on other grounds (2008, ED Cal) 67 Envt Rep Cas 1674, amd on other
grounds, summary judgment gr, in part, summary judgment den, in part on other grounds (2008, ED Cal) 606 F Supp 2d
1122, findings of fact/conclusions of law, request den (2008, ED Cal) 606 F Supp 2d 1195, 68 Envt Rep Cas 1234.
4.--Implementation of statutes
Environmental Protection Agency's approval under Clean Water Act of state's water quality revisions and lists of
waters that did not meet established water quality standards were agency actions for which formal consultation and biological assessment were required under 15 USCS § 1536. Sierra Club v United States EPA (2001, DC Md) 162 F Supp
2d 406, 53 Envt Rep Cas 2088.
National Flood Insurance Act, 42 USCS § 4001 et seq., conferred discretion on Federal Emergency Management
Agency (FEMA) to implement National Flood Insurance Plan (NFIP) in manner that would inure to benefit of Puget
Page 94
16 USCS § 1536
Sound Chinook salmon, with exception of part of program that dealt with actual sale of flood insurance; accordingly,
FEMA's implementation of NFIP, with exception of actual sale of flood insurance, was discretionary "agency action"
for purposes of § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act. Nat'l Wildlife Fed'n v FEMA (2004, WD
Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.
National Flood Insurance Program falls within broad definition of "agency action," to which § 7(a)(2) (16 USCS §
1536(a)(2)) of Endangered Species Act applies. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59
Envt Rep Cas 1973.
5.--Leases
Agency action entails not only leasing but leasing and all post-leasing activities through production and abandonment. Conner v Burford (1988, CA9 Mont) 848 F2d 1441, 18 ELR 21182, 100 OGR 84 (criticized in NRDC v United
States Army Corps of Eng'rs (2001, SD Fla) 31 ELR 20880).
Secretary must make comprehensive analysis of all ramifications of lease-sale under Outer Continental Shelf Land
Act (OCSLA) (43 USCS §§ 1331 et seq.) and consider all checks and balances and all mitigating measures adopted in
pursuance of OCSLA when considering whether there has been satisfaction of Endangered Species Act (16 §§ 1531 et
seq.) of mandate that no endangered life be jeopardized; such considerations may be considered "agency action" subject
to judicial review. North Slope Borough v Andrus (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).
6.--Letters and other communications
Fish and Wildlife Service's letter of concurrence giving its opinion that planned timber operations would not likely
result in "take" of spotted owl was not "agency action" under 16 USCS § 1536 where Service stated in letter that concurrence did not constitute approval of plan and where no federal agency discretion was involved. Marbled Murrelet v
Babbitt (1997, CA9 Cal) 111 F3d 1447, 97 CDOS 2847, 97 Daily Journal DAR 5029, 44 Envt Rep Cas 1126, 27 ELR
21141.
Indian tribe was not entitled to summary judgment on its claim that Forest Service violated Endangered Species Act
(ESA), 16 USCS § 1536(a)(2), because Forest Service's determination that mining operation was not likely to cause
significant disturbance of surface resources was not authorization of subsequent mining activities such that entire Notice
of Intent review process constituted federal action within meaning of ESA. Karuk Tribe of Cal. v United States Forest
Serv. (2005, ND Cal) 379 F Supp 2d 1071, 61 Envt Rep Cas 1100.
Because United States Forest Service's issuance of 16 USCS § 1536(d) determination qualified as affirmative
"agency action" under 16 USCS § 1536(a)(2), court had authority to issue injunction after reinitiation of consultation to
prohibit activities that potentially violated ESA during consultation process; court prohibited all snowmobiling and
snowmobile trail grooming within designated caribou recovery area inside Idaho Panhandle National Forest until completion of formal consultation. Defenders of Wildlife v Martin (2006, ED Wash) 454 F Supp 2d 1085, 64 Envt Rep Cas
1337, summary judgment gr, claim dismissed, claim allowed, injunction gr (2007, ED Wash) 2007 US Dist LEXIS
13061.
7.--Orders
FERC's rejection of petition to initiate consultation, pursuant to 16 USCS § 1536, with National Marine Fisheries
Service was not order of Commission and, therefore, not reviewable. American Rivers v FERC (1999, CA9) 170 F3d
896, 99 CDOS 1895, 99 Daily Journal DAR 2427, 29 ELR 21053.
Decision of FDA that it could not take regulatory action over genetically engineered ornamental fish was not type
of agency action that would trigger additional reporting requirements by FDA under Endangered Species Act. Int'l Ctr.
for Tech. Assessment v Thompson (2006, DC Dist Col) 421 F Supp 2d 1.
8.--Permits
National Marine Fisheries Service's issuance of fishing permits to boats allowing fishing on high seas clearly constitutes "agency action" sufficient to trigger protections of Endangered Species Act. Turtle Island Restoration Network v
Nat'l Marine Fisheries Serv. (2003, CA9 Cal) 340 F3d 969, 56 Envt Rep Cas 2067, 33 ELR 20262.
Page 95
16 USCS § 1536
EPA complied with Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., in issuing general permit for storm
water discharge without consulting with Fish and Wildlife Service and/or National Marine Fisheries Service upon receipt of notice of intent (NOI) and completion of storm water pollution prevention plan (SWPPP) because filing of NOI
and creation of SWPPP by private actor did not constitute "federal action," and, thus, did not implicate ESA's consultation requirements. Tex. Indep. Producers & Royalty Owners Ass'n v EPA (2005, CA7) 410 F3d 964, 60 Envt Rep Cas
1513, 35 ELR 20131, reh den, reh, en banc, den (2005, CA7) 2005 US App LEXIS 18825.
Where environmental organization challenged permit granting right-of-way across federal lands to water diversion
structure on ground that U.S. Forest Service failed to update its assessment of impacts on endangered species, Service
did not retain ability to reconsider permit based on newly listed species or newly designated critical habitat, and thus
Service was not required to update its assessment. Forest Guardians v United States Forest Serv. (2004, DC Ariz) 370 F
Supp 2d 978.
9.--Planning documents
Land and Resource Management Plans (LRMP) were framework for making later project decisions rather than collection of project decisions, and standards, guidelines, policies, criteria, land designations, and like appearing within
LRMP did not constitute "action" requiring consultation under 16 USCS § 1536(a)(2); instead, activities or programs
authorized, funded, or carried out, by U.S. Forest Service were "action" of which § 1536(a)(2) spoke; therefore, because
groups had not alleged any activity, project, or program authorized, funded, or carried out by Forest Service that constituted "action" within § 1536(a)(2), Forest Service had no duty to consult with Fish and Wildlife Service, and district
court's dismissal of request for mandatory injunctive relief was affirmed. Forest Guardians v Forsgren (2007, CA10
NM) 478 F3d 1149, 64 Envt Rep Cas 1225, 37 ELR 20053.
Although U.S. Bureau of Land Management (BLM) argued that it simply completed supplemental environmental
analysis occasioned by prior resource management plan to open wilderness area to oil and gas drilling, finding of no
significant environmental impact was final agency action which required prior conferral with U.S. Fish and Wildlife
Service since prior status quo was deferral of additional leasing and environmental finding was decision to depart from
that policy. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.
10.--Other particular actions
District court erred in granting summary judgment for environmental organizations in their action seeking to compel Bureau of Land Management (BLM) to initiate consultation under 16 USCS § 1536(a)(2), part of Endangered Species Act, 16 USCS §§ 1531 et seq., in relation to water diversions in central Idaho; BLM's failure to regulate certain
vested rights-of-way held by private landowners to divert water for irrigation uses did not constitute "action authorized,
funded, or carried out" by BLM so as to require consultation pursuant to 16 USCS § 1536(a)(2) because duty to consult
was triggered only by affirmative actions; further, BLM's determination to limit its power to regulate rights-of-way that
vested prior to enactment of Federal Land Policy Management Act, 43 USCS §§ 1701 et seq., did not constitute ongoing
agency action. W. Watersheds Project v Matejko (2006, CA9 Idaho) 456 F3d 922, 62 Envt Rep Cas 2009, 36 ELR
20144, amd on other grounds, reh den (2006, CA9 Idaho) 468 F3d 1099 and reprinted as amd (2006, CA9 Idaho) 468
F3d 1099.
Federal Emergency Management Agency (FEMA) has discretion to consider endangered and threatened species in
its administration of National Flood Insurance Plan under National Flood Insurance Act of 1968, 42 USCS §
4022(b)(1)(b); thus, FEMA's failure to do so with respect to providing flood insurance in county within Florida keys
that was critical habitat for 10 listed species violated Endangered Species Act, 16 USCS § 1536(a)(2), and was judicially reviewable. Fla. Key Deer v Paulison (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21
FLW Fed C 515.
Policy of Forest Service leaving regulation of game "baiting" on National Forest System lands to states in which
lands lie does not constitute "major federal action" triggering environmental impact statement requirement. Fund for
Animals v Thomas (1997, App DC) 326 US App DC 412, 127 F3d 80, 28 ELR 20196.
Claim of nonprofit environmental groups, seeking declaratory and injunctive relief on grounds that U.S. Forest
Service (USFS) violated Endangered Species Act (ESA) by failing to engage in consultations with National Marine
Fisheries Service (NMFS) on two Land Resource Management Plans (LRMPs) for forests regarding effect of LRMPs
on threatened chinook salmon, is granted summarily, where LRMPs set forth standards and guidelines for modification
of, and multiple use of resources within, listed species habitat, because LRMPs constitute agency actions which are being and will be applied to areas in which listed chinook are present, so USFS must apply 3-step consultation procedure
Page 96
16 USCS § 1536
set forth in ESA to LRMPs. Pacific Rivers Council v Robertson (1993, DC Or) 854 F Supp 713, affd in part and revd in
part on other grounds, remanded (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt
Rep Cas 1078, 24 ELR 21367, injunction gr, in part (1994, DC Or) 1994 US Dist LEXIS 21351 and cert den (1995) 514
US 1082, 115 S Ct 1793, 131 L Ed 2d 721, 40 Envt Rep Cas 1896 and (criticized on other grounds in Nat'l Wildlife
Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973) and (criticized on other grounds in Forest Guardians v Forsgren (2007, CA10 NM) 478 F3d 1149, 64 Envt Rep Cas 1225, 37 ELR 20053).
Federal Emergency Management Agency (FEMA) had to consult on its minimum eligibility criteria that was related to National Flood Insurance Act, 42 USCS §§ 4001 et seq., because FEMA had discretion to amend its regulations
and because those regulations had ongoing impact on use of floodplains. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash)
345 F Supp 2d 1151, 59 Envt Rep Cas 1973.
Federal agency's authorization, funding, and use of chemical fire retardant to fight fires on national forests was
major federal action under Endangered Species Act, 16 USCS §§ 1531 et seq.; therefore, agency was required under
ESA to consult with U.S. Fish and Wildlife Service concerning agency's regular use of chemical fire retardant. Forest
Serv. Emples. for Envtl. Ethics v United States Forest Serv. (2005, DC Mont) 397 F Supp 2d 1241.
Residential programs of Department of Housing and Urban Development under 42 USCS § 1441 and Secretary of
Veterans Affairs under 38 USCS §§ 3701-3764, did not require environmental assessment under 42 USCS § 4332, or
violate Endangered Species Act, 16 USCS § 1536(a)(2), with respect to San Pedro Riparian National Conservation Area, 16 USCS § 460xx; agencies merely provided financial backing and had not engaged in agency action as defined in §
1536(a)(2). Ctr. for Biological Diversity v United States HUD (2008, DC Ariz) 541 F Supp 2d 1091, affd (2009, CA9
Ariz) 359 Fed Appx 781.
Concurrences of United States Fish & Wildlife Service and National Marine Fisheries Service in United States
Forest Service's "no effect" determination were not final agency actions and, thus, not subject to judicial review under
Administrative Procedure Act, 5 USCS §§ 701 et seq., because Forest Service's obligations, and its potential liability,
arose under Endangered Species Act, 16 USCS §§ 1531 et seq., and were not altered by concurrences. Sierra Forest
Legacy v United States Forest Serv. (2009, ND Cal) 598 F Supp 2d 1058.
Unpublished Opinions
Unpublished: Environmental groups' challenge to Federal Energy Regulatory Commission's (FERC) relicensing of
Mill Creek hydroelectric project failed because groups did not establish that FERC failed to ensure that operation of
project was not likely to jeopardize continued existence of endangered southwestern willow flycatcher as required under
Endangered Species Act (ESA); further, reinitiation of consultation was not required under 16 USCS § 1536(a)(2) because FERC was no longer engaged in agency "action" for purposes of ESA after it issued its license order. San Bernardino Valley Audubon Soc'y v FERC (2007, CA9) 242 Fed Appx 462.
11. Duty to protect endangered species, generally
Requirement under 16 USCS § 1536(a)(2) to insure no jeopardy to endangered or threatened species does not apply
to Environmental Protection Agency's approval of transfer to state of water quality permitting authority under 33 USCS
§ 1342(b), since 50 C.F.R. § 402.03 appropriately construed no-jeopardy duty to apply only to discretionary actions and
approval of transfer of permitting authority was mandatory once state met triggering criteria. Nat'l Ass'n of Home
Builders v Defenders of Wildlife (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.
16 USCS § 1536 imposes on all federal agencies mandatory obligation to insure that any action authorized, funded,
or carried out by them does not jeopardize existence of endangered species or destroy critical habitat of such species;
this duty is not fulfilled by simple recognition in environmental impact statement and administrative record that highway officials recognized and considered danger posed to endangered species, and they must take necessary steps to insure that highway project will not jeopardize species or modify its habitat. 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.
Although 1979 amendments to Endangered Species Act (16 USCS § 1536(a)(2), (g), (h)) softened obligation on
agency from requiring agency to insure species would not be jeopardized to requiring agency to insure that jeopardy is
not likely, agencies continue to be under substantive mandate to use all methods and procedures which are necessary to
Page 97
16 USCS § 1536
prevent loss of any endangered species, regardless of cost. Roosevelt Campobello International Park Com. v United
States EPA (1982, CA1) 684 F2d 1041, 17 Envt Rep Cas 2023, 12 ELR 20903.
Secretary of Interior has affirmative duty under Endangered Species Act (16 USCS §§ 1531 et seq.) to bring endangered species to point at which they may be removed from protected status; such duty is not met by promulgating
regulations which do not attack cause or causes of population depletion of species. Connor v Andrus (1978, WD Tex)
453 F Supp 1037.
Endangered Species Act (16 USCS §§ 1531 et seq.) requires Secretary to use best data available and to continue
acquiring information until affirmative finding of no jeopardy can be made; Secretary cannot defer investigations when
it is possible and necessary to undertake them; under § 1536(d), Secretary may allow projects to proceed even when
information about jeopardy is missing, as long as he ensures that no actions are taken that will have irremediable consequences. 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).
Reduction prohibited by Endangered Species Act (ESA), 16 USCS § 1536(a)(2), and 50 CFR 402.02, is reduction
of pre-agency action likelihood of survival and recovery, i.e., no deterioration of status quo, as opposed to improvement
on status quo. Cabinet Res. Group v United States Fish & Wildlife Serv. (2006, DC Mont) 465 F Supp 2d 1067.
Where plaintiff Native American and environmental organizations and their members filed suit against defendants,
Secretaries of Departments of Interior and Commerce, challenging No Surprises Rule and Permit Revocation Rule
promulgated under 16 USCS § 1539, arguing that, under decision of another circuit court, recovery-based standard had
to be applied to incidental taking permits, argument failed because other circuit's case concerned 16 USCS § 1536(a),
which was entirely different section of Endangered Species Act, and same logic could not be applied to ITPs; while
recovery-based definition of conservation was central to defining critical habitats, same could not be said for ITPs, and,
instead, specific statutory provisions of 16 USCS § 1539 demonstrated Congress did not intend ITPs to have to promote
or maintain recovery of listed species. Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31,
66 Envt Rep Cas 1286, 37 ELR 20235.
Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., authorizes Secretary of United States Department of Interior under 16 USCS § 1536(a)(1) to live trap and transplant (reintroduce) rare species, if necessary, to bring endangered or threatened species to point at which protection under ESA is no longer necessary. Defenders of Wildlife v Tuggle (2009, DC Ariz) 607 F Supp 2d 1095.
Endangered Species Act does not require EPA to consider species listed on World Wildlife Fund list, nor species
listed as "vulnerable." In re: Chukchansi Gold Resort and Casino Waste Water Treatment Plant Permit No. CA 0004009
(USEPA Environmental Appeals Board, 2009) 2009 EPA App. LEXIS 4.
12.--Duties derived from other statutes
Ninth Circuit agreed with Eighth Circuit's determination that even though EPA registered pesticides under Federal
Insecticide, Fungicide, and Rodenticide Act, it also had to comply with Endangered Species Act when threatened or
endangered species were affected. Wash. Toxics Coalition v EPA (2005, CA9 Wash) 413 F3d 1024, 60 Envt Rep Cas
1940, 35 ELR 20138, cert den (2006) 546 US 1090, 126 S Ct 1024, 163 L Ed 2d 854 and (criticized in Grand Canyon
Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).
Fish & Wildlife Service (FWS) is not required to ensure compliance with federal and state law before issuing incidental taking statement(ITS); there is no evidence that FWS has ever interpreted its regulatory definitions to impose
sweeping duty to require compliance with all laws before issuing ITS; requiring FWS to comply with all laws including
those that are completely unrelated to preservation and conservation efforts would impose enormous burden on FWS,
which is already operating with serious backlog of mandatory duties, resulting in diversion of scarce resources away
from conservation efforts. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2006, CA9 Cal) 450 F3d
930, 62 Envt Rep Cas 1873, 36 ELR 20102.
EPA approved Oregon's standards in reliance on National Marine Fisheries Service's facially arbitrary no-jeopardy
determination, notwithstanding extensive evidence in record indicating that criteria were harmful to threatened species;
accordingly, environmental organization's motion for summary judgment on ninth claim for relief was granted and EPA
was directed to promulgate temperature, intergravel dissolved oxygen, use designation, and narrative criteria that satisfied agency's obligations under § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), or issue new determination
Page 98
16 USCS § 1536
on existing criteria based on no-jeopardy finding that was reasonably supported by available evidence. Northwest Envtl.
Advocates v United States EPA (2003, DC Or) 268 F Supp 2d 1255.
13.--Duty to consult
16 USCS § 1536 duty to consult can be ongoing, and consultation must be reinitiated under certain circumstances.
Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal
DAR 7051, 53 Envt Rep Cas 2129, 31 ELR 20778.
Although Army Corps of Engineers did not deny that some activities authorized under nationwide permits (NWPs)
may have affected endangered panthers, Corps had not consulted with Fish and Wildlife Service (FWS) on four challenged nationwide permits; thus, Corps failed to comply with its obligation under 16 USCS § 1536(a)(2), part of Endangered Species Act, 16 USCS §§ 1531 et seq., to consult with FWS, and its issuance of NWPs was not in accordance
with law. Nat'l Wildlife Fed'n v Brownlee (2005, DC Dist Col) 402 F Supp 2d 1, 60 Envt Rep Cas 1111, app dismd
(2006, App DC) 2006 US App LEXIS 620.
Bureau of Reclamation had no duty to consult Fish and Wildlife Services concerning effect of All-American Canal
Lining Project on endangered species and habitat in wetlands in Mexico pursuant to § 7(a) of Endangered Species Act,
16 USCS § 1536(a), because Congress did not intend § 1536 to apply extraterritorially. Consejo de Desarrollo Economico de Mexicali v United States (2006, DC Nev) 438 F Supp 2d 1207, subsequent app, remanded on other grounds
(2007, CA9 Nev) 482 F3d 1157, 37 ELR 20078.
Fish and Wildlife Service and National Marine Fisheries Service acted arbitrarily and capriciously in deciding to
promulgate counterpart regulations at 69 Fed. Reg. 47,732, and two Services failed to comply with their mandate under
§ 7 of Endangered Species Act, 16 USCS § 1536, to insure that their actions were not likely to jeopardize listed species,
when two Services knew of substantial flaws in Environmental Protection Agency's methodologies and that these flaws
were highly likely to result in overall under-protection of listed species as compared to general consultation regulations.
Wash. Toxics Coalition v United States DOI (2006, WD Wash) 457 F Supp 2d 1158, 64 Envt Rep Cas 1280, 36 ELR
20190.
Because defendant Fish and Wildlife Service (FWS) determined that there was no suitable scrub jay habitat in intervenor developer's project area, under 16 USCS § 1536(a)(3), defendant Army Corps of Engineers was under no obligation to consult with FWS with respect to that species; plaintiff environmental groups' Endangered Species Act claim
failed. 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.
14.--Limitations on duty
While, under 16 USCS § 1536, proposed mitigation measures must insure against jeopardy to protected species if
they work as intended, while there must be rational reason to expect them to work as intended, and while they must in
fact be possible to implement, there was no requirement for Fish and Wildlife Service to ensure overall success of plan.
Am. Rivers, Inc. v United States Army Corps of Eng'rs. (2005, CA8 Minn) 421 F3d 618, 61 Envt Rep Cas 1038, 35 ELR
20173, cert den (2006) 547 US 1097, 126 S Ct 1880, 164 L Ed 2d 566 and cert den (2006) 547 US 1097, 126 S Ct 1879,
164 L Ed 2d 566, 63 Envt Rep Cas 1128 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566.
Section 7(a)(1) of Endangered Species Act, 16 USCS § 1536(a)(1), does not mention species-specific programs;
rather, EPA may reasonably interpret its § 7(a)(1) obligations to extend no further than engaging in conservation programs that benefit threatened species. Northwest Envtl. Advocates v United States EPA (2003, DC Or) 268 F Supp 2d
1255.
15.--Particular species
Because there was rational connection between facts that were found in Biological Opinion (BiOp) and choice that
was made to adopt Reasonable and Prudent Alternative (RPA), and because court must defer to special expertise of Fish
and Wildlife Service (FWS) in drafting RPAs, FWS's decision to eliminate flow changes from BiOp RPA for protected
birds was not arbitrary and capricious. Am. Rivers, Inc. v United States Army Corps of Eng'rs. (2005, CA8 Minn) 421
F3d 618, 61 Envt Rep Cas 1038, 35 ELR 20173, cert den (2006) 547 US 1097, 126 S Ct 1880, 164 L Ed 2d 566 and cert
den (2006) 547 US 1097, 126 S Ct 1879, 164 L Ed 2d 566, 63 Envt Rep Cas 1128 and cert den (2006) 547 US 1097, 126
S Ct 1879, 164 L Ed 2d 566.
Page 99
16 USCS § 1536
Where plan for irrigation project failed to show how threatened fish species was being protected in years where
there was not adequate water supply, and life span was disregarded, plan was set aside as arbitrary and capricious under
16 USCS § 1536 since there was not rational connection between facts and conclusions. Pac. Coast Fed'n of Fishermen's Ass'ns v United States Bureau of Reclamation (2005, CA9 Cal) 426 F3d 1082, 61 Envt Rep Cas 1417, 35 ELR
20215, injunction gr, on remand (2006, ND Cal) 2006 US Dist LEXIS 24893, amd on other grounds, reconsideration gr,
motion gr (2006, ND Cal) 2006 US Dist LEXIS 36894 and affd (2007, CA9 Cal) 226 Fed Appx 715, 64 Envt Rep Cas
1330.
Fish & Wildlife Service was not required to ensure compliance with federal and state law before issuing incidental
takings statement to company that sought to mine sand and gravel, pumping water from river where unarmored
threespine stickleback was known to inhabit. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2006,
CA9 Cal) 450 F3d 930, 62 Envt Rep Cas 1873, 36 ELR 20102.
Under § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), Federal Emergency Management Agency was
properly enjoined from issuing national flood insurance for new developments in suitable habitats of 10 endangered
species in particular county in Florida keys because it failed to adopt species- and location-specific conservation programs to protect endangered species. Fla. Key Deer v Paulison (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225,
38 ELR 20083, 21 FLW Fed C 515.
Army Corps of Engineers satisfied requirements of 16 USCS § 1536 where it continually consulted with Fish and
Wildlife Service as to plant species even before species was placed on endangered list and initiated propagation and
transplant activities which were partially successful. Enos v Marsh (1984, DC Hawaii) 616 F Supp 32, 22 Envt Rep
Cas 1072, affd (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep Cas 1124, 15 ELR 20853.
Environmental group's claim that Commerce Secretary violated duty under 16 USCS § 1536(a)(1) to conserve
threatened and endangered species of sea turtles is denied summarily, despite group's well-stated concern that biological
opinions and actions of federal agencies are deficient, because § 1532(3) clearly gives some measure of discretion to
agencies by requiring use of methods "necessary" to conserve species, and agencies' determination that measures set
forth in biological opinions, incidental-take statements, and emergency response plan were sufficient to satisfy their
statutory duty to conserve is rational and well supported by evidence in record. Center for Marine Conservation v
Brown (1996, SD Tex) 917 F Supp 1128, 26 ELR 21073.
Army Corps of Engineers sufficiently satisfied its obligation under 16 USCS 1536(a)(1) to carry out program for
conservation of endangered Florida panthers in its Southwest Florida Environmental Impact Statement (SWFEIS);
SWFEIS reviewed key documents pertaining to panther conservation, habitat preferences of panther, and management
activities underway to preserve preferred habitat, and SWFEIS also set forth draft review criteria for Corps to use during
permit approval process. Nat'l Wildlife Fed'n v Norton (2004, DC Dist Col) 332 F Supp 2d 170, 59 Envt Rep Cas 1576.
National marine fisheries service's use of model to help agency understand population trends of loggerhead turtles
in response to new conservation measures was not arbitrary and capricious and contrary to purposes of § 7(a)(2) of Endangered Species Act because model was based on painstaking analysis of existing literature on life cycle of loggerhead
sea turtles and bore rational relationship to reality it purported to represent. Oceana, Inc. v Evans (2005, DC Dist Col)
384 F Supp 2d 203.
Water users' Commerce Clause claim alleging that application of 16 USCS § 1536(a)(2) to delta smelt, intrastate
species, was rejected where it was rational for Congress to choose to protect all species given that loss of any one species could have triggered decline of entire ecosystem, and Endangered Species Act had strong underpinnings in market
regulation given that one of its regulatory goals was to protect monetarily valuable natural resource, i.e., planet's biodiversity. Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 663 F Supp 2d 922.
Unpublished Opinions
Unpublished: U.S. Forest Service did not violate law because it used environmental assessment instead of environmental impact statement when it reviewed proposal to construct 15-mile segment of Arizona Trail; Forest Service
took required hard look at uncertainty of impact of trail at Little Springs and project's impact on public safety and endangered species, and record supported Forest Service's finding that adverse impact on endangered Mexican spotted owl
was not significant. Wilson v Turner (2007, CA9 Ariz) 257 Fed Appx 55.
16. Biological assessment
Page 100
16 USCS § 1536
Although 16 USCS § 1536(c)(1) allows biological assessment to be undertaken as part of Federal agency's compliance with requirements of National Environmental Policy Act of 1969 (42 USCS § 4332) it does not indicate that biological assessment may substitute entirely for environmental assessment. Save the Yaak Committee v Block (1988, CA9
Mont) 840 F2d 714, 27 Envt Rep Cas 1687, 18 ELR 20608, amd on other grounds (1988, CA9 Mont) 18 ELR 20869.
In action by city against National Park Service in which city sought to enjoin NPS from implementing its Fort
Baker Plan for development and rehabilitation of former military base into national park, district court properly concluded that NPS did not violate Endangered Species Act, 16 USCS §§ 1531-1544; NPS prepared adequate biological
assessment with respect to Plan's effects on Mission Blue Butterfly and on salmonids and, although NPS did not comply
with 180-day deadline under 16 USCS § 1536(c)(1) for preparing biological assessment, city was not entitled to remedy
as result of tardiness on part of NPS because city pointed to no harm resulting from belated NPS biological assessment.
City of Sausalito v O'Neill (2004, CA9 Cal) 386 F3d 1186, 59 Envt Rep Cas 1304, 34 ELR 20121.
Record did not support nonprofit corporation's claim that U.S. Surface Transportation Board (STB) and U.S. Fish
and Wildlife Service (FWS) did not comply with § 7 of Endangered Species Act, 16 USCS § 1536, before STB granted
exemption under 49 USCS § 10502 that allowed railroad company to construct and operate seven-mile rail line from
mainline to property that was leased by company that planned to operate limestone quarry; STB and FWS conducted
appropriate studies in response to concerns that construction of line would have adverse impact on golden-cheeked warbler and certain endangered karst invertebrates, and evidence supported their conclusion that there would be no discernible impact; assessments STB and FWS conducted were not invalid because they looked at impact of rail line and
mining operations on 640 acres of 1,760-acre tract mining company leased that would be mined in "Phase One," and not
entire tract. Medina County Envtl. Action Ass'n v Surface Transp. Bd. (2010, CA5) 70 Envt Rep Cas 1673, 40 ELR
20113.
Contrary to argument of petitioner environmental association, because respondent Surface Transportation Board
found quarry could feasibly operate without rail, and trucks would be used if rail exemption were not granted, refusing
to consider proposed development of entire tract as "interrelated action" did not render decision authorizing rail arbitrary and capricious under 5 USCS § 706(2)(A) and 16 USCS § 1536(a)(2). Medina County Envtl. Action Ass'n v Surface
Transp. Bd. (2010, CA5) 602 F3d 687, amd on other grounds, petition den, motion den (2010, CA5) 70 Envt Rep Cas
1673, 40 ELR 20113.
Because all of survey evidence available to respondents, Surface Transportation Board and United States Fish and
Wildlife Service, showed that there were no listed species in proposed rail and phase one area of development, any
analysis of whether rail line and quarry activities would drive them out of that area was superfluous; thus, supplemental
documents or reports as to what would happen when species' habitat was marginalized by "edge effects" were not appropriate for supplementing agency record under Fed. R. App. P. 16(a) or 5 USCS § 706 as "best scientific and commercial data" to be considered under 16 USCS § 1536(a)(2). Medina County Envtl. Action Ass'n v Surface Transp. Bd.
(2010, CA5) 602 F3d 687, amd on other grounds, petition den, motion den (2010, CA5) 70 Envt Rep Cas 1673, 40 ELR
20113.
On challenge by petitioners, three environmental activist organizations and federally recognized tribal government
to respondent Secretary of United States Department of Interior's (DOI) Outer Continental Shelf Lands Act Leasing
Program in Alaska, because DOI's approval process was only in initial stages, its obligations under 16 USCS §
1536(a)(2) of Endangered Species Act had not yet arisen and it was not unreasonable for DOI to decide it would not
engage in any consultation concerning Program's impacts on threatened and endangered species until process reached
its later stages and claim was unripe. Ctr. for Biological Diversity v United States DOI (2009, App DC) 385 US App DC
257, 563 F3d 466, 68 Envt Rep Cas 1833, 39 ELR 20091, 170 OGR 234.
Department of Interior violated Endangered Species Act by failing to gather species and habitat data sufficient to
make informed biological assessment of effects of oil and gas leasing in National Forest area, because such failure during agency planning process creates likelihood of future conflict as development proceeds and, in effect, gives development priority over endangered species. Bob Marshall Alliance v Watt (1986, DC Mont) 685 F Supp 1514, 16 ELR
20759, affd in part and revd in part on other grounds (1988, CA9 Mont) 852 F2d 1223, 18 ELR 21152, 103 OGR 525,
cert den (1989) 489 US 1066, 103 L Ed 2d 810, 109 S Ct 1340.
Bureau of Reclamation violated 16 USCS § 1536 by failing to formally consult with National Marine Fisheries Service before implementing its annual operations plan for water diversion project, even though Bureau requested updated
species list, released final biological assessment, and requested formal consultation with Service, where it had not rendered biological assessment or obtained biological opinion concerning likely effect on threatened coho salmon, or its
Page 101
16 USCS § 1536
critical habitat, of plan that had been in effect for almost one year. Pac. Coast Fed'n of Fishermen's Ass'ns v U.S. Bureau of Reclamation (2001, ND Cal) 138 F Supp 2d 1228, judgment entered (2001, ND Cal) 2001 US Dist LEXIS 7920,
summary judgment gr, in part, summary judgment den, in part on ther grounds, remanded (2003, ND Cal) 2003 US Dist
LEXIS 13745, revd, in part on other grounds, remanded (2005, CA9 Cal) 426 F3d 1082, 61 Envt Rep Cas 1417, 35 ELR
20215, injunction gr, on remand (2006, ND Cal) 2006 US Dist LEXIS 24893, amd on other grounds, reconsideration gr,
motion gr (2006, ND Cal) 2006 US Dist LEXIS 36894 and affd (2007, CA9 Cal) 226 Fed Appx 715, 64 Envt Rep Cas
1330.
National Park Service did not violate 16 USCS § 1536(c)(1) where agency prepared draft environmental impact
statement (DEIS) addressing plan for future use of former military base after learning from U.S. Fish and Wildlife Service and National Marine Fisheries Service that threatened or endangered species were within project area and DEIS
contained elements of biological assessment, even though it could have contained more analysis on effect on salmon.
City of Sausalito v O'Neill (2002, ND Cal) 2002 US Dist LEXIS 12457.
Fish and Wildlife Service's (FWS) motion for summary judgment in favor of Army Corps of Engineers, Fish and
Wildlife Service (FWS), and National Marine Fisheries Service (NMFS) was granted on conservation center's claim that
Corps failed to comply with § 7(a)(1) of Endangered Species Act, 16 USCS §§ 1531 et seq., codified at 16 USCS §
1536(a)(1), where FWS and NMFS found that Corps' projects were not likely to jeopardize listed species, and Corps
was entitled to rely on this no jeopardy finding when carrying out its § 7(a)(1) duty to conserve listed species. San
Francisco Baykeeper v United States Army Corps of Eng'rs (2002, ND Cal) 219 F Supp 2d 1001.
Fish and Wildlife Service's (FWS) motion for summary judgment in favor of Army Corps of Engineers, Fish and
Wildlife Service (FWS), and National Marine Fisheries Service (NMFS) was granted on conservation center's claim that
Corps failed to comply with § 7(a)(2) of Endangered Species Act, 16 USCS §§ 1531 et seq., codified at 16 USCS §
1536(a)(2), where, inter alia, neither FWS nor NMFS acted arbitrarily by relying on volume of ballast water discharge
as determinative variable in their invasive species analyses, and where center did not show that FWS's and NMFS's decision was arbitrary and capricious. San Francisco Baykeeper v United States Army Corps of Eng'rs (2002, ND Cal)
219 F Supp 2d 1001.
During voluntary remand to U.S. Fish and Wildlife Service of its critical habitat designations of two endangered
species, current designations remained in force during remand because 1) substantive defect in designations did not require vacatur, and risk of harm to designated species from vacating designations outweighed considerations favoring
vacatur under Endangered Species Act's intent, as expressed in 16 USCS § 1531, due to potential prejudice from maintaining status quo, and 2) designations provided marginal benefit in reducing risk of harm to designated species from
habitat conversion pursuant to 16 USCS § 1536(a)(2). NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.
During voluntary remand to U.S. Fish and Wildlife Service (USFWS) of its critical habitat designations of two endangered species, 16 USCS §§ 1538 and 1539, California Natural Communities Conservation Programs, and special
rule under 16 USCS § 1533(d) did not replace consultation for adverse modification under 16 USCS § 1536 by USFWS.
NRDC v United States DOI (2002, CD Cal) 275 F Supp 2d 1136.
Plaintiffs' claims under Endangered Species Act failed as matter of law where Fish and Wildlife Service adequately
discharged its duty to use "the best scientific and commercial data available" in formulating its opinion, 50 C.F.R. §
402.14(g)(8), with respect to each of four endangered fish species listed in plaintiffs' complaint by providing extensive
data on species' general historical population, life cycle (including its reproductive behavior in rivers potentially affected), population dynamics, critical habitat, and current status and distribution, but where specific population estimates for
these species were not available, best estimates were acceptable. Hammond v Norton (2005, DC Dist Col) 370 F Supp
2d 226, 60 Envt Rep Cas 1543, 35 ELR 20100, 161 OGR 672, motion gr, in part, motion den, in part on other grounds,
motion den, remanded (2006, DC Dist Col) 448 F Supp 2d 114.
Having determined that endangered species was in area in which it was issuing limestone mining permits, defendant U.S. Army Corps of Engineers should have done Biological Assessment (BA) under 16 USCS § 1536(c)(1) and engaged in formal consultation under § 1536(b)(3)(A) and remand was appropriate because instead, Corps had not prepared or supervised preparation of BA, failed to initiate formal consultation with defendant U.S. Fish and Wildlife Service (FWS) on number of occasions, and relied on FWS's determination that wood stork would not be adversely affected by destruction of thousands of acres of wetlands. Sierra Club v Flowers (2006, SD Fla) 423 F Supp 2d 1273, 62 Envt
Rep Cas 1265, 19 FLW Fed D 483, vacated, remanded (2008, CA11 Fla) 526 F3d 1353, 66 Envt Rep Cas 1904, 38 ELR
20113, 21 FLW Fed C 671, on remand, summary judgment gr, summary judgment Den on other grounds, judgment
entered (2009, SD Fla) 709 F Supp 2d 1254, 39 ELR 20024, affd (2010, CA11 Fla) 362 Fed Appx 100, 40 ELR 20025.
Page 102
16 USCS § 1536
Bureau of Reclamation acted properly under 16 USCS § 1536(a) in consulting with Fish and Wildlife Services
(FWS) to determine whether All-American Canal Lining Project would affect Peirson's milk-vetch pursuant to 16 USCS
§ 1536(b)(3)(A) and in obtaining written statement from FWS pursuant to 16 USCS § 1536(b)(4). Consejo de Desarrollo Economico de Mexicali v United States (2006, DC Nev) 438 F Supp 2d 1207, subsequent app, remanded on other
grounds (2007, CA9 Nev) 482 F3d 1157, 37 ELR 20078.
Two wildlife federations successfully enjoined federal agencies from proceeding with aquifer improvement project
that required pumping water out of river in national wildlife refuge; under Endangered Species Act, agencies failed to
adequately identify extent of critical habitat required by endangered ivory-billed woodpecker and, therefore, their decision to go ahead with project lacked rational basis for concluding that woodpecker's survival would not be jeopardized.
Nat'l Wildlife Fed'n v Harvey (2006, ED Ark) 440 F Supp 2d 940, 63 Envt Rep Cas 1531.
Given potential indirect effects on listed species of U.S. Department of Agriculture's (USDA) 2005 Rule, combined
with USDA's lack of documentation in support of their "no effect" determination, failure to consult and/or prepare any
type of biological analysis in conjunction with 2005 Rule was arbitrary and capricious. Citizens for Better Forestry v
United States Dep't of Agric. (2007, ND Cal) 481 F Supp 2d 1059.
Environmental assessment (EA) by U.S. Bureau of Land Management (BLM) and memorandum of informal consultation with U.S. Fish and Wildlife Service contained sufficient information to constitute biological assessment under
16 USCS § 1536(c)(1) with regard to opening wilderness area for oil and gas drilling; memorandum confirmed presence
of threatened species and discussed characteristics of its habitat, and EA contemplated amount of land that each active
well would affect, noted direct and indirect environmental effects that result from development, and specifically contemplated alternatives and mitigation measures to protect threatened species. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.
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), (o)(2), 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's 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.
United States Forest Service's proposed amendment to management indicator species monitoring scheme did not
violate Endangered Species Act, 16 USCS §§ 1531 et seq., where although biological assessment included legally invalid argument, as whole, assessment justified conclusion that amendment would have had no effect on listed species, and
as result, Forest Service was not required to consult with United States Fish and Wildlife Service or National Marine
Fisheries Service. Sierra Forest Legacy v United States Forest Serv. (2009, ND Cal) 652 F Supp 2d 1065.
17. Biological opinion
No exception exists in Endangered Species Act to effect that federal agency may be excused from completing
comprehensive biological opinion before initiation of agency action if, in its judgment, there is insufficient information
available to complete comprehensive opinion and it takes upon itself incremental-step consultation. Conner v Burford
(1988, CA9 Mont) 848 F2d 1441, 18 ELR 21182, 100 OGR 84 (criticized in NRDC v United States Army Corps of
Eng'rs (2001, SD Fla) 31 ELR 20880).
Issuance by Fish and Wildlife Service of Biological Opinion, as well as accompanying Incidental Take Statement,
pursuant to 16 USCS § 1536(b) of Endangered Species Act (16 USCS §§ 1531 et seq.) are considered final agency actions for purposes of Administrative Procedure Act (5 USCS §§ 551 et seq.). Ariz. Cattle Growers' Ass'n v United States
Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt
Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt
Rep Cas 1146).
In action that challenged National Marine Fisheries Service's (NMFS) biological opinion under Endangered Species
Act, 16 USCS § 1536, district court did not exceed scope of its authority in issuing remand order; remand order's requirement that NMFS provide "failure report" to district court was reasonable combination of time limit and progress
reports, which was appropriate under circumstances of case, and requiring consultation with states and Indian tribes
Page 103
16 USCS § 1536
constituted permissible procedural restriction rather than impermissible substantive restraint. Nat'l Wildlife Fedn v Nat'l
Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099.
In case arising under Endangered Species Act of 1973 (Act), 16 USCS §§ 1531 et seq., in which Native American
tribe (Tribe) appealed district court's entry of summary judgment in favor of U.S. Fish & Wildlife Service (Service),
Tribe unsuccessfully argued that Service's 2006 biological opinion was not in accordance with law because it failed to
follow proper procedures, which required using best available scientific data; while 2006 biological opinion's predictions did differ from those of some scientists who had studied Everglade Snail Kite, basic data was not in dispute and
was taken into account by Service when it drafted opinion; that was all that Act required Service to do with best scientific and commercial data available. Miccosukee Tribe of Indians v United States (2009, CA11 Fla) 566 F3d 1257, 68
Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.
In case arising under Endangered Species Act of 1973, 16 USCS §§ 1531 et seq., in which Native American tribe
(Tribe) appealed district court's entry of summary judgment in favor of U.S. Fish & Wildlife Service (Service), Tribe
unsuccessfully argued that Service's 2006 biological opinion was not in accordance with law because it failed to follow
proper procedures, which required giving benefit of doubt to species; need to give species benefit of doubt could not
stand alone as challenge to biological opinion. Miccosukee Tribe of Indians v United States (2009, CA11 Fla) 566 F3d
1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.
Because only 2001 biological opinion (B.O.) and 2002 B.O. had been issued when environmental groups filed their
third amended complaint, their pleadings were interpreted as directed at 2001 B.O. and 2002 B.O, but after third
amended complaint, U.S. Fish and Wildlife Service (FWS) issued 2003 B.O., which superseded both of them; FWS's
issuance of 2003 B.O. mooted prayer for both injunctive and declaratory relief. Rio Grande Silvery Minnow v Bureau of
Reclamation (2010, CA10 NM) 601 F3d 1096, 70 Envt Rep Cas 1577, 40 ELR 20128.
U.S. Fish and Wildlife Service's (FWS) biological opinion that city's proposed project would not have resulted in
adverse modification or destruction of critical habitat for endangered and threatened species was neither arbitrary nor
capricious because (1) FWS did not apply definition of "adverse modification" that ignored value of critical habitat for
recovery of affected species; (2) FWS's determination that critical habitat would have been destroyed was not inconsistent with its finding of no adverse modification; (3) neither Endangered Species Act, 16 USCS §§ 1531 et seq., nor its
implementing regulations required that FWS calculate rate of loss; and (4) applying proper definition of "adverse modification," FWS reasonably concluded that effects of proposed project would not have appreciably diminished value of
species' critical habitat. Butte Envtl. Council v United States Army Corps of Eng'Rs (2010, CA9 Cal) 607 F3d 570, 40
ELR 20144, amd on other grounds (2010, CA9 Cal) 620 F3d 936 and reprinted as amd (2010, CA9 Cal) 71 Envt Rep
Cas 1417.
Environmental organizations were entitled to summary judgment on their claim that U.S. Forest Service (USFS)
acted arbitrarily and capriciously under 5 USCS § 706(2)(A) and failed to fulfill its duties under 16 USCS § 1536(a)(2)
by issuing cattle grazing authorizations in national forest on biological opinion that USFS knew was based on inaccurate
information. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.
United States Forest Service (USFS) was entitled to summary judgment on claim by grazing allotment permittees
who alleged that USFS violated Endangered Species Act, 16 USCS §§ 1531 et seq., by arbitrarily limiting grazing in
Malheur National Forest; USFS did not violate requirement under 16 USCS § 1536(a)(2) to utilize best available science because it did not ignore any relevant biological information in concluding that livestock grazing can adversely
affect protected steelhead trout. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.
Environmental groups were entitled to summary judgment on their claim that National Marine Fisheries Service violated Endangered Species Act, 16 USCS §§ 1531 et seq., when it concluded that Army Corps of Engineers' continued
operation of two dams on Yuba River would not jeopardize populations of threatened fish; biological opinion under 16
USCS § 1536 was arbitrary and capricious under 5 USCS § 706(2)(A) because it failed to provide rational connection
between facts and conclusion that project would not adversely modify critical habitat. South Yuba River Citizens League
v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED
Cal) 2010 US Dist LEXIS 125403.
Environmental groups were entitled to summary judgment on their claim that National Marine Fisheries Service violated Endangered Species Act, 16 USCS §§ 1531 et seq., when it concluded that Army Corps of Engineers' continued
operation of two dams on Yuba River would not jeopardize populations of threatened fish; biological opinion under 16
USCS § 1536 was arbitrary and capricious under 5 USCS § 706(2)(A) because it failed to provide rational connection
Page 104
16 USCS § 1536
between factual determination that project would perpetuate unmitigated stressors and conclusion that stressors would
not jeopardize listed fish, failed to explain how species would be able to tolerate combination of project's impacts and
adverse effects anticipated to result from proposed water diversion project, and failed to consider important aspects of
problem. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.
Ethics organization was entitled to summary judgment in its action against Fish and Wildlife Service (FWS) under
Endangered Species Act, which arose from FWS's consultation with U.S. Forest Service with regard to use of chemical
fire retardant to fight forest fires; FWS's biological opinion under 16 USCS § 1536 was arbitrary and capricious under 5
USCS § 706(2)(A) because it relied upon reasonable and prudent alternative that imposed no true restrictions on use of
aerially-applied fire retardant and thus did not avoid jeopardy and destruction/adverse modification of critical habitat.
Forest Serv. Emples. v United States Forest Serv. (2010, DC Mont) 726 F Supp 2d 1195.
Interior Board of Land Appeals does not have authority to review merits of biological opinions issued by Fish and
Wildlife Service (FWS) under 16 USCS § 1536; although Board has no jurisdiction to set aside or "second-guess" biological opinion determinations made by FWS, Board may review party's objections as they relate to compliance or consistency with policy determinations. Southern Utah Wilderness Alliance (2000) 152 IBLA 216.
Department of Interior Office of Hearings and Appeals lacks authority to review merits of biological opinion issued
by Fish and Wildlife Service under 16 USCS § 1536; administrative review authority delegated to Interior Board of
Land Appeals encompasses decisions made by BLM, but does not include review of findings or decisions made by Fish
and Wildlife Service, however, Board may look at biological opinion to determine for itself that opinion contains findings and conclusions on which BLM relies in its decision. Native Ecosystems Council (2004) 160 IBLA 288.
Department of Interior Office of Hearings and Appeals lacks authority to review merits of biological opinion issued
by Fish and Wildlife Service under 16 USCS § 1536; administrative review authority delegated to Interior Board of
Land Appeals encompasses decisions made by BLM, but does not include review of findings or decisions made by Fish
and Wildlife Service, however, Board may look at biological opinion to determine for itself that opinion contains findings and conclusions on which BLM relies in its decision. Native Ecosystems Council (2004) 160 IBLA 288.
18.--Contents of opinion
Agency is not required to adopt reasonable and prudent alternatives to agency proposals, as suggested in biological
opinion issued by service having jurisdiction over relevant endangered species, but if Secretary of Interior deviates from
them, he does so subject to risk that he has not satisfied standard of § 1536(a)(2). Tribal Village of Akutan v Hodel
(1988, CA9 Alaska) 19 ELR 20071, 101 OGR 453, cert den (1989) 493 US 873, 107 L Ed 2d 157, 110 S Ct 204.
National Marine Fisheries Service fulfilled its responsibilities under Endangered Species Act when it supported its
"no jeopardy" finding with ample data and analysis, sought recommendations of other organizations, and premised its
measures on reasonable evaluation of available data. Greenpeace Action v Franklin (1992, CA9 Wash) 982 F2d 1342,
92 CDOS 10377, 92 Daily Journal DAR 17505, 35 Envt Rep Cas 2054, 23 ELR 20639, amd on other grounds, reh, en
banc, den (1992, CA9 Wash) 93 CDOS 7436, reported in full (1992, CA9 Wash) 14 F3d 1324, 93 Daily Journal DAR
12665.
In action by environmental organizations challenging biological opinion issued by National Marine Fisheries Service (NMFS) pursuant to 16 USCS § 1536 district court's remand order to NMFS did not exceed scope of its authority;
"failure report" requirement was reasonable combination of time limit and progress reports, and collaboration requirement was justified both as reasonable means to ensure that NMFS complied with Act's mandate that agencies use best
scientific and commercial date available in their decision-making under 16 USCS § 1536(a)(2) and as reasonable procedural restriction given history of litigation. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2007, CA9 Or) 481
F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.
"Incidental taking" statement need not be included in biological opinions on interim management plan of National
Park Service that provides for continued operation of certain campground in national park that is in habitat of grizzly
bear, which is endangered species, under 16 USCS § 1536(b)(4), where no incidental takings of bears are anticipated as
result of plan. National Wildlife Federation v National Park Service (1987, DC Wyo) 669 F Supp 384.
Because defendant Fish & Wildlife Service's biological opinion was aimed at conservation, it satisfied 16 USCS §
1536(a)(1)'s requirements and thus, plaintiff Indian Tribe's challenge under Endangered Species Act failed on summary
judgment. Miccosukee Tribe of Indians of Fla. v United States (2007, SD Fla) 528 F Supp 2d 1317, affd in part and revd
Page 105
16 USCS § 1536
in part on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW
Fed C 1780.
Examination of statutory language under 16 USCS § 1536 of Endangered Species Act, consultation regulations, and
Consultation Handbook, coupled with legislative history, establishes that no express language mandates that first three
definitional elements of Reasonable and Prudent Alternative under 50 USCS § 402.02 be discussed on face of Biological Opinion (BiOp), as opposed to administrative record supporting BiOp. Delta Smelt Consol. Cases v Salazar (2009,
ED Cal) 666 F Supp 2d 1137, 71 Envt Rep Cas 1055, summary judgment den, motion to strike den (2009, ED Cal)
2009 US Dist LEXIS 101794.
19.----No-jeopardy finding
National Marine Fisheries Service's (NMFS) clear findings prior to infusion of political pressures from EPA during
review process indicated that no-jeopardy finding was unwarranted and unsupported by evidence; accordingly, environmental organization's motion for summary judgment on tenth claim for relief was granted, and NMFS was ordered to
withdraw its biological opinion and reinitiate consultation and issue new opinion. Northwest Envtl. Advocates v United
States EPA (2003, DC Or) 268 F Supp 2d 1255.
Fish and Wildlife Service's no jeopardy finding in biological opinion relating to spikedace and loach minnow was
proper as it considered relevant factors and concluded that reductions in cattle numbers and seasons of use, and removal
of cattle from main stem rivers prevented jeopardizing continued existence of fish under 16 USCS § 1536(a)(2); further,
decision complied with Administrative Procedure Act, 5 USCS §§ 701 et seq., where determination was not error of
judgment and agency was entitled to deference as to its interpretation of its regulations on issue under 50 C.F.R. §
402.02. Forest Guardians v Veneman (2005, DC Ariz) 392 F Supp 2d 1082.
In action by plaintiff environmental groups, Biological Opinion issued under § 7 of Endangered Species Act, 16
USCS § 1536(a)(2), based upon expert data analysis of experiment conducted by defendant National Marine Fisheries
Service (NMFS), was not arbitrary and capricious; with respect to no jeopardy finding concerning loggerhead sea turtles, NMFS relied upon abundance of reliable information, including data demonstrating that interactions with loggerheads were typically in juvenile age class rather than breeding females, that nesting subpopulations were not in decline,
and when compared against one particular fishing hook, another hook actually improved post-mortem survival rates
because it was generally not swallowed and, therefore, more of other hooks could be removed without fatality. Ocean
Conservancy v Gutierrez (2005, DC Dist Col) 394 F Supp 2d 147, 35 ELR 20208, dismd, in part (2006, App DC) 2006
US App LEXIS 18596 and affd (2007, App DC) 376 US App DC 324, 488 F3d 1020, 64 Envt Rep Cas 1577, 37 ELR
20124.
20.----Incidental take statement
Incidental Take Statement (16 USCS § 1536(b)(4)) must be predicated on finding of incidental take. Ariz. Cattle
Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily
Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont)
565 F Supp 2d 1160, 68 Envt Rep Cas 1146).
Issuance by Fish and Wildlife Service of Biological Opinion, as well as accompanying Incidental Take Statement,
pursuant to 16 USCS § 1536(b) of Endangered Species Act (16 USCS §§ 1531 et seq.) are considered final agency actions for purposes of Administrative Procedure Act (5 USCS §§ 551 et seq.). Ariz. Cattle Growers' Ass'n v United States
Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt
Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt
Rep Cas 1146).
Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565
F Supp 2d 1160, 68 Envt Rep Cas 1146).
Absent rare circumstances, it is arbitrary and capricious to issue Incidental Take Statement when Fish and Wildlife
Service has no rational basis to conclude that take will occur incident to otherwise lawful activity. Ariz. Cattle Growers'
Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal
DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F
Supp 2d 1160, 68 Envt Rep Cas 1146).
Page 106
16 USCS § 1536
Fish and Wildlife Service is not required to provide Incidental Take Statement whenever it issues Biological Opinion. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS
10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v
Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146).
Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565
F Supp 2d 1160, 68 Envt Rep Cas 1146).
Absent rare circumstances, it is arbitrary and capricious to issue Incidental Take Statement when Fish and Wildlife
Service has no rational basis to conclude that take will occur incident to otherwise lawful activity. Ariz. Cattle Growers'
Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal
DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F
Supp 2d 1160, 68 Envt Rep Cas 1146).
No matter what kind of limitation U.S. Fish & Wildlife Service (FWS) chooses to place in Incidental Take Statement, it cannot be so indeterminate as to prevent Take Statement from contributing to monitoring of incidental take by
eliminating its trigger function. Or. Natural Res. Council v Allen (2007, CA9 Or) 476 F3d 1031, 64 Envt Rep Cas 1033,
37 ELR 20048.
In case arising under Endangered Species Act of 1973 (Act), 16 USCS §§ 1531 et seq., in which Native American
tribe (Tribe) appealed district court's entry of summary judgment in favor of U.S. Fish & Wildlife Service (Service),
Tribe successfully argued that Services' incidental take statement was deficient because it improperly quantified incidental take in terms of habitat markers and failed to provide meaningful trigger for re-consultation; incident take statement had to be modified as it did not contain adequate trigger for re-consultation, and that trigger had to be expressed in
population terms unless it was impractical to do so. Miccosukee Tribe of Indians v United States (2009, CA11 Fla) 566
F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.
Defendant federal officials did not show that it would have been impractical to have included Incidental Take
Statement in biological opinion specifying amount of extent of incidental take under 16 USCS § 1536(a)(2), 50 C.F.R. §
402.14(i)(1), when approving United States Navy's peacetime use of low frequency sonar system. Nat'l Res. Def. Council v Evans (2002, ND Cal) 232 F Supp 2d 1003, summary judgment gr, in part, summary judgment den, in part,, injunction gr (2003, ND Cal) 364 F Supp 2d 1083, motion to strike den, in part, motion to strike gr, in part (2003, ND
Cal) 2003 US Dist LEXIS 20394 and app dismd (2006, CA9 Cal) 457 F3d 904.
Conservation groups were entitled to summary judgment in their action against U.S. Fish and Wildlife Service
(FWS), National Marine Fisheries Service (NMFS), and U.S. Forest Service (USFS), for alleged violations of agencies'
responsibilities under Endangered Species Act (ESA), 16 USCS §§ 1531 et seq.; FWS and NMFS did not act in accordance with law for purposes of 5 USCS § 706(2)(A) when they failed to issue incidental take statements with their
biological opinions under 16 USCS § 1536(b)(4) on USFS's revised forest plans for four southern California national
forests under 16 USCS § 1604 of National Forest Management Act. Ctr. for Biological Diversity v United States Fish &
Wildlife Serv. (2009, ND Cal) 623 F Supp 2d 1044, 70 Envt Rep Cas 1279.
Federal agencies were not entitled to Fed. R. Civ. P. 12(b)(1) dismissal of claim by environmental groups that federal agency was liable for violation of Endangered Species Act's "take" provision under 16 USCS § 1538 based on its
failure to comply with terms of Incidental Take Statement (ITS) that was issued pursuant to 16 USCS § 1536(b)(4);
notwithstanding 16 USCS § 1540(g)'s implied exclusion of suits alleging permit violations, groups' allegation of violation of § 1538(a) was not precluded by fact that it also turned on alleged violation of ITS, which was in some sense
permit. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2009, ED Cal) 629 F Supp 2d 1123, 70 Envt
Rep Cas 1054.
Environmental group was entitled to summary judgment on its claim that forest projects caused unauthorized "take"
of grizzly bears in violation of 16 USCS § 1538(a); take was occurring in areas outside bear recovery zone that was
subject to incidental take statement under 15 USCS § 1536(b) and, therefore, take could not be exempted under §
1536(o)(2). Alliance for Wild Rockies v Bradford (2010, DC Mont) 720 F Supp 2d 1193.
In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies
were not entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of
Page 107
16 USCS § 1536
Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); genuine disputes remained as to whether Corps violated
terms and conditions imposed by ITS. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal)
723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.
In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies
were entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); groups offered no authority to support their proposition that
ITS might be void ab initio. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F
Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.
Ethics organization was entitled to summary judgment in its action against Fish and Wildlife Service and National
Marine Fisheries Service under Endangered Species Act where agencies failed to include incidental take statements
(ITS) under 16 USCS § 1536 in their biological opinions related to U.S. Forest Service's use of chemical fire retardants
to fight forest fires; agencies found jeopardy and/or adverse modification and issued reasonable and prudent alternatives, and agencies could not justify their failure to issue ITSs by promising to evaluate all actual uses of fire retardant
during emergency consultation. Forest Serv. Emples. v United States Forest Serv. (2010, DC Mont) 726 F Supp 2d
1195.
21.--Forest management
It matters not if there is worthwhile and possibly suitable habitat outside of designated "critical habitat;" what matters to Congress, and what must matter to agency, is to protect against loss or degradation of designated "critical habitat" itself; thus, Fish and Wildlife Service's finding that loss of critical habitat was not "adverse modification" because
of existence of suitable external habitat was arbitrary and capricious and was contrary to law; therefore, critical habitat
analysis in six biological opinions was fatally flawed because it impermissibly substituted late successional reserves in
Northwest Forest Plan for critical habitat and, on remand, trial court was directed to grant summary judgment to environmental organizations on critical habitat inquiry. Gifford Pinchot Task Force v United States Fish & Wildlife Serv.
(2004, CA9 Wash) 378 F3d 1059, 59 Envt Rep Cas 1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387
F3d 968.
Fish and Wildlife Service's biological opinion on forest management plan pursuant to Endangered Species Act (16
USCS §§ 1531 et seq.) (ESA) was adequate, where Plan was broad and programmatic in nature, did not authorize site
specific development and envisioned future ESA evaluation at development stage, and contained standards concerning
factors necessary for protection of endangered species, since opinion properly focused on those standards, and more
specific evaluation proposed of impacts is impossible since site specific activities have not yet been proposed. Swan
View Coalition v Turner (1992, DC Mont) 824 F Supp 923, 36 Envt Rep Cas 1643, 24 ELR 20318, remanded (1998,
CA9 Mont) 1998 US App LEXIS 11757.
In making determinations that federal timber sales would not jeopardize survival of trout and salmon species, National Marine Fisheries Service acted in arbitrary and capricious manner in measuring aquatic conservation strategy
compliance only at watershed level, rather than at project or site level, in failing to evaluate short term effects, and failing to fully incorporate watershed recommendations into its strategy, where employing long-term/watershed approach
in making jeopardy determinations, Service virtually guaranteed that no timber sale ever would be found to jeopardize
continued existence of fish species, and by failing to require action agencies to rely on and adequately incorporate watershed analysis into their biological opinions, as required by 16 USCS § 1536, Service allowed agencies to ignore best
scientific information available. Pacific Coast Fed'n of Fishermen's Ass'n v National Marine Fisheries Serv. (1999, WD
Wash) 71 F Supp 2d 1063, 49 Envt Rep Cas 1527.
Forest Service was obligated to insure that timber sales were not likely to jeopardize continued existence of endangered species, bull trout, under 16 USCS § 1536(a)(2), and district court enjoined timber sale pending further development of biological opinion by U.S. Fish and Wildlife Service. Cascadia Wildlands Project v United States Fish & Wildlife Serv. (2002, DC Or) 219 F Supp 2d 1142, 33 ELR 20020 (criticized in Sierra Forest Legacy v United States Forest
Serv. (2009, ND Cal) 598 F Supp 2d 1058).
Environmental group was entitled to summary judgment on its claim that U.S. Forest Service (USFS) violated 16
USCS § 1536, in concluding that forest projects were not likely to adversely affect grizzly bears; conclusion that helicopter logging would not adversely affect bears was arbitrary and capricious under 5 USCS § 706(2)(A) because USFS
did not articulate rational connection between nature and extent of helicopter logging and determination that logging
Page 108
16 USCS § 1536
was not likely to adversely affect grizzly bears. Alliance for Wild Rockies v Bradford (2010, DC Mont) 720 F Supp 2d
1193.
22.--Grazing rights
Where interest groups challenged United States Forest Service's (Service) cattle grazing reduction scheme for
Apache-Sitgreaves National Forest, groups' claim that 16 USCS § 1536 was violated was moot because Service issued
clarified decision notice stating that it would issue temporary grazing permits only where consistent with policy and
purpose of temporary grazing permits set forth in governing regulations, thus curing prior inappropriate decision notice.
Forest Guardians v United States Forest Serv. (2003, CA9 Ariz) 329 F3d 1089, 2003 CDOS 4398, 2003 Daily Journal
DAR 5658, 33 ELR 20205.
Bureau of Land Management (BLM) failed to comply with 16 USCS § 1536 in adopting amended regulations that
decreased public involvement in public lands management, limited BLM's enforcement powers, and increased ranchers'
ownership rights to improvements and water on public lands; BLM did not consult with Fish and Wildlife Service despite evidence that listed species and their habitats might be affected. Western Watersheds Project v Kraayenbrink
(2010, CA9 Idaho) 620 F3d 1187, 71 Envt Rep Cas 1449, 40 ELR 20235.
Environmental organizations were entitled to summary judgment on their claim that U.S. Forest Service (USFS)
violated Endangered Species Act, 16 USCS §§ 1531 et seq., in its management of grazing on public lands supporting
threatened steelhead trout in Malheur National Forest; USFS failed to reinitiate consultation under 16 USCS § 1536
following exceedance of its incidental take statement during two grazing seasons, and USFS violated § 1536(d) when it
authorized grazing in third season absent § 1536(d) letters on five allotments. Or. Natural Desert Ass'n v Tidwell (2010,
DC Or) 716 F Supp 2d 982.
United States Forest Service (USFS) was entitled to summary judgment on claim by grazing allotment permittees
who alleged that USFS violated Endangered Species Act, 16 USCS §§ 1531 et seq., by arbitrarily limiting grazing in
Malheur National Forest; USFS did not act arbitrarily and capriciously under 5 USCS § 706(2)(A) in choosing bank
alteration standard as habitat proxy for "take" of protected steelhead trout for purposes of 16 USCS §§ 1536(b)(4) and
1538. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.
Issuance of Fish and Wildlife Service biological opinion pursuant to Endangered Species Act (16 USCS § 1536)
does not deprive ALJ or Interior Board of Land Appeals of jurisdiction to act upon grazing appeal filed under Taylor
Grazing Act (43 USCS §§ 315 et seq.) with respect to issues not within scope of biological opinion. Blake, et al. v Bureau of Land Management (2002) 156 IBLA 280.
Issuance of Fish and Wildlife Service biological opinion pursuant to Endangered Species Act (16 USCS § 1536)
does not deprive ALJ or Interior Board of Land Appeals of jurisdiction to act upon grazing appeal filed under Taylor
Grazing Act (43 USCS §§ 315 et seq.) with respect to issues not within scope of biological opinion. Blake, et al. v Bureau of Land Management (2002) 156 IBLA 280.
23.--Hydropower development
District court properly ruled that National Marine Fisheries Service's (NMFS) 2004 Biological Opinion, which
found that proposed operations of Federal Columbia River Power System dams for 2004 through 2014 would not adversely modify critical habitat of 13 listed endangered salmonoid species, was arbitrary and capricious under 5 USCS §
706(2)(A); NMFS's critical habitat determination under 16 USCS § 1536, did not adequately consider proposed action's
short-term negative effects in context of affected species' life cycles and migration patterns, relied on uncertain
long-term improvements to critical habitat to offset certain short-term degradation, and concluded that species' critical
habitat was sufficient for recovery without adequate information to make that determination. Nat'l Wildlife Fed'n v Nat'l
Marine Fisheries Serv. (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.
Federal Energy Regulatory Commission (FERC) did not act arbitrarily or capriciously in relying on biological
opinions (BiOps) of U.S. Fish and Wildlife Service in relation to hydroelectric project's effect on Endangered Species
Act listed species; licensee, in challenging FERC's reliance on BiOps, did not present new information that called into
question BiOps' factual conclusions; moreover, BiOps were not legally flawed or unsupported by evidence. City of Tacoma v FERC (2006, App DC) 373 US App DC 117, 460 F3d 53, 36 ELR 20173.
Federal agencies' 1993 biological opinion on hydropower operations is arbitrary and capricious and is remanded for
reinitiation of consultations with tribal and state experts, because National Marine Fisheries Service's process for deter-
Page 109
16 USCS § 1536
mining how action agencies are doing in their efforts to save listed salmon species looks too much at what establishment
is capable of handling with minimal disruption and not enough at what can be done to protect species from jeopardy,
and is not in accordance with meaning and underlying purposes of 16 USCS § 1536(a)(2). Idaho Dep't of Fish & Game
v National Marine Fisheries Serv. (1994, DC Or) 850 F Supp 886, 38 Envt Rep Cas 1842, 24 ELR 21384, remanded
(1995, CA9 Or) 56 F3d 1071, 95 CDOS 4049, 40 Envt Rep Cas 2005 and (Abrogated as stated in Nat'l Wildlife Fedn v
Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099).
Bureau of Reclamation was entitled to summary judgment on environmental organization's claim that Bureau's environmental assessment (EA) involving changes to modified low fluctuating flow (MLFF) operation of Glen Canyon
Dam on Colorado River violated 42 USCS § 4332 because EA properly considered appropriate and reasonable alternatives and did not amount to clear error of judgment for purposes of 5 USCS § 706(2)(A); however, environmental organization was entitled to summary judgment on its claim that Fish and Wildlife Service's (FWS) related biological
opinion violated 16 USCS § 1536 of Endangered Species Act because opinion lacked reasoned basis for FWS's new
conclusion that MLFF did not destroy or adversely modify critical habitat of endangered humpback chub. Grand Canyon Trust v United States Bureau of Reclamation (2009, DC Ariz) 623 F Supp 2d 1015, 39 ELR 20117.
Unpublished Opinions
Unpublished: Where petitioners challenged two orders of Federal Energy Regulatory Commission regarding license
for continued operation by city of hydroelectric project on river, petition for review was denied because, inter alia, National Marine Fisheries Service's conclusions that approved of downstream fish passage provisions in new license were
reasonably based on best evidence. Cowlitz Indian Tribe v FERC (2006, CA9) 186 Fed Appx 806.
24.--Mineral and petroleum leases
Biological opinion requiring the sale of oil and gas leases on national forest land by agency is required to include
all phases of agency action, including post-leasing activities based on best scientific and commercial data available and
requirement is not excused by insufficient information pertaining to specific location and extent of post-leasing oil and
gas activities to render comprehensive biological opinion beyond initial lease stage unnecessary and comprehensive
biological opinion is not rendered unnecessary by incremental-step consultation process written into the leases. Conner
v Burford (1988, CA9 Or) 836 F2d 1521, 27 Envt Rep Cas 1443, 10 FR Serv 3d 560, 18 ELR 20379, reprinted as amd
on other grounds (1988, CA9 Mont) 848 F2d 1441, 18 ELR 21182, 100 OGR 84 (criticized on other grounds in NRDC v
United States Army Corps of Eng'rs (2001, SD Fla) 31 ELR 20880).
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.
25.--Water rights; flood control
Navy's reliance on Fish and Wildlife Service's biological "no jeopardy" opinions in leasing out lands and contiguous water rights over objection that leases threatened endangered species of fish was not arbitrary and capricious.
Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572.
Because Fish and Wildlife Service "reasonable and prudent measure" (RPM) involving mitigation of X2 movement
(X2 measured intrusion of water with salinity level of two parts per thousand concentration of salt into Sacramento-San
Joaquin Delta) was major change and, therefore, invalid under regulations of Endangered Species Act, 16 USCS § 1531
et seq., setting aside of this RPM was affirmed. Westlands Water Dist. v United States DOI (2004, CA9 Cal) 376 F3d
853, 58 Envt Rep Cas 2024, 34 ELR 20054.
Because Army Corps of Engineers was able to exercise its discretion in determining how best to fulfill purposes of
Flood Control Act of 1944, its operation of reservoir system on Missouri River was subject to Endangered Species Act;
Corps was therefore authorized to consult with Fish and Wildlife Service to produce Biological Opinion pursuant to 16
USCS § 1536(a)(2). Am. Rivers, Inc. v United States Army Corps of Eng'rs. (2005, CA8 Minn) 421 F3d 618, 61 Envt
Rep Cas 1038, 35 ELR 20173, cert den (2006) 547 US 1097, 126 S Ct 1880, 164 L Ed 2d 566 and cert den (2006) 547
Page 110
16 USCS § 1536
US 1097, 126 S Ct 1879, 164 L Ed 2d 566, 63 Envt Rep Cas 1128 and cert den (2006) 547 US 1097, 126 S Ct 1879, 164
L Ed 2d 566.
Under 16 USCS § 1536, Fish and Wildlife Service and National Marine Fisheries Service were not required to prepare separate "environmental baseline" prior to issuing biological opinions concerning Bureau of Reclamation's operating plan for federal reclamation project, which was intended to protect endangered fish species during drought year,
since baseline, by definition, included all human activities affecting listed species in action area. Kandra v United States
(2001, DC Or) 145 F Supp 2d 1192, 52 Envt Rep Cas 1928.
Where (1) Fish and Wildlife Service (FWS) issued biological opinion (BiOp) calling upon Army Corps of Engineers (Corps) to institute water management regimen on river basin to protect endangered species, (2) Corps' plan did
not implement water flow regimes, and (3) FWS issued supplemental BiOp reversing its original position, environmental organizations were entitled to preliminary injunction against Corps for violating Endangered Species Act, 16 USCS
§§ 1531 et seq. Am. Rivers v United States Army Corps of Eng'rs (2003, DC Dist Col) 271 F Supp 2d 230, 57 Envt Rep
Cas 1106, 33 ELR 20239.
Army Corps of Engineers implemented program to conserve endangered and threatened species (specifically kit
foxes and red-legged frogs) at project site in conjunction with its permitting program under § 404(b)(1) of Clean Water
Act, 33 USCS § 1344(b)(1), and, as result of consultation with Fish and Wildlife Service, district engineer could add
species-specific regional endangered species conditions to permit; thus, Corps was not arbitrary and capricious in carrying out its duties under 16 USCS § 1536(a)(1). Protect Our Water v Flowers (2004, ED Cal) 377 F Supp 2d 844.
Biological opinion (BO) and reasonable and prudent alternatives (RPAs) issued by Fish and Wildlife Service with
respect to Federal Emergency Management Agency's (FEMA) National Flood Insurance Program (NFEP) in Florida
Keys violated Endangered Species Act, 16 USCS § 1536, because (1) BO failed to consider whether FEMA's NFIP was
continuing to jeopardize eight listed endangered species, (2) RPAs failed to protect against jeopardy to these species,
illegally relied on voluntary measures, failed to account for cumulative effects of proposed projects, and failed to protect
against habitat loss and fragmentation, (3) BO did not adequately protect against adverse modification of critical habitat
for another certain endangered animal, and (4) FEMA failed to develop conservation program for eight listed species.
Fla. Key Deer v Brown (2005, SD Fla) 364 F Supp 2d 1345, 18 FLW Fed D 424, injunction gr, remanded on other
grounds (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep
Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.
Army Corps of Engineers did not violate Endangered Species Act, 16 USCS §§ 1531 et seq., by relying on biological opinions that were issued by Fish and Wildlife Service (FWS) and National Marine Fisheries Service where record
showed that FWS was aware that removal of causeway would have restored historic navigational and hydrologic connectivity between eastern and western portion of lake and expressed concern about increased boat traffic was speculative. Fla. Keys Citizens Coalition, Inc. v United States Army Corps of Eng'rs (2005, SD Fla) 374 F Supp 2d 1116, 18
FLW Fed D 759, costs/fees proceeding, magistrate's recommendation (2005, SD Fla) 2005 US Dist LEXIS 17104,
costs/fees proceeding, magistrate's recommendation (2005, SD Fla) 386 F Supp 2d 1266.
In case brought under Endangered Species Act, 16 USCS §§ 1531 et seq. summary judgment was granted to council
because two consulting agencies did not comply with jeopardy and critical habitat prongs of 16 USCS § 1536 when biological opinions (BiOps) were issued prior to renewal of certain water contracts; BiOps failed to adequately discuss
adverse modification prong, species recovery and conservation were not analyzed, entire agency action was not considered because operations and maintenance activities were not analyzed, jeopardy analysis was completed on some species before consultation was completed, and use of historical average water supplies instead of full contractual amount
was improper. NRDC v Rodgers (2005, ED Cal) 381 F Supp 2d 1212, 61 Envt Rep Cas 1771.
In action in which water users challenged Biological Opinion (BiOp) that U.S. Fish and Wildlife Service prepared
regarding impact of water projects on threatened delta smelt pursuant to 16 USCS § 1536 of Endangered Species Act,
district court concluded that BiOp was not arbitrary and capricious under 5 USCS § 706(2)(A) because there was no
express language in § 1536 or in 50 CFR § 402.02 mandating that first three definitional elements of Reasonable and
Prudent Alternative under § 402.02 be discussed on face of BiOp as opposed to administrative record supporting BiOp.
Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 666 F Supp 2d 1137, 71 Envt Rep Cas 1055, summary judgment
den, motion to strike den (2009, ED Cal) 2009 US Dist LEXIS 101794.
26.--Particular species
Page 111
16 USCS § 1536
In preparing environmental impact statement addressing plan for future use of former military base, National Park
Service did not ignore available scientific and commercial data showing encroachment of proposed development on
mission blue butterfly habitat where city failed to prove that proposed parking lot encroached on that habitat, U.S. Fish
and Wildlife Service and National Marine Fisheries Service actively participated in environmental impact statement
process and issued their opinions as to mitigation measures for threatened and endangered species, and there was no
evidence that National Park Service had failed to disclose any information to wildlife agencies. City of Sausalito v
O'Neill (2002, ND Cal) 2002 US Dist LEXIS 12457.
Pursuant to 16 USCS § 1536(a)(2) and 5 USCS § 706(2)(A), National Marines Fisheries Service had not arbitrarily
and capriciously singled out pelagic longlining fisheries over other activities that harmed listed turtle species when it
closed area to pelagic longline fishing where agency's second biological opinion had analyzed impacts of other activities
within area and was based on best scientific data available. Blue Water Fishermen's Ass'n v Nat'l Marine Fisheries Serv.
(2002, DC Mass) 226 F Supp 2d 330.
For purposes of review under Administrative Procedure Act, National Marine Fisheries Service's (NMFS) use of
sea turtle mortality rates data from 1970s and 1980s was not inherently irrational or arbitrary and capricious application
of Endangered Species Act because, although mortality rates constructed from data in 1970s and 1980s might not have
been perfect proxies for current loggerhead sea turtle mortality rates, agency's reliance on them was not unreasoned as
these rates were only viable data available for basing its estimates; NFMS's analysis of federally authorized scallop
fisheries upon loggerhead sea turtle mortality rates as part of its biological opinion was adequate because agency made
concerted effort to evaluate scallop fisheries impact in light of environmental baseline and was not required to numerically add "takes" from different sources together. Oceana, Inc. v Evans (2005, DC Dist Col) 384 F Supp 2d 203.
In action filed by plaintiff environmental groups, Biological Opinion issued under Endangered Species Act, 16
USCS § 1531 et seq., that had finding as to sea turtles that conservation rule would cause jeopardy to their continued
existence, and thus, four-pronged Reasonable and Prudent Alternative was designed to reduce post-release mortality,
Opinion did not violate 16 USCS § 1536(b)(4) because in reaching its conclusions, defendant National Marine Fisheries
Service relied upon following two premises--that particular hook would reduce leatherback turtle captures by 50 percent
and that increased gear removal rates would dramatically reduce post-release mortality. Ocean Conservancy v Gutierrez
(2005, DC Dist Col) 394 F Supp 2d 147, 35 ELR 20208, dismd, in part (2006, App DC) 2006 US App LEXIS 18596 and
affd (2007, App DC) 376 US App DC 324, 488 F3d 1020, 64 Envt Rep Cas 1577, 37 ELR 20124.
27.----Birds
In jeopardy analysis performed pursuant to 16 USCS § 1536(a)(2), part of Endangered Species Act, 16 USCS §§
1531 et seq., habitat analysis was not just simplistic "x number acres = y number of owls" type of equation; rather, habitat proxy took into account type of land, extent of degradation of habitat, relationship between different habitats, owls'
distribution, owls' range, and competition from other species, forest insects, and disease and Fish and Wildlife Service
had program of demographic studies that supplemented and verified habitat results; thus, use of habitat proxy was not
impermissible. Gifford Pinchot Task Force v United States Fish & Wildlife Serv. (2004, CA9 Wash) 378 F3d 1059, 59
Envt Rep Cas 1110, 34 ELR 20068, amd on other grounds (2004, CA9 Wash) 387 F3d 968.
In case arising under Endangered Species Act of 1973, 16 USCS §§ 1531 et seq., in which Native American tribe
(Tribe) appealed district court's entry of summary judgment in favor of U.S. Fish & Wildlife Service (Service), Tribe
unsuccessfully argued that Service's 2006 biological opinion was not in accordance with law because it failed to follow
proper procedures, which required analyzing environmental baseline and cumulative effects; Tribe was unable to show
that two state projects located within 841,000 acres of Everglade Snail Kite's critical habitat had any adverse impact on
Kite, or that anyone believed that they did, and biological opinion briefly considered possibility of there being some
development outside of Army Corps of Engineers' control. Miccosukee Tribe of Indians v United States (2009, CA11
Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.
In case arising under Endangered Species Act of 1973 (Act), 16 USCS §§ 1531 et seq., in which Native American
tribe (Tribe) appealed district court's entry of summary judgment in favor of U.S. Fish & Wildlife Service (Service),
Tribe unsuccessfully argued that Services' 2006 biological opinion was arbitrary and capricious because it arrived at
conclusions that were counter to scientific data in record or were so implausible that they went beyond acceptable difference of expert opinion; deference owed 2006 biological opinion was especially strong because Service had to predict
future hydrologic conditions and estimate likelihood, extent, and duration of injury to species; in light of facts before
Service, its determination in its 2006 biological opinion that action will not jeopardize Everglade Snail Kite or adversely
Page 112
16 USCS § 1536
modify its habitat within meaning of Act was not arbitrary and capricious. Miccosukee Tribe of Indians v United States
(2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C 1780.
28.----Fish
District court's issuance of injunction pursuant to Endangered Species Act, 16 USCS §§ 1531-1544, was affirmed
where National Wildlife Foundation had altered its own interpretation of statute significantly in its biological opinion
concerning salmon and steelhead in Federal Columbia River Power System, and agency's interpretation was thus entitled to little deference. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2005, CA9 Or) 418 F3d 971, amd on other
grounds (2005, CA9 Or) 422 F3d 782, 60 Envt Rep Cas 1929, injunction gr, in part, on remand (2005, DC Or) 2005 US
Dist LEXIS 39509, affd (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.
Environmental groups successfully challenged National Marine Fisheries Service's (NMFS's) North Pacific Fishery
Management Plans for groundfish fisheries in Bering Sea and Gulf of Alaska, where biological opinion relied upon by
NMFS is limited in scope, heavy on general background information, and deficient in focused and meaningful discussion and analysis of how these large fisheries, and complex management measures which regulate them, affect endangered Steller sea lions, because 16 USCS § 1536 requires comprehensive biological opinion that addresses full scope of
agency action. Greenpeace v National Marine Fisheries Serv. (2000, WD Wash) 80 F Supp 2d 1137, 50 Envt Rep Cas
1237, 30 ELR 20314 (criticized in Ocean Mammal Inst. v Gates (2008, DC Hawaii) 2008 US Dist LEXIS 42068).
Environmental group's challenge to National Marine Fisheries Service's fishery management plan, on ground prior
consultation had violated 16 USCS § 1536, was not rendered moot by Service's reinitiation of formal consultation,
where government's allegedly inadequate prior consultation efforts remained as basis of biological opinions that still
governed plan. Greenpeace Found. v Mineta (2000, DC Hawaii) 122 F Supp 2d 1123, 51 Envt Rep Cas 1925.
Findings and analysis of United States National Marine Fisheries Service (NMFS) regarding winter-run Chinook
were incomplete, arbitrary and capricious because (1) NMFS failed to consider recovery of species; and (2) NMFS's
factual findings and analyses were themselves contradictory as to survival of species, and these findings and analyses
contradicted its no jeopardy conclusions. Pac. Coast Fed'n of Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US
Dist LEXIS 31462, Amd on other grounds, summary judgment gr, in part, summary judgment den, in part (2008, ED
Cal) 67 Envt Rep Cas 1674, amd on other grounds, summary judgment gr, in part, summary judgment den, in part
(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.
Biological opinion (BiOp) of United States National Marine Fisheries Service (NMFS) regarding spring-run Chinook was incomplete, contradictory, and violated Endangered Species Act and Administrative Procedures Act because
it had (1) failed to define and consider effects on spring-run critical habitat as required by 16 USCS § 1533, important
aspect of no jeopardy 16 USCS § 1536 BiOp; (2) failed to explain why no jeopardy findings are contradicted by record
evidence developed by agency; and (3) failed to adequately analyze recovery of spring-run chinook. Pac. Coast Fed'n of
Fishermen's Ass'ns v Gutierrez (2008, ED Cal) 2008 US Dist LEXIS 31462, amd on other grounds, summary judgment
gr, in part, summary judgment den, in part (2008, ED Cal) 67 Envt Rep Cas 1674, amd on other grounds, summary
judgment gr, in part, summary judgment den, in part (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.
29.----Mammals
Failure of National Marine Fisheries Service to prepare comprehensive biological opinion as to adverse effect of
fishery management plan on endangered Stellar sea lion warranted injunction of groundfish trawl fishing within critical
habitat until appropriate opinion was prepared, since failure to prepare opinion was substantial procedural violation of
16 USCS § 1536, and, hence, irreparable harm was presumed. Greenpeace v National Marine Fisheries Serv. (2000,
WD Wash) 106 F Supp 2d 1066, 51 Envt Rep Cas 1119, summary judgment gr, in part, summary judgment den, in part,,
remanded (2002, WD Wash) 237 F Supp 2d 1181.
Permit allowing limestone mining company to deposit dredge and fill material in wetlands area within habitat of
endangered Florida panther was invalid because it relied on erroneous finding of no jeopardy in Biological Opinion by
Fish and Wildlife Service (FWS); finding by FWS that area that was involved was relatively small in comparison to
total habitat acreage was not dispositive by itself of effect of mining on panther habitat, and FWS improperly disregarded reasonably foreseeable future projects in evaluating cumulative impact of mining operation. Nat'l Wildlife Fed'n
v Norton (2004, DC Dist Col) 332 F Supp 2d 170, 59 Envt Rep Cas 1576.
Page 113
16 USCS § 1536
30. Mitigation lands
16 USCS § 1536 dictates that if an agency plans to mitigate its project's adverse effects on endangered species by
acquiring habitat and creating refuge, it must insure creation of that refuge before it permits destruction or adverse modification of other habitat. Sierra Club v Marsh (1987, CA9 Cal) 816 F2d 1376, 17 ELR 20717.
Although Corps of Engineers complied with Endangered Species Act by entering into agreement to insure that
flood control project was not likely to jeopardize endangered species, insurance lapsed when COE learned that expectations under agreement were not being fulfilled and COE is in violation of 16 USCS § 1536(a)(2) by allowing destruction or adverse modification of any part of bird's habitat without first insuring acquisition and preservation of mitigation
lands. Sierra Club v Marsh (1987, CA9 Cal) 816 F2d 1376, 17 ELR 20717.
Where, pursuant to environmental assessment, Fish and Wildlife Service promulgated requirement that landowner
acquire 77 off-site acres of additional wildlife refuge pursuant to 16 USCS § 1536(a)(2), impediment to landowner's use
of its property could constitute taking without compensation under U.S. Const. amend. V. Schooner Harbor Ventures,
Inc. v United States (2009, CA FC) 569 F3d 1359, 39 ELR 20132, complaint dismd, judgment entered, on remand
(2010) 92 Fed Cl 373.
31. Consultation with Secretary or agency
Conservation organizations were granted injunction against defendants, Secretary of Interior and U.S. Fish and
Wildlife Service, requiring formal consultation, in conjunction with issuance of biological opinion, prior to taking of
any agency action that might affect lynx or its critical habitat, after defendants declared lynx to be threatened rather than
endangered and failed to designate critical habitat. Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9,
remanded (2004, App DC) 89 Fed Appx 273.
National Marine Fisheries Service's (subagency of NOAA) definition of "action area," which limited its scope to
main stems of Columbia and Snake Rivers, was arbitrary and capricious because it was inconsistent both with regulatory requirements and geographic region NOAA actually considered in order to justify no-jeopardy conclusion; record
clearly established that NOAA improperly relied on range-wide off-site federal mitigation actions that had not undergone consultation under § 7 (16 USCS § 1536(a)(2)) of Endangered Species Act, and non-federal mitigation actions that
were not reasonably certain to occur in order to reach no-jeopardy conclusion as to eight of twelve salmon "Evolutionary Significant Units." Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2003, DC Or) 254 F Supp 2d 1196, 57 Envt
Rep Cas 1018, 33 ELR 20195.
Congress did not leave it to discretion of Fish and Wildlife Service and National Marine Fisheries Service to define
"consultation" in way that results in no consultation at all on "not likely to adversely affect" (NLAA) actions under §
7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2); while wording of statute and statute's lack of granular direction on process of consultation may leave it to discretion of Services to create range of types of consultation, "shall . . .
in consultation with" cannot be read as "no consultation on NLAA actions." Wash. Toxics Coalition v United States
DOI (2006, WD Wash) 457 F Supp 2d 1158, 64 Envt Rep Cas 1280, 36 ELR 20190.
32.--Application of consultation requirement
As to communications towers in Gulf Coast region, Federal Communications Commission declined to consult with
United States Fish and Wildlife Service (FWS), per 16 USCS § 1536(a)(2), stating that there was no evidence of any
synergies among towers that would have caused them cumulatively to have significant environmental impacts that they
did not have individually; Commission's reliance on lack of "synergies" was not further explained in order; this explanation was inadequate. Am. Bird Conservancy, Inc. v FCC (2008, App DC) 380 US App DC 102, 516 F3d 1027, 65 Envt
Rep Cas 2025, 38 ELR 20052.
Interior Secretary's issuance of regulations which limit "consultation provision" of 16 USCS § 1536 to endangered
species within United States are invalid, because broad language of statute indicates congressional intent for extraterritorial application of consultation requirement. Defenders of Wildlife v Hodel (1989, DC Minn) 707 F Supp 1082, 19
ELR 20822, affd (1990, CA8 Minn) 911 F2d 117, 32 Envt Rep Cas 1213, 20 ELR 21442, reh den, en banc (1990, CA8)
1990 US App LEXIS 22299 and revd, remanded on other grounds (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.
Page 114
16 USCS § 1536
Federal Emergency Management Agency (FEMA) violated § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act by failing to consult with National Marine Fisheries Service (NMFS) to ensure that regulations establishing
minimum eligibility criteria for NFIP, mapping of floodplains, and revisions thereof, and Community Rating System
were not likely to jeopardize continued existence of Puget Sound Chinook salmon; FEMA's failure to consult with
NMFS was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law, and without observance
of procedure that was required by law, 5 USCS § 706(2)(A), (D). Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F
Supp 2d 1151, 59 Envt Rep Cas 1973.
Federal Emergency Management Agency had discretion to act for benefit of Puget Sound Chinook salmon in implementing National Flood Insurance Program, and, thus, consultation with National Marine Fisheries Service (NMFS)
was ordered. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.
Because National Flood Insurance Act, 42 USCS §§ 4001 et seq., required Federal Emergency Management Agency to review flood maps at least once every five years to assess need to update all floodplain areas and flood risk zones,
pursuant to 42 USCS § 4101(e), (f)(1), agency activity was clearly ongoing one that was subject to Endangered Species
Act's consultation requirements. Nat'l Wildlife Fed'n v FEMA (2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas
1973.
Where reinitiation of consultation process under § 7 of Endangered Species Act, 16 USCS § 1536, was found to be
required because U.S. Supreme Court precedent resulted in modification of implementation of city's habitat conservation plan and compliance with incidental take permit, district court rejected argument that Supreme Court decision
eliminated Army Corps of Engineers' Clean Water Act review process and meant that developers could effect vernal
pool species by complying with terms that were submitted by city in its habitat conservation plan; plan's vague and porous protections were absolutely inadequate to minimize and mitigate harm to vernal pool species, and builders that
were asserting argument were simply seeking windfall; rather than district court rewriting or reissuing permit, proper
course was for expert agency to consider what protections were necessary when specific development would affect
seven vulnerable vernal pool species that were at issue. 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.
Agency's duty to confer with U.S. Fish and Wildlife Service under 16 USCS § 1536(a)(2) arises as of time that all
of necessary information is available and it is possible for agencies to engage in meaningful conference regarding decision to be made. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.
Where U.S. Bureau of Land Management (BLM) decided that resumption of oil and gas leasing in wilderness area
would have no significant environmental impact, BLM's duty to confer with U.S. Fish and Wildlife Service under 16
USCS § 1536(a)(2) arose prior to that decision, rather than prior to time leases were actually awarded, but lack of prior
conferral was harmless since no new substantive information arose after decision to resume leasing and before subsequent informal conferral between agencies, and thus there was no reason to believe that prior conferral would have
yielded different results. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.
BLM decision to offer federal lands for oil and gas leasing may trigger requirement that it consult with Fish and
Wildlife Service pursuant to 16 USCS § 1536 in order to determine whether leasing and all post-leasing activities
through production and abandonment are likely to jeopardize continued existence of any listed species, or destroy or
adversely modify its critical habitat; however, such obligation only arises where listed species is not only present in
proposed lease area, but is also affected by leasing and potential oil and gas development. Forest Guardians (2006) 170
IBLA 80.
When it is determined that proposed action may affect, and is likely to adversely affect, threatened and endangered
species, BLM is required by 16 USCS § 1536(a)(2) to formally consult with Fish and Wildlife Service (FWS) in order
to ensure that such action is not likely to jeopardize continued existence of species or destroy or adversely modify its
critical habitat; formal consultation is not required when BLM determines, with concurrence of FWS, that proposed
action may affect, but is not likely to adversely affect species. Biodiversity Conservation Alliance, et al. (2007) 171
IBLA 218.
33.----Consultation not required
Page 115
16 USCS § 1536
Where Army Corps of Engineers issued permits to two developments under Clean Water Act, Corps was not required to consult with Fish and Wildlife Service on effect of developments on Arizona cactus ferruginous pygmy-owl
under Endangered Species Act and 50 C.F.R. § 402.14(a), and Corps' "no effects" ruling rested on firm foundation that
no pygmy-owls had been found to live within either project area. Defenders of Wildlife v Flowers (2005, CA9 Ariz) 414
F3d 1066, 60 Envt Rep Cas 1999, 35 ELR 20145.
District court erred in granting summary judgment in favor of environmental organizations in their action seeking
to compel Bureau of Land Management (BLM) to initiate consultation under 16 USCS § 1536(a)(2) in relation to water
diversions in Idaho; BLM's failure to regulate vested rights-of-way held by private landowners to divert water for irrigation uses did not constitute "action authorized, funded, or carried out" by BLM so as to require consultation pursuant to
16 USCS § 1536(a)(2); further, BLM's determination to limit its power to regulate rights-of-way that vested prior to
enactment of Federal Land Policy Management Act, 43 USCS §§ 1701 et seq., did not constitute ongoing agency action.
W. Watersheds Project v Matejko (2006, CA9 Idaho) 468 F3d 1099.
Petition for review of decision by Federal Energy Regulatory Commission (FERC) not to initiate formal consultation pursuant to 16 USCS § 1536(a)(2) with National Marine Fisheries Service regarding utility company's operation of
hydroelectric project that was allegedly killing Chinook Salmon was denied as agency action was concluded when
FERC issued project license; although environmental groups argued that continuing operation of project by utility
company was agency "action" within meaning of § 1536(a)(2), consultations under statute stemmed only from affirmative actions of agency, and FERC had proposed no such action. Cal. Sportfishing Prot. Alliance v FERC (2006, CA9)
472 F3d 593, 36 ELR 20245.
Federal agency's failure to conduct formal consultation under § 7 of Endangered Species Act (ESA), of promulgation of rule as to salmon take under § 4(d) of ESA, 16 USCS § 1533(d), at general, preliminary level, was not arbitrary
and capricious. Wash. Envtl. Council v Nat'l Marine Fisheries Serv. (2002, WD Wash) 32 ELR 20570.
In promulgating 50 CFR § 21.48, order managing U.S. population of double-crested cormorants, Fish and Wildlife
Service (FWS) did not violate Endangered Species Act, 16 USCS §§ 1531 et seq., by not seeking formal consultation
under 16 USCS § 1536(a)(2) because FWS-Endangered Species Division issued written concurrence that order was not
likely to adversely affect any protected species and because that determination was based on agencies' understanding of
best available data. Fund for Animals v Norton (2005, SD NY) 365 F Supp 2d 394, affd (2008, CA2 NY) 538 F3d 124,
38 ELR 20213.
Army Corps of Engineers failed to comply with its obligation under § 7(a)(2) of Endangered Species Act, 16 USCS
§ 1536(a)(2), to consult with Fish and Wildlife Service (FWS), and consultation with FWS may or may not have resulted in Corps modifying its general nationwide permits; however, because Corps' finding of no significant impact and
minimal impact finding under Clean Water Act (CWA), 33 USCS §§ 1251 et seq., were closely intertwined with Corps'
compliance with § 7(a)(2), both sides' motions for summary judgment were denied on claims under CWA and National
Environmental Policy Act, 42 USCS § 4331 et seq. Nat'l Wildlife Fed'n v Brownlee (2005, DC Dist Col) 402 F Supp 2d
1, 60 Envt Rep Cas 1111, app dismd (2006, App DC) 2006 US App LEXIS 620.
While Army Corps of Engineers' failure to reinitiate consultation had been held as not arbitrary and capricious, it
was conceivable that defendant U.S. Fish & Wildlife Service's expertise could render its failure to do so improper; thus,
plaintiff Indian Tribe's claim under 16 USCS § 1536, part of Endangered Species Act, was not dismissed. Miccosukee
Tribe of Indians v United States (2006, SD Fla) 430 F Supp 2d 1328, 19 FLW Fed D 833, motions ruled upon (2007,
SD Fla) 2007 US Dist LEXIS 32612, summary judgment gr, motion den, as moot (2007, SD Fla) 528 F Supp 2d 1317,
affd in part and revd in part on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39
ELR 20097, 21 FLW Fed C 1780.
Florida was denied injunctive relief requiring Army Corps of Engineers to maintain recommended flow of river
waters downstream from dam in order to protect critical habitat of mussel species listed as threatened and endangered
because Florida failed to show either that Corps failed to consult with Fish and Wildlife Service to ensure that its actions did not destroy critical habitat under16 USCS § 1536(a)(2) or that Corps performed illegal taking of such habitat
under 16 USCS § 1538(a)(1)(B); absent such showings, Florida failed to meet its burden of demonstrating that it had
likelihood of success on merits. Alabama v United States Army Corps of Eng'rs (2006, ND Ala) 441 F Supp 2d 1123.
Where plaintiff environmental groups alleged defendant U.S. Army Corps of Engineers violated Endangered Species Act in granting 120-day extension of agricultural fill permit, challenge failed because Corps, not faced with any
change in circumstances, and having determined no action would take place as to intervenor permittee's possible future
Page 116
16 USCS § 1536
plans prior to permit's expiration, consultation with U.S. Fish and Wildlife Service and/or National Marine Fisheries
Service under 16 USCS § 1536 was not required. Nat'l Parks Conservation Ass'n v United States Army Corps of Eng'rs
(2006, SD Fla) 446 F Supp 2d 1322, 20 FLW Fed D 54.
There was no procedural violation by United States Fish & Wildlife Service and National Marine Fisheries Service
in failing to base their concurrences with "no effect" determination of United States Forest Service on best scientific and
commercial data available because Forest Service never initiated formal consultation and there was no consultation requirement imposed on Wildlife Services, including use of best scientific and commercial data under 16 USCS §
1536(a)(2). Sierra Forest Legacy v United States Forest Serv. (2009, ND Cal) 598 F Supp 2d 1058.
In a case in which a timber industry group and others sued the Director of the Bureau of Land Management (BLM)
and other federal officials and filed a motion to enforce a 43 USCS § 1181a settlement agreement, arguing that the BLM
breached the agreement's implied covenant of good faith by promulgating the contemplated revised BLM Resource
Management Plan without initiating consultation with the U.S. Fish and Wildlife Service or the National Oceanic and
Atmospheric Administration about the BLM's Plan's impact on endangered or threatened species, there was no evidence
of the BLM's subjective bad faith, the BLM's no effect determination was not facially invalid, and any consulting duty
may have been satisfied, plaintiffs' theory of breach was too tenuous to support an enforcement order. Am. Forest Res.
Council v Caswell (2009, DC Dist Col) 631 F Supp 2d 30, 39 ELR 20147.
34.--Contents of consultation
Consultation with Secretary under 16 USCS § 1536 does not require acquiescence in his opinion, and should difference of opinion arise as to given project, responsibility for decision after consultation is not vested in Secretary but in
agency involved, such decision being subject to judicial review. Sierra Club v Froehlke (1976, CA8 Mo) 534 F2d
1289, 8 Envt Rep Cas 1944, 6 ELR 20448 (superseded by statute on other grounds as stated in City of Oxford v FAA
(2005, CA11) 428 F3d 1346, 35 ELR 20219, 18 FLW Fed C 1093).
Although plaintiffs argued that forest service violated § 7 of Endangered Species Act (ESA) by failing to properly
consult with Fish and Wildlife Service (FWS) to insure that project would not adversely affect Canada lynx (listed species under ESA), that FWS failed to list critical habitat for lynx even though such listing was required concurrently with
listing determination, and that action was arbitrary and capricious because administrative record was devoid of specific
data on lynx populations within last 24 years, forest service demonstrated that it properly considered lynx habitat and
properly consulted with FWS, and that consultation, coupled with previously developed lynx conservation strategies
and court's general deference to expertise of agencies, demonstrated that defendants' analysis regarding Canada lynx
was not arbitrary and capricious. Sierra Club v Bosworth (2005, DC Minn) 352 F Supp 2d 909, 59 Envt Rep Cas 2004.
Where U.S. Bureau of Land Management and U.S. Fish and Wildlife Service conferred under 16 USCS §
1536(a)(2) and determined that there would be no significant environmental impact from oil and gas drilling on parcels
of land inhabited by threatened species, agencies' conferral was inadequate since there was no consideration of effects
that could result from future development in entire action area, such as fugitive dust emissions, additional roads, and
runoff. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.
16 USCS § 1536 and Secretary's regulations require consideration of not only impacts of particular project subject
to consultation, but also cumulative effects of other activities or programs which may have similar impacts on listed
species or its habitat; focus of consultation should not be limited to individual impacts of activity under review, but rather consultation should also look at cumulative impacts of all similar projects in area; rule of reason should be applied,
considering sequence of impacts, degree of administrative discretion remaining to be exercised, and similar factors.
Cumulative Impacts--§ 7 of Endangered Species Act (1978) 85 ID 275.
35.--Effect on final decision
Once federal agency has had meaningful consultation with Secretary of Interior concerning actions that may affect
endangered species, final decision whether to proceed with action lies with agency itself and 16 USCS § 1536 does not
give Department of Interior veto power over actions of other federal agencies, provided required consultation has occurred. 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.
Where construction work on features of Modified Water Deliveries Project and another prior authorized project
was not dependent on newly adopted alternative plan that was not in original environmental impact statement, but was
Page 117
16 USCS § 1536
fully coordinated and approved by U.S. Fish and Wildlife Service at time those projects were approved, and consultation was completed upon issuance of Biological Opinion, defendant U.S. Army Corps of Engineers did not violate 16
USCS § 1536. 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.
Timber contractor erred in arguing that it was not subject to requirements of 16 USCS § 1536(d) where even though
Forest Service had suspended its timber sales contracts before beginning consultation with Fish and Wildlife Service,
once that consultation was initiated, contractor was barred from making any irreversible or irretrievable commitment of
resources which has effect of foreclosing formulation or implementation of any reasonable and prudent alternative to
timber sale contract. Scott Timber Co. v United States (2005) 64 Fed Cl 130, 59 Envt Rep Cas 2059, subsequent app
(2007, CA FC) 224 Fed Appx 972, reh den (2007, CA FC) 2007 US App LEXIS 17668.
36.--Standing
Nonprofit organization that seeks to protect threatened species has direct interest in seeing that Fish and Wildlife
Service complies with 16 USCS § 1536(a)(2); thus, such organization has standing to bring suit under 16 USCS § 1540.
Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal
DAR 7051, 53 Envt Rep Cas 2129, 31 ELR 20778.
Environmental advocacy organization had standing under U.S. Const. art. III to bring procedural challenges to general permit for storm water discharges under Endangered Species Act, 16 USCS § 1531 et seq., because claimed harm
was procedural injury stemming from EPA's failure to consult with Fish and Wildlife and/or National Marine Fisheries
Service upon receipt of notice of intent and completion of storm water pollution prevention plan and organization alleged that polluted conditions diminished its members' fishing in bodies of water inhabited by endangered species. Tex.
Indep. Producers & Royalty Owners Ass'n v EPA (2005, CA7) 410 F3d 964, 60 Envt Rep Cas 1513, 35 ELR 20131, reh
den, reh, en banc, den (2005, CA7) 2005 US App LEXIS 18825.
United States Court of International Trade erred in concluding that nonprofit environmental organizations' 15 USCS
§ 1536(a)(2) claim did not satisfy redressability prong of U.S. Const. art. III standing analysis where court mistakenly
reasoned that there would not be favorable result, rather than focusing on whether holding that agencies and officials
had obligation to consult as to their alleged failure to enforce endangered salmon import ban would have provided organizations' redress. Salmon Spawning & Recovery Alliance v United States Customs & Border Prot. (2008, CA FC)
550 F3d 1121, 68 Envt Rep Cas 1041, 30 BNA Intl Trade Rep 1865, 39 ELR 20304.
Nonprofit environmental organizations had U.S. Const. art. III standing to raise 16 USCS § 1536(a)(2) claim
against several federal agencies and officials on their decision to allow importation of endangered salmon species where
they alleged that their members' recreational and other interests were adversely affected by failure to prevent importation of endangered fish, thereby threatening continued existence of threatened and endangered native species. Salmon
Spawning & Recovery Alliance v United States Customs & Border Prot. (2008, CA FC) 550 F3d 1121, 68 Envt Rep Cas
1041, 30 BNA Intl Trade Rep 1865, 39 ELR 20304.
In action by environmental organizations against Secretary of Interior, Bureau of Reclamation (BOR), Fish and
Wildlife Service (FWS), and National Marine Fisheries Service (NMFS), alleging violation of consultation requirements of Endangered Species Act with regard to protected species in Colorado River Delta in Mexico, summary judgment was granted for Secretary of Interior, BOR, NWS, and NMFS under Fed. R. Civ. P. 56(c) where, although environmental organizations had standing to bring their action because they demonstrated that impacts on species in question had direct effect on their aesthetic, scientific, recreational, and economic interests, and their declarations were sufficiently detailed to show that their members suffered injury in fact to particularized interest, and that BOR's ongoing
operations on lower Colorado River had and would continue to have significant impact on delta region and species in
question, record contained no suggestion of way, with or without consultation, for BOR to ensure that more water
reached listed species in Colorado River Delta, Law of River strictly limited BOR's authority to release additional waters to Mexico, 16 USCS § 1536(a)(2) did not loosen those limitations or expand BOR's authority, and BOR did not
have discretion to manipulate water delivery in United States in order to create excess releases for Colorado River Delta. Defenders of Wildlife v Norton (2003, DC Dist Col) 257 F Supp 2d 53, 33 ELR 20162, app dismd (2003, App DC)
74 Fed Appx 63.
Conservation groups had U.S. Const. art. III standing to challenge decisions of U.S. Fish and Wildlife Service and
National Marine Fisheries Service not to issue incidental take statements under 16 USCS § 1536(b)(4) with their biological opinions on U.S. Forest Service's revised forest plans for four southern California national forests; benefits of
Page 118
16 USCS § 1536
compliance with § 1536 accrued to all groups and individuals with interest in species preservation. Ctr. for Biological
Diversity v United States Fish & Wildlife Serv. (2009, ND Cal) 623 F Supp 2d 1044, 70 Envt Rep Cas 1279.
37.--Ripeness; mootness
Although, pursuant to 50 C.F.R. § 402.14(a) and 16 USCS § 1536(a)(2), part of Endangered Species Act (ESA), 16
USCS § 1536, federal agencies are required to consult with appropriate federal fish and wildlife agency when their actions may affect endangered or threatened species, prudential mootness view applies where agency takes action and
thereafter conducts post-hoc "formal" consultation with appropriate federal fish and wildlife agency; procedural defect
arising from agency's failure to comply with ESA is cured by post-hoc formal consultation and, therefore, any claim for
relief seeking remedy of formal consultation is rendered moot. Voyageurs Nat'l Park Ass'n v Norton (2004, CA8 Minn)
381 F3d 759, 34 ELR 20082.
Appellants' claim for relief under Endangered Species Act, 16 USCS § 1536, was rendered moot after National Park
Service held post-hoc consultation with Fish and Wildlife Service (FWS) regarding Park Service's decision to open certain portions of Voyageurs National Park to recreational snowmobile use; post-hoc consultation cured procedural defect
arising from Park Service's failure to comply with mandates of 50 C.F.R. § 402.14(a) and 16 USCS § 1536(a)(2), which
required it to consult with FWS prior to opening areas to recreational use, because use would potentially affect two endangered or threatened species in park--bald eagles and gray-wolf population. Voyageurs Nat'l Park Ass'n v Norton
(2004, CA8 Minn) 381 F3d 759, 34 ELR 20082.
Environmental group's challenge to National Marine Fisheries Service's plan, on ground prior consultation had violated 16 USCS § 1536, was not rendered moot by Service's reinitiation of consultation, where government had not yet
decided whether to conduct formal consultation being sought by group. Greenpeace Found. v Daley (2000, DC Hawaii)
122 F Supp 2d 1110, 51 Envt Rep Cas 1913, summary judgment gr, in part, summary judgment den, in part,, injunction
gr, in part, reserved (2000, DC Hawaii) 122 F Supp 2d 1123, 51 Envt Rep Cas 1925.
38. Effect on particular activities
Navy must obtain biological opinion with respect to impact of training operations on certain endangered species
located in area of such operation; biological opinion must address both possible violations of Endangered Species Act
(16 USCS §§ 1531 et seq.) and must recommend conservation measures designed to mitigate or remove all adverse effects on endangered or threatened species; interested parties must have opportunity to challenge adequacy of biological
opinion, both in terms of its factual basis and its recommendations. Romero-Barcelo v Brown (1981, CA1 Puerto Rico)
643 F2d 835, 16 Envt Rep Cas 1593, 11 ELR 20391, revd on other grounds, remanded (1982) 456 US 305, 72 L Ed 2d
91, 102 S Ct 1798, 17 Envt Rep Cas 1217, 12 ELR 20538.
In light of EPA's duty to insure that oil refinery construction project is unlikely to jeopardize endangered whales or
eagles, ALJ's failure to require, at minimum, that "real time simulation" studies be done to assure low risk of oil spill
prior to granting permit violated his duty under 16 USCS § 1536(a)(2) to use best scientific data available where EPA,
State of Maine, and Coast Guard all viewed such studies as being necessary to final determination of safety. Roosevelt
Campobello International Park Com. v United States EPA (1982, CA1) 684 F2d 1041, 17 Envt Rep Cas 2023, 12 ELR
20903.
In connection with proposed construction of deep draft harbor for commercial and industrial use, Fish and Wildlife
Service and Corps of Engineers did not violate 16 USCS § 1536 relating to threatened species of plant in area of harbor,
where, at request of Corps, Service conducted biological assessment, and where throughout Corps conferred, on informal basis, with Service regarding status of plant; fact that Corps assured in its environmental impact statement that it
would treat plant as if it were listed as endangered species does not estop Corps from denying it owed plant protections
under Act. Enos v Marsh (1985, CA9 Hawaii) 769 F2d 1363, 23 Envt Rep Cas 1124, 15 ELR 20853.
Where District Court found that Corp of Engineers had consulted with Fish and Wildlife Service and Service's biological opinion stated that project would not jeopardize any endangered species in area and Corps imposed eight additional conditions to dredge and fill permit to minimize any possible injury to manatee, conclusion by District Court that
Corp did everything required by Fish and Wildlife Coordination Act (16 USCS §§ 661 et seq.) was substantiated. Environmental Coalition of Broward County, Inc. v Myers (1987, CA11 Fla) 831 F2d 984, 26 Envt Rep Cas 2043, 18 ELR
20273.
Summary judgment in favor of National Marine Fisheries Service (NMFS) on environmental group's Endangered
Species Act (ESA) action was reversed and remanded; because plain language of High Seas Fishing Compliance Act
Page 119
16 USCS § 1536
provided NMFS with ample discretion to protect listed species, ESA required that NMFS conduct consultation to assess
potential impact to protected species. Turtle Island Restoration Network v Nat'l Marine Fisheries Serv. (2003, CA9 Cal)
340 F3d 969, 56 Envt Rep Cas 2067, 33 ELR 20262.
U.S. Forest Service had authority to restrict use of rights-of-way to protect endangered fish, pursuant to 16 USCS §
1536, where permits themselves, from their inception, provided federal government with unqualified discretion to restrict or terminate rights-of-way; summary judgment in favor of federal defendant was proper. County of Okanogan v
Nat'l Marine Fisheries Serv. (2003, CA9 Wash) 347 F3d 1081, 2003 CDOS 9398, cert den (2004) 541 US 1029, 158 L
Ed 2d 710, 124 S Ct 2094, 58 Envt Rep Cas 2152.
Section 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2), applied to Federal Emergency Management
Agency's provision of flood insurance under National Flood Insurance Act of 1968, 42 USCS §§ 4001-4129, but did not
require FEMA to independently analyze FWS's proposed reasonable and prudent conservation alternatives unless new
information arose between alternatives' proposal and adoption. Fla. Key Deer v Paulison (2008, CA11 Fla) 522 F3d
1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.
While appellee National Marine Fisheries Service's "reasonable and prudent alternative" on fishing and leatherback
turtle takings under 16 USCS § 1536 was prediction, it rested on past performance and expert judgment on future operations, and since appellant environmental groups could not know it would fail, summary judgment to agency was affirmed. Oceana, Inc. v Gutierrez (2007, App DC) 376 US App DC 324, 488 F3d 1020, 64 Envt Rep Cas 1577, 37 ELR
20124.
Because it failed to consult with other agencies as required by § 7(a)(2) of Endangered Species Act, 16 USCS §
1536(a)(2), Coast Guard was deemed to have taken final, judicially-reviewable agency action by not fulfilling its duty
under Ports and Waterways Safety Act, 33 USCS § 1224, to consider environmental factors, i.e., effect of shipping vessel speed limits in coastal waterways on habitat of endangered right whale, when promulgating traffic separation
schemes. Defenders of Wildlife v Gutierrez (2008, App DC) 382 US App DC 312, 532 F3d 913, 67 Envt Rep Cas 1097,
38 ELR 20181.
Where banning hunting of all Mexican ducks would not increase or even tend to increase duck population, there is
no rational basis for regulation prohibiting hunting. Connor v Andrus (1978, WD Tex) 453 F Supp 1037.
Injunction against beach restoration project is denied under 16 USCS § 1536(a)(2), where municipality undertaking
project complied with modified requirements of Fish and Wildlife Service for protecting endangered species of sea turtle, because agency is entitled to modify its opinions. American Littoral Soc. v Herndon (1988, SD Fla) 720 F Supp
942, 20 ELR 20249.
Construction of municipal sewerage discharge tunnel is not enjoined, where (1) Environmental Protection Agency
(EPA) determined that construction of tunnel would not violate Endangered Species Act (16 USCS §§ 1531 et seq.), (2)
evidence did not show that construction or operation of tunnel would jeopardize continued existence of endangered species, (3) proper biological assessments were timely prepared, and (4) construction of tunnel would not preclude development of reasonable alternatives, because EPA's action was not arbitrary or capricious. Bays' Legal Fund v Browner
(1993, DC Mass) 828 F Supp 102, 24 ELR 20081 (criticized in Greater Yellowstone Coalition v Flowers (2003, CA10
Wyo) 321 F3d 1250, 55 Envt Rep Cas 2097).
U.S. Forest Service must be enjoined from announcing, awarding, permitting, or conducting any new timber sales,
range activities, mining activities, or road building projects until formal consultation on land resource management
plans for certain national forests is completed, but may proceed with ongoing and announced activities identified satisfactorily as "not likely to adversely affect" endangered salmon, because Service was required to reinitiate consultation
with National Marine Fisheries Service on effects of plans on salmon when several species were listed as threatened or
endangered, under 16 USCS § 1536(a)(2). Pacific Rivers Council v Thomas (1995, DC Idaho) 873 F Supp 365, 40 Envt
Rep Cas 1595, 25 ELR 20765 (criticized in Southwest Ctr. for Biological Diversity v United States Forest Serv. (2000,
DC Ariz) 82 F Supp 2d 1070).
Forest Service cannot allow any livestock to be turned out on 48,000-acre tract of land until consultation with National Marine Fisheries Service (NMFS) is completed, where land is critical habitat for Snake River spring/summer
Chinook salmon, because mere unilateral determination that grazing will have no adverse effect on salmon is insufficient, under 16 USCS §§ 1536(a)(2) and (d), absent biological opinion or concurrence by NMFS. Pacific Rivers Council
v Thomas (1996, DC Idaho) 936 F Supp 738, 43 Envt Rep Cas 1460, 27 ELR 20163.
Page 120
16 USCS § 1536
National Marine Fisheries Service was not required to balance benefit to endangered Steller sea lions against economic and technical burden on fishing industry before approving reasonable and prudent alternatives (RPA) in case
under 16 USCS § 1536 involving interaction between pollock fisheries and sea lions, because guiding standard for determination of RPA was jeopardy to sea lions, not economic impact on third parties such as fishing industry. Greenpeace v National Marine Fisheries Serv. (1999, WD Wash) 55 F Supp 2d 1248, 48 Envt Rep Cas 2035.
Where final environmental impact statement (FEIS) revealed that endangered/threatened flora and fauna species
lists were obtained from, inter alia, United States Fish and Wildlife Service (USFWS), New Mexico Department of
Game and Fish, and Texas Parks and Wildlife Department, defendant United States Air Force consulted with USFWS
on ongoing basis concerning actions which overlapped Air Force's bomber training area and various state agencies were
consulted in connection with species of specific concern to each state, and FEIS set forth results of Air Force's analysis
of impact of aircraft emissions on threatened wildlife for each alternative, plaintiffs' assertions that (1) Air Force failed
to discuss effects of aircraft pollutants or (2) in any way indicated intention to not comply with legislation and/or regulations pertinent to endangered or threatened species were wholly without merit. Welch v United States Air Force (2003,
ND Tex) 249 F Supp 2d 797, vacated, remanded (2004, CA5) 116 Fed Appx 3, 59 Envt Rep Cas 1193, reh gr, in part,
reh den, in part (2005, CA5) 2005 US App LEXIS 1620.
There was substantial evidence in administrative record showing that Federal Emergency Management Agency's
implementation of National Flood Insurance Program "may affect" Puget Sound Chinook salmon, thus triggering formal
consultation requirement of § 7(a)(2) (16 USCS § 1536(a)(2)) of Endangered Species Act. Nat'l Wildlife Fed'n v FEMA
(2004, WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.
16 USCS § 1536(b)(4) could permit incidental takings and defendant Fish & Wildlife Service's determination that
restricting water flow, while negatively affecting endangered bird, was important in maintaining nesting grounds for
another endangered bird was entitled to deference; thus, challenge by plaintiff Indian Tribe to agency's biological opinion, failed on summary judgment. Miccosukee Tribe of Indians of Fla. v United States (2007, SD Fla) 528 F Supp 2d
1317, affd in part and revd in part on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929,
39 ELR 20097, 21 FLW Fed C 1780.
Environmental groups were entitled to preliminary injunction prohibiting livestock grazing on allotments in Malheur National Forest (MNF) because they demonstrated likelihood of success on their claim that United States Forest
Service and National Marine Fisheries Service acted arbitrarily under 5 USCS § 706 and violated 16 USCS §§
1536(a)(2) and 1538(a)(1) in managing public lands supporting threatened steelhead trout in in MNF; groups also made
sufficient showing that irreparable injury would occur to threatened steelhead trout due to grazing on allotments during
2008 grazing season. Or. Natural Desert Ass'n v Kimbell (2008, DC Or) 68 Envt Rep Cas 1632.
Unpublished Opinions
Unpublished: In case in which orchid growers association challenged final rule by Department of Agriculture's
Animal and Plant Health Inspection Service (APHIS) permitting importation of certain orchids from Taiwan in growing
media, district court's entry of summary judgment in favor of U.S. Department of Agriculture and U.S. Department of
Interior was affirmed; as required by 16 USCS § 1536(a)(2), APHIS had consulted with U.S. Department of Interior's
Fish and Wildlife Service, and two agencies had engaged issue at great length, with apparent care, and on basis of at
least 20 years experience importing orchids in bare-root form; association failed to show that decision was arbitrary.
Hawai'i Orchid Growers Ass'n v Johanns (2007, App DC) 249 Fed Appx 204, 65 Envt Rep Cas 2062.
39.--Campground operation
National Park Service (NPS) may continue to operate campground in national park habitat of grizzly bear, which is
endangered species, while environmental impact statement on campground is prepared under 16 USCS § 1536(a)(1),
where interim management plan for campground, which provides for continued operation, is judged by National Fish
and Wildlife Service not to jeopardize continued existence of grizzly bear. National Wildlife Federation v National
Park Service (1987, DC Wyo) 669 F Supp 384.
Decision by National Park Service to continue to operate certain campground in national park that is in habitat of
grizzly bear, which is endangered species, while environmental impact statement (EIS) is being prepared is proper under 16 USCS § 1536(d), where operation (1) is at reduced level, and (2) may be terminated, modified, or made permanent depending on EIS findings, because situation is not as extreme as that which § 1536(d) is intended to correct. National Wildlife Federation v National Park Service (1987, DC Wyo) 669 F Supp 384.
Page 121
16 USCS § 1536
40.--Dam construction and operation
Where Tennessee Valley Authority has failed to take necessary steps to insure that impoundment of river will not
jeopardize survival of snail darter or modify its habitat, continued work, directed toward impoundment, violates 16
USCS § 1536. Hill v Tennessee Valley Authority (1977, CA6 Tenn) 549 F2d 1064, 9 Envt Rep Cas 1737, 7 ELR 20172,
affd (1978) 437 US 153, 98 S Ct 2279, 57 L Ed 2d 117, 11 Envt Rep Cas 1705, 8 ELR 20513 (superseded by statute on
other grounds as stated in Board of Governors of Federal Reserve System v Dimension Financial Corp. (1986) 474 US
361, 106 S Ct 681, 88 L Ed 2d 691, CCH Fed Secur L Rep P 92437) and (superseded by statute on other grounds as
stated in Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR
20572) and (superseded by statute on other grounds as stated in Pacific Rivers Council v Thomas (1994, CA9 Or) 30
F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt Rep Cas 1078, 24 ELR 21367) and (superseded by
statute on other grounds as stated in Rio Grande Silvery Minnow v Keys (2002, DC NM) 356 F Supp 2d 1222) and (superseded by statute on other grounds as stated in Sierra Club v Strock (2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep
Cas 2082, 37 ELR 20188, 20 FLW Fed D 995) and (superseded by statute on other grounds as stated in Hoosier Envtl.
Council v United States DOT (2007, SD Ind) 2007 US Dist LEXIS 90840) and (superseded by statute on other grounds
as stated in Grand Canyon Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).
In connection with challenge to Secretary's refusal to sell water from dam in reservoir for municipal and industrial
use in neighboring cities, (1) Endangered Species Act (16 USCS §§ 1531 et seq.) requires Secretary to give priority to
conserving endangered species of fish in reservoir so long as they are endangered and threatened, and (2) Secretary did
not abuse discretion both in determining that there was no excess water to sell for municipal and industrial purposes
after obligations under Act were fulfilled, and in rejecting alternate plan for operation of reservoir. Carson-Truckee
Water Conservancy Dist. v Clark (1984, CA9 Nev) 741 F2d 257, 21 Envt Rep Cas 2111, 14 ELR 20797, cert den (1985)
470 US 1083, 85 L Ed 2d 141, 105 S Ct 1842.
District court properly ruled that National Marine Fisheries Service's (NMFS) 2004 Biological Opinion, which
found that proposed operations of Federal Columbia River Power System dams for 2004 through 2014 would not jeopardize 13 listed endangered salmonoid species, was structurally flawed under 16 USCS § 1536; NMFS's jeopardy analysis was structurally flawed because it used hypothetical "reference operation" to exclude from proposed action's impacts
effects of related "nondiscretionary" operations, because it failed to incorporate degraded baseline conditions, and because it did not adequately consider proposed action's impacts on listed species' chances of recovery. Nat'l Wildlife
Fed'n v Nat'l Marine Fisheries Serv. (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.
District court properly found that National Marine Fisheries Service's (NMFS) biological opinion, which found that
dam operations would not jeopardize listed salmonoid species, was structurally flawed under Endangered Species Act,
16 USCS § 1536; NMFS's jeopardy analysis was flawed because it used hypothetical "reference operation" to exclude
from proposed action's impacts effects of related "nondiscretionary" operations, failed to incorporate degraded baseline
conditions, and failed to adequately consider proposed action's impacts on listed species' chances of recovery. Nat'l
Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR 20099.
District court properly held that National Marine Fisheries Service (NMFS) violated Endangered Species Act, 16
USCS § 1536, by failing to ensure that proposed dam operations would not destroy or adversely modify critical habitat
for any listed fish; NMFS's adverse modification analysis was deficient because it did not adequately consider recovery
needs, and critical habitat determination was arbitrary and capricious under 5 USCS § 706(2)(A) because it did not adequately consider proposed actions' short-term negative effects in context of affected species' life cycles and migration
patterns, relied on uncertain long-term improvements to critical habitat to offset certain short-term degradation, and
concluded that species' critical habitat was sufficient for recovery without adequate information to make that determination. Nat'l Wildlife Fedn v Nat'l Marine Fisheries Serv. (2008, CA9 Or) 524 F3d 917, 66 Envt Rep Cas 1449, 38 ELR
20099.
FERC complied with 16 USCS § 1536 when it directed power company to increase water released from dam where
it satisfied its duty to confer with Fish and Wildlife Service on endangered snail's habitat, and Service was deeply involved and recommended increased flow. Alabama Power Co. v FERC (1992, App DC) 298 US App DC 351, 979 F2d
1561, 138 PUR4th 352, 23 ELR 20238.
Action to compel Secretary to store water in reservoir for nearby municipal and industrial use will be dismissed
since Secretary's plan of operating dam so as to restore species of lake fish to nonendangered status is supported by substantial evidence and since Secretary is required, under Endangered Species Act (16 USCS §§ 1531 et seq.) to give lake
Page 122
16 USCS § 1536
fish priority over all other purposes of dam until fish are no longer classified as endangered or threatened. Carson-Truckee Water Conservancy Dist. v Watt (1982, DC Nev) 549 F Supp 704, 13 ELR 20535.
Army Corps of Engineers did not exceed its statutory authority in denying dam developers nationwide temporary
permit to discharge sand and gravel during course of dam construction on tributary of navigable river, where Corps determined that operation of dam and altered water flow would have adverse impact on whooping cranes whose critical
habitat exists some 250 to 300 miles downstream. Riverside Irrigation Dist. v Andrews (1983, DC Colo) 568 F Supp
583, 19 Envt Rep Cas 1550, 13 ELR 21091, affd (1985, CA10 Colo) 758 F2d 508, 22 Envt Rep Cas 1773, 15 ELR
20333.
Preliminary injunctive relief was granted where agency's failure to establish permissible "take" of protected salmon
species or reasonable surrogate for such "take" eliminated critical check against agency action under Endangered Species Act, and environmental groups challenging agency's determination established that proposed action (dredging of
Snake River) was likely to adversely modify critical habitat of endangered species (salmon). Nat'l Wildlife Fed'n v Nat'l
Marine Fisheries Serv. (2002, WD Wash) 235 F Supp 2d 1143.
Bureau of Reclamation was granted summary judgment on claim of landowners and irrigation districts that it
breached their water distribution contracts under Reclamation Act of 1902, 43 USCS §§ 371 et seq., by temporarily reducing irrigation water when forecasted drought was likely to affect three endangered species because passage of Endangered Species Act was sovereign act that could not give rise to liability for failing to deliver water. Klamath Irrigation Dist. v United States (2007) 75 Fed Cl 677.
41.--Forest management
District court erred in finding that federal officials had not violated 16 USCS § 1536(a)(2) in preparing biological
assessment for timber sale where there was no indication in record that area chosen by federal agency as geographic
area for considering effects on grizzly bear coincided with action required to be analyzed under Endangered Species
Act, 16 USCS §§ 1531 et seq. Native Ecosystems Council v Dombeck (2002, CA9 Mont) 304 F3d 886, 2002 CDOS
9497, 2002 Daily Journal DAR 10669, 55 Envt Rep Cas 1712, 33 ELR 20042.
Forest Service and Fish and Wildlife Service (FWS) formally consulted twice, once on programmatic level and
once for timber harvesting project specifically, and after each consultation, FWS issued "no jeopardy" opinions based
on existing data; while future surveys and things that occurred during project itself might have provided new information about presence and habitat of endangered Indiana bat in project area, conclusions of Forest Service and FWS
were well supported by administrative record, which included all available data that then existed on Indiana bat and
project area; thus, Forest Service and FWS did not act arbitrarily and capriciously in determining that existing data on
Indiana bats was sufficient to conclude that project was not likely to jeopardize species and, therefore, no violation of
Endangered Species Act, 16 USCS §§ 1531-1544, occurred. Heartwood, Inc. v United States Forest Serv. (2004, CA8
Mo) 380 F3d 428, 34 ELR 20083.
Forest Service violated § 7 of Endangered Species Act, 16 USCS § 1536, when it failed to re-initiate consultation
with Fish and Wildlife Service after it failed for several years to adequately monitor cattle grazing on plot of national
forest land; although it initiated informal consultation, action was not moot and declaratory judgment was appropriate in
environmental group's 16 USCS § 1540(g) action against it because such judgment would govern Forest Service's actions for remainder of grazing permit period. Forest Guardians v Johanns (2006, CA9 Ariz) 450 F3d 455, 36 ELR
20109.
Incidental Take Statement which would have authorized taking of all northern spotted owls associated with full
timber harvest of 22,227 acres was arbitrary and capricious and violated Endangered Species Act, 16 USCS §§
1531-1544, because underlying Biological Opinion had been withdrawn, it failed to provide numerical limit on take
without explaining why such limit was impracticable, and it could never trigger reinitiation of consultation. Or. Natural
Res. Council v Allen (2007, CA9 Or) 476 F3d 1031, 64 Envt Rep Cas 1033, 37 ELR 20048.
Issuance of permanent injunction was affirmed because United States Forest Service violated National Environmental Policy Act (NEPA) and Endangered Species Act when it promulgated State Petitions Rule with regard to management of roadless areas in national forests and district court did not abuse its discretion in ordering Forest Service to
comply with Roadless Rule as remedy for these procedural shortcomings. Cal. ex rel. Lockyer v USDA (2009, CA9 Cal)
575 F3d 999, 69 Envt Rep Cas 1161, 39 ELR 20172, amd on other grounds (2009, CA9 Cal) 2009 US App LEXIS 19218
and reprinted as amd (2009, CA9 Cal) 2009 US App LEXIS 19219.
Page 123
16 USCS § 1536
United States Fish and Wildlife Service's decision to capture and remove from wild habitat all California condors,
which represented policy change, was not arbitrary and capricious, nor did it fail to satisfy requirements of 16 USCS §§
1536 and 1539, despite its documentation's succinctness, since environmental assessment and addendum adequately
disclosed concerns underlying decision and demonstrated rational basis. National Audubon Soc. v Hester (1986, App
DC) 255 US App DC 191, 801 F2d 405.
Court of Federal Claims erred in finding that violation of 150-day guideline of Endangered Species Act, 16 USCS §
1536(b), had no bearing on reasonableness of Forest Service two-year suspension of timber contracts. Scott Timber Co.
v United States (2003, CA FC) 333 F3d 1358, 33 ELR 20232, reh den (2003, CA FC) 2003 US App LEXIS 22502.
Cross-motions for summary judgment are granted to federal defendants and agency's adoption of forest management plan is declared lawful, where defendant representing timber agency asserted that federal agencies violated duty
under 43 USCS § 1181a to manage land for timber production under principle of sustained yield, since federal defendants had duty to comply at same time with ESA's mandate to conserve endangered species by protecting their habitats,
16 USCS § 1536(a). Seattle Audubon Soc'y v Lyons (1994, WD Wash) 871 F Supp 1291, 25 ELR 20711, affd (1996,
CA9 Wash) 80 F3d 1401, 96 CDOS 2449, 96 Daily Journal DAR 4131, 42 Envt Rep Cas 1568, 26 ELR 20980.
Environmental group's claim seeking determination that U.S. Forest Service (USFS) and Bureau of Indian Affairs
violated 16 USCS § 1536(a)(2) by failing to consult with U.S. Fish and Wildlife Service about programmatic land
management plans that affect threatened Mexican spotted owl and its critical habitat is granted summarily, where land
resource management plans (LRMPs) make programmatic decisions affecting how forest resources will be utilized over
10-to 15-year planning period, interim directives (IDs) are policies to provide USFS land managers guidelines for carrying out conservation programs to maintain viability of Mexican spotted owl, and management recommendations for
Northern Goshawk (MRNG) is programmatic planning document that drives configuration of timber sales and other
USFS management activities in owl habitat, because LRMPs, IDs, and MRNG are agency actions that trigger consultation process in § 1536(a)(2). Silver v Babbitt (1995, DC Ariz) 924 F Supp 976, 26 ELR 21374.
Agriculture Secretary's proposed emergency sale of salvage timber in national forest may proceed, where severe
forest fire in 1994 burned or damaged more than 27,500 acres, requiring swift action to allow for recovery of merchantable timber, even though environmental group could proffer contradictory expert opinion on sale's impact on
Mexican spotted owl, because Secretary reasonably relied on Forest Service biologist's 16 USCS § 1536(a)(2) assessment that proposed sale would have no effect on owl. Southwest Ctr. for Biological Diversity v Glickman (1996, DC
Ariz) 932 F Supp 1189, 27 ELR 20186, affd sub nom Southwest Ctr. for Biological Diversity v United States Forest
Serv. (1996, CA9 Ariz) 100 F3d 1443, 96 CDOS 8308, 96 Daily Journal DAR 13823, 43 Envt Rep Cas 2077, 27 ELR
20455 (criticized in Rhodes v Johnson (1998, CA7 Ill) 153 F3d 785, 47 Envt Rep Cas 1344, 29 ELR 20092) and (criticized in Heartwood, Inc. v United States Forest Serv. (2001, WD Mich) 2001 US Dist LEXIS 20602).
U.S. Forest Service's Texas Red-Cockaded Woodpecker Plan met requirements of §§ 7, 9 of Endangered Species
Act, 16 USCS §§ 1536, 1539, where it included establishment of program of mid-story hardwood removal, preserved
old-growth pine trees needed by red-cockaded woodpecker for nesting, and thinned forest in and around red-cockaded
woodpecker colonies to provide necessary habitat of open, park-like stands of pine that were preferred by species. Sierra Club v Veneman (2003, ED Tex) 273 F Supp 2d 764.
U.S. Forest Service was not required to engage in formal consultation with Fish and Wildlife Service with respect
to effects of national forest logging project on Canada lynx where considerable evidence supported Forest Service's
conclusion that neither lynx nor lynx habitat was present in forest. Habitat Educ. Ctr., Inc. v Bosworth (2005, ED Wis)
363 F Supp 2d 1090, 60 Envt Rep Cas 1421.
Interpretation by Forest Service and Fish & Wildlife Service of regulations implementing Endangered Species Act
(ESA), 16 USCS §§ 1531 et seq., and their precise implementation in use of tiered consultation system was matter best
left to agencies and owed deference by court; use of such system had impeded their fulfilling all requirements mandated
by ESA and its implementing regulations when considering impact on federally endangered Indiana bat of two timber
sale projects in Wayne National Forest and implementation of amendment to Wayne National Forest's Land and Resource Management Plan. Buckeye Forest Council v United States Forest Serv. (2005, SD Ohio) 378 F Supp 2d 835.
State Petitions for Inventoried Roadless Area Management Rule, 70 Fed. Reg. 25,654 (May 13, 2005), had been
improperly adopted by federal agencies without environmental analysis as required by National Environmental Policy
Act, 42 USCS § 4332, and without consultation as to potentially affected, endangered or threatened species as required
by Endangered Species Act, 16 USCS § 1536; State Petitions Rule, which eliminated uniform national protection of
Page 124
16 USCS § 1536
roadless areas in national forests from road construction and timber harvesting and allowed states to petition to alter
level of protection of roadless areas, was not mere procedural change but substantive repeal of previous Roadless Area
Conservation Rule, 66 Fed. Reg. 3,244 (Jan. 12, 2001). Cal. ex rel. Lockyer v United States Dep't of Agric. (2006, ND
Cal) 459 F Supp 2d 874, 64 Envt Rep Cas 1040 (criticized on other grounds in Wyoming v United States Dep't of Agric.
(2008, DC Wyo) 570 F Supp 2d 1309, 38 ELR 20212) and affd (2009, CA9 Cal) 575 F3d 999, 69 Envt Rep Cas 1161,
39 ELR 20172, amd on other grounds (2009, CA9 Cal) 2009 US App LEXIS 19218 and reprinted as amd (2009, CA9
Cal) 2009 US App LEXIS 19219.
Fish & Wildlife Service's "no jeopardy" finding for grizzly bear habitat was declared unlawful and set aside because its use of existing degraded habitat conditions brought on by Forest Service's refusal to enforce its own rules was
contrary to 16 USCS § 1536 of Endangered Species Act (ESA), 16 USCS §§ 1533 et seq. Swan View Coalition v Barbouletos (2008, DC Mont) 38 ELR 20142, summary judgment gr, in part, summary judgment den, in part,, motion gr,
claim dismissed, as moot (2008, DC Mont) 2008 US Dist LEXIS 108211, motion gr, in part, motion den, in part, injunction gr (2009, DC Mont) 639 F Supp 2d 1187 and affd (2009, CA9 Mont) 348 Fed Appx 295.
Because U.S. Forest Service had been found to have violated National Environmental Policy Act (NEPA), 42
USCS §§ 4321-4347, by failing to make biological assessments under 16 USCS § 1536(c) to determine impact of its
Region Eight forest management plans on proposed, endangered, threatened, and sensitive species, injunctive relief was
proper to enjoin Service against authorizing future forest projects, pending compliance with NEPA. Sierra Club v United States Forest Serv. (2008, ND Ga) 593 F Supp 2d 1306.
Environmental groups were not entitled to judgment reversing administrative decisions of United States Forest Service (USFS) in approving 2003 Ice Storm Project and revised forest plan for Daniel Boone National Forest in Kentucky;
USFS's explanation provided rational basis for its decision not to reinitiate formal consultation with Fish and Wildlife
Service under 16 USCS § 1536 based on outbreaks of White Nose Syndrome in bat populations in other national forests.
Heartwood, Inc. v Agpaoa (2009, ED Ky) 611 F Supp 2d 675, revd on other grounds, remanded (2010, CA6 Ky) 628
F3d 261, 2010 FED App 374P.
Ethics organization was entitled to summary judgment in its action against U.S. Forest Service (USFS) under National Environmental Policy Act; USFS violated 42 USCS § 4332(2)(C) in failing to prepare Environmental Impact
Statement in relation to use of chemical fire retardants to fight wildfires on USFS lands because jeopardy findings of
Fish and Wildlife Service and National Marine Fisheries Service under 16 USCS § 1536 constituted significant impacts
that were not alleviated by reasonable and prudent alternative that required USFS to develop species-specific measures
to be implemented during fire response emergencies. Forest Serv. Emples. v United States Forest Serv. (2010, DC
Mont) 726 F Supp 2d 1195.
42.--Land development
Fish and Wildlife Service did not violate 16 USCS §§ 1536(a)(2) or 1539(a) when it issued permit authorizing
"taking" of Mission Blue butterflies from area designated as site of proposed residential and commercial development,
since (1) biological field study conducted by Service adequately supports findings that taking will not appreciably reduce likelihood of survival of butterflies and (2) comprehensive conservation plans submitted by Service contain many
measures to "minimize and mitigate" impact of project upon butterfly. Friends of Endangered Species, Inc. v Jantzen
(1985, CA9 Cal) 760 F2d 976, 22 Envt Rep Cas 1817, 15 ELR 20455.
Fish and Wildlife Service which conducted biological study of wilderness area in order to determine effect of proposed construction on certain endangered species, and which subsequently issued development permit for area, did not
violate Endangered Species Act (16 USCS §§ 1531 et seq.), since Service considered all necessary factors in concluding
that proposed development will not threaten continued existence of endangered species, and since Service expressly
endorsed finding that proposed development may actually aid survival of particular species. Friends of Endangered
Species, Inc. v Jantzen (1984, ND Cal) 589 F Supp 113, 20 Envt Rep Cas 1811, affd (1985, CA9 Cal) 760 F2d 976, 22
Envt Rep Cas 1817, 15 ELR 20455.
Plaintiffs are not entitled to preliminary injunctions staying issuance of permit by Fish and Wildlife Service which
allows incidental taking of 3 federally protected endangered species by allowing commercial development of part of
mountain, since Service reasonably responded to all of material criticisms of biological study and permit findings set
forth by plaintiff in its papers during public comment period, and since there is no evidence of bad faith or unreasonable
conduct by agency. Friends of Endangered Species, Inc. v Jantzen (1984, ND Cal) 596 F Supp 518, 20 Envt Rep Cas
1645.
Page 125
16 USCS § 1536
No further review is warranted of large development project, including domed stadium, on part of Missouri River
Bottoms floodplains, where Army Corps of Engineers allowed nearly 2 years for public notice and comment on original
proposal, and informal reevaluation following addition of stadium generated administrative record of some 66 pounds,
because (1) Corps rationally concluded under 33 USCS § 1344 that wetlands loss would be fully mitigated by developer's agreement to establish more than 10 acres of wetlands at other location, (2) trial evidence demonstrated that project
will not cause any nonconformance with Missouri's state implementation plans under Clean Air Act (42 USCS § 7506),
(3) possible disruption to bald eagles in area was analyzed and determined to be minimal under permit conditions, in
compliance with 16 USCS § 1536, and (4) Corps amply considered potential impacts of increased traffic and surface
water runoff to be caused by stadium and its parking lot. Missouri Coalition for Environment v Corps of Engineers of
United States Army (1988, ED Mo) 678 F Supp 790, 27 Envt Rep Cas 1822, 19 ELR 20581, affd (1989, CA8 Mo) 866
F2d 1025, 28 Envt Rep Cas 1902, 19 ELR 20588, reh den (1989, CA8) 1989 US App LEXIS 4033 and cert den (1989)
493 US 820, 107 L Ed 2d 42, 110 S Ct 76, 30 Envt Rep Cas 1272 and (criticized in Earth Protector v Jacobs (1998, DC
Minn) 993 F Supp 701).
Wildlife groups are entitled to declaratory and partial injunctive relief requiring Federal Emergency Management
Agency to consult with U.S. Fish and Wildlife Service, pursuant to 16 USCS § 1536(a)(2), to determine effects of National Flood Insurance Program (NFIP) in Monroe County on endangered Florida Key deer, where they have demonstrated substantial likelihood that causal relationship exists between availability of flood insurance and rate or amount of
new development, because statute mandates consultation since NFIP has been shown to spur development which
threatens habitat and recovery of endangered deer. Florida Key Deer v Stickney (1994, SD Fla) 864 F Supp 1222, 39
Envt Rep Cas 1641, 8 FLW Fed D 362.
Where environmental groups sought permanent injunction, preventing FEMA from issuing flood insurance for any
new development in suitable habitats of several endangered and threatened species in Florida Keys until FEMA and
U.S. Fish and Wildlife Service had complied with requirements of Endangered Species Act, 16 USCS §§ 1531 et seq.,
and Administrative Procedure Act, 5 USCS §§ 551 et seq. and §§ 701 et seq., § 7(d) of ESA, 16 USCS § 1536(d) did not
permit FEMA to continue issuing new flood insurance during remand period because § 7(d) did not excuse federal
agencies from meeting requirements of § 7(a)(2) of Endangered Species Act, 16 USCS § 1536(a)(2). Fla. Key Deer v
Brown (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas
1225, 38 ELR 20083, 21 FLW Fed C 515.
Where environmental groups contended that U.S. Fish and Wildlife Service (FWS) violated its own regulation by
failing to reinitiate consultation pursuant to Endangered Species Act, 16 USCS §§ 1531-1544, § 7, 16 USCS § 1536, on
city's incidental take permit (ITP) once FWS completed recovery plan for vernal pool species, federal district court was
troubled that FWS, pursuant to 16 USCS § 1533, was significantly behind schedule regarding completion of recovery
plans; accordingly, during reinitiation process that was subsequently ordered, FWS was to consider standards and other
information in its vernal pool recovery plan to evaluate effect of city's ITP on vernal pool species and whether mitigation was adequate. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070, injunction gr,
summary judgment gr, in part, summary judgment den, in part on other grounds, remanded (2006, SD Cal) 470 F Supp
2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31,
66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011 US App LEXIS 950.
Section 7 of Endangered Species Act (ESA) only applied to actions in which there was discretionary Federal involvement or control, and because defendant Army Corps of Engineers was charged only with evaluating and ensuring
that proposed action--artificial breaching of sand bar between two lakes and Pacific Ocean at certain water level--complied with ESA, and Corps had engaged in requiredconsultations and appropriately concluded that permit's level
complied with ESA, contrary to plaintiff water district's argument, Corps' responsibilities under ESA did not extend
further. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F
Supp 2d 242.
Under 16 USCS § 1536(b)(3)(A), illegal take of species occurred when take of that species was result of action by
person or agency, and in contrast, takes that resulted from acts of nature did not fall within prohibition of § 9 of Endangered Species Act and under 16 USCS § 1532(19) could not be blamed on Federal agency, and because rainfall and other precipitation caused natural filling of lakes in question and as lakes filled, surrounding areas flood which could cause
take of listed species and their habitats, that was not illegal take not result of artificial breaching of sand bar between
lakes and Pacific Ocean as permitted in defendant Army Corps of Engineers' permit and plaintiff water district's argument to contrary failed. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist
Col) 538 F Supp 2d 242.
Page 126
16 USCS § 1536
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
Page 127
16 USCS § 1536
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. §
Page 128
16 USCS § 1536
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
Page 129
16 USCS § 1536
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 §§
Page 130
16 USCS § 1536
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.
Page 131
16 USCS § 1536
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
Page 132
16 USCS § 1536
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
Page 133
16 USCS § 1536
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 indica-
Page 134
16 USCS § 1536
tors 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
Page 135
16 USCS § 1536
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.
7 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 § 1537
§ 1537. International cooperation
(a) Financial assistance. As a demonstration of the commitment of the United States to the worldwide protection of
endangered species and threatened species, the President may, subject to the provisions of section 1415 of the Supplemental Appropriation Act, 1953 (31 U.S.C. 724) [31 USCS § 1306], use foreign currencies accruing to the United States
Government under the Food for Peace Act [7 USCS §§ 1691 et seq.] or any other law to provide to any foreign country
(with its consent) assistance in the development and management of programs in that country which the Secretary determines to be necessary or useful for the conservation of any endangered species or threatened species listed by the
Secretary pursuant to section 4 of this Act [16 USCS § 1533]. The President shall provide assistance (which includes,
but is not limited to, the acquisition, by lease or otherwise, of lands, waters, or interests therein) to foreign countries
under this section under such terms and conditions as he deems appropriate. Whenever foreign currencies are available
for the provision of assistance under this section, such currencies shall be used in preference to funds appropriated under
the authority of section 15 of this Act [16 USCS § 1542].
(b) Encouragement of foreign programs. In order to carry out further the provisions of this Act, the Secretary, through
the Secretary of State, shall encourage-(1) foreign countries to provide for the conservation of fish or wildlife and plants including endangered species and
threatened species listed pursuant to section 4 of this Act [16 USCS § 1533];
(2) the entering into of bilateral or multilateral agreements with foreign countries to provide for such conservation;
and
Page 136
16 USCS § 1537
(3) foreign persons who directly or indirectly take fish or wildlife or plants in foreign countries or on the high seas
for importation into the United States for commercial or other purposes to develop and carry out with such assistance as
he may provide, conservation practices designed to enhance such fish or wildlife or plants and their habitat.
(c) Personnel. After consultation with the Secretary of State, the Secretary may-(1) assign or otherwise make available any officer or employee of his department for the purpose of cooperating with
foreign countries and international organizations in developing personnel resources and programs which promote the
conservation of fish or wildlife or plants; and
(2) conduct or provide financial assistance for the educational training of foreign personnel, in this country or abroad,
in fish, wildlife, or plant management, research and law enforcement and to render professional assistance abroad in
such matters.
(d) Investigations. After consultation with the Secretary of State and the Secretary of the Treasury, as appropriate, the
Secretary may conduct or cause to be conducted such law enforcement investigations and research abroad as he deems
necessary to carry out the purposes of this Act.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 8, 87 Stat. 892; Dec. 28, 1979, P.L. 96-159, § 5, 93 Stat. 1228; June 18, 2008, P.L.
110-246, Title III, Subtitle A, § 3001(b)(1)(A), (2)(N), 122 Stat. 1820.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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.
Explanatory notes:
In subsec. (a), "31 USCS § 1306" has been inserted in brackets pursuant to § 4(b) of Act Sept. 13, 1982, P.L. 97-258,
which appears as a note preceding 31 USCS § 101. Section 1 of such Act enacted Title 31 as positive law, and § 4(b) of
such Act provided that a reference to a law replaced by § 1 of such Act is deemed to refer to the corresponding provision enacted by such Act.
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:
1979. Act Dec. 28, 1979, in subsec. (b), in para. (1), inserted "and plants", and in para. (3), inserted "or plants"; in subsec. (c)(1), inserted "or plants"; and deleted subsec. (e) which read: "The President is authorized and directed to designate appropriate agencies to act as the Management Authority or Authorities and the Scientific Authority or Authorities
pursuant to the Convention. The agencies so designated shall thereafter be authorized to do all things assigned to them
under the Convention, including the issuance of permits and certificates. The agency designated by the President to
communicate with other parties to the Convention and with the Secretariat shall also be empowered, where appropriate,
in consultation with the State Department, to act on behalf of and represent the United States in all regards as required
by the Convention. The President shall also designate those agencies which shall act on behalf of and represent the
Page 137
16 USCS § 1537
United States in all regards as required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.".
2008. Act June 18, 2008 (effective 5/22/2008, as provided by § 4(b) of such Act, which appears as 7 USCS § 8701
note), in subsec. (a), substituted "Food for Peace Act" for "Agricultural Trade Development and Assistance Act of
1954".
Other provisions:
Ex. Or. No. 11911 revoked. Ex. Or. No. 11911 of Apr. 13, 1976, 41 Fed. Reg. 15683, which formerly appeared as a
note to this section, was revoked by Ex. Or. No. 12608 of Sept. 9, 1987, § 1, 52 Fed. Reg. 34617. It provided that for
purposes of the Convention on International Trade in Endangered Species of Wild Fauna and Flora the Secretary of the
Interior be designated as the Management Authority and established the Endangered Species Scientific Authority as the
Scientific Authority, with the Secretary of the Interior designated to act on behalf of the United States in all regards as
required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.
Protection and conservation of sea turtles. Act Nov. 21, 1989, P.L. 101-162, Title IV, § 609, 103 Stat. 1037, provides:
"(a) The Secretary of State, in consultation with the Secretary of Commerce, shall, with respect to those species of
sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June
29, 1987-"(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other
nations for the protection and conservation of such species of sea turtles;
"(2) initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have
persons or companies engaged in, commercial fishing operations which, as determined by the Secretary of Commerce,
may affect adversely such species of sea turtles, for the purpose of entering into bilateral and multilateral treaties with
such countries to protect such species of sea turtles;
"(3) encourage such other agreements to promote the purposes of this section with other nations for the protection
of specific ocean and land regions which are of special significance to the health and stability of such species of sea
turtles;
"(4) initiate the amendment of any existing international treaty for the protection and conservation of such species
of sea turtles to which the United States is a party in order to make such treaty consistent with the purposes and policies
of this section; and
"(5) provide to the Congress by not later than one year after the date of enactment of this section-"(A) a list of each nation which conducts commercial shrimp fishing operations within the geographic range of
distribution of such sea turtles;
"(B) a list of each nation which conducts commercial shrimp fishing operations which may affect adversely
such species of sea turtles; and
"(C) a full report on-"(i) the results of his efforts under this section; and
"(ii) the status of measures taken by each nation listed pursuant to paragraph (A) or (B) to protect and conserve such sea turtles.
"(b)
(1) In general. The importation of shrimp or products from shrimp which have been harvested with commercial
fishing technology which may affect adversely such species of sea turtles shall be prohibited not later than May 1, 1991,
except as provided in paragraph (2).
"(2) Certification procedure. The ban on importation of shrimp or products from shrimp pursuant to paragraph (1)
shall not apply if the President shall determine and certify to the Congress not later than May 1, 1991, and annually
thereafter that-"(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to
that of the United States; and
"(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or
Page 138
16 USCS § 1537
"(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking
of such sea turtles in the course of such harvesting.".
Delegation of authority regarding certification of countries exporting shrimp to the United States. Pres. Mem.
of Dec. 19, 1990, 56 Fed. Reg. 357, provides: "By virtue of the authority vested in me by the Constitution and laws of
the United States of America, including section 609 of the Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1990 (Public Law 101-162) [note to this section] and section 301 of title 3 of
the United States Code, I hereby delegate to the Secretary of State the functions vested in me by section 609(b) of that
Act [note to this section]. The authority delegated by this memorandum may be further redelegated within the Department of State.".
NOTES:
Research Guide:
Am Jur Proof of Facts:
35 Am Jur Proof of Facts 3d, Proof of Standing in Environmental Citizen Suits, p. 493.
Texts:
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection §§ 24.03, 24.05.
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.
Law Review Articles:
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Rosenberry. The effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
Gray. The Endangered Species Act: Reform or Refutation? 13 Hastings W-NW J Env L & Pol'y 1, Winter 2007.
Interpretive Notes and Decisions:
1. Generally; export 2. Import 3. Practice and procedure
1. Generally; export
Guidelines of Endangered Species Scientific Authority are invalid and are to be set aside to extent they authorize
finding that export of bobcats would not be detrimental to survival of species since such findings are not based upon
reliable estimates of bobcat population and data showing total number of bobcats to be killed; Scientific Authority cannot make valid no-detriment finding without reliable estimate of number of bobcats and information concerning number
of animals to be killed in particular season and if that material is not presently available, Scientific Authority must await
its development before it authorizes export of bobcats. Defenders of Wildlife, Inc. v Endangered Species Scientific
Authority (1981, App DC) 212 US App DC 122, 659 F2d 168, 20 Envt Rep Cas 1821, 9 Fed Rules Evid Serv 608, 11
ELR 20306, cert den (1981) 454 US 963, 70 L Ed 2d 378, 102 S Ct 503.
2. Import
Certification procedure specified in § 609(b) of Departments of Commerce, Justice and State, the Judiciary, and
Related Agencies Appropriations Act of 1990 (Act Nov. 21, 1989, P.L. 101-162, Title VI, 103 Stat. 1037, codified as 16
USCS § 1537 note), which prohibits import of shrimp that have been harvested with fishing technology that may harm
sea turtles, is not only way foreign nation may comply with statute; thus, federal government may permit import of individual shipments from uncertified countries if exporters represent that those particular shipments were caught without
use of commercial fishing technology that may adversely affect those species of sea turtles protected by domestic law.
Page 139
16 USCS § 1537
Turtle Island Restoration Network v Evans (2002, CA FC) 284 F3d 1282, 55 Envt Rep Cas 1201, 23 BNA Intl Trade
Rep 2217, 32 ELR 20571, reh den, reh, en banc, den (2002, CA FC) 299 F3d 1373, 24 BNA Intl Trade Rep 1540 and
cert den (2003) 538 US 960, 155 L Ed 2d 511, 123 S Ct 1748, 57 Envt Rep Cas 1832, 25 BNA Intl Trade Rep 1128.
State Department officials are directed to prohibit, not later than May 1, 1996, importation of shrimp or products of
shrimp wherever harvested in wild with commercial fishing technology which may affect adversely those species of sea
turtles conservation of which are subject of regulations promulgated by Commerce Secretary on June 29, 1987, except
as provided in 16 USCS § 1537 note, because officials are not properly enforcing statute by restricting its mandate to
Gulf of Mexico--Caribbean Sea--western Atlantic Ocean. Earth Island Inst. v Christopher (1995) 19 CIT 1461, 913 F
Supp 559, 42 Envt Rep Cas 1196, 17 BNA Intl Trade Rep 2534, app dismd (1996, CA FC) 86 F3d 1178, reported in full
(1996, CA FC) 1996 US App LEXIS 14316.
Various federal agencies are directed to prohibit, not later than May 1, 1996, importation of shrimp or shrimp
products wherever harvested in wild with commercial fishing technology which may affect adversely endangered species of sea turtles, despite request for additional one-year worldwide extension of time, because record shows that sea
turtles continue to die on order of 340 every day by unsafe shrimping methods, and any further modification of date
established by Congress in Appropriations Acts (16 USCS § 1537 note) must be made by Congress. Earth Island Inst. v
Christopher (1996) 20 CIT 460, 922 F Supp 616, 18 BNA Intl Trade Rep 1469.
Federal officials may not allow entry into U.S. of any shrimp or shrimp products harvested in wild by citizens or
vessels of nations which have not been certified in accordance with procedure enacted in 1991, where officials had
proposed substantial revision of procedure and method for implementation of embargo of shrimp harvested in manner
that does not adversely affect sea turtles, because environmental groups showed that revised enforcement approach undermines incentive for countries to become certified, thereby eviscerating goal of Congress in enacting procedure. Earth
Island Inst. v Christopher (1996) 20 CIT 1221, 942 F Supp 597, 18 BNA Intl Trade Rep 2344, 27 ELR 20408.
Embargo enacted by Congress in Act Nov. 21, 1989, P.L. 101-162, Title IV, § 609, 103 Stat. 1037 (16 USCS §
1537 note) may not be enforced by Departments of State and Commerce, and their officials, employees, servants, sureties and assigns, in such manner as to allow entry into United States of any shrimp or products from shrimp harvested in
wild by citizens or vessels of nations which have not been certified in accordance with § 609(b)(2). Earth Island Inst. v
Christopher (1996) 20 CIT 1221, 942 F Supp 597, 18 BNA Intl Trade Rep 2344, 27 ELR 20408.
Shrimp shipments from China, Pakistan, Thailand, and India may continue to be imported, even though these countries have not yet been certified in accordance with "turtle law" (16 USCS § 1537 note), because sufficient proof exists
that shrimp from these countries were caught manually or by other methods that do not endanger sea turtles. Earth Island Inst. v Christopher (1996) 20 CIT 1389, 948 F Supp 1062, 18 BNA Intl Trade Rep 2516, vacated, remanded on
other grounds sub nom Earth Island Inst. v Albright (1998, CA FC) 147 F3d 1352, 20 BNA Intl Trade Rep 1193, 28
ELR 21421.
3. Practice and procedure
16 USCS § 1537(b) deals with subject within exclusive jurisdiction of Court of International Trade, while § 1537(a)
deals with subject outside jurisdiction of any federal court; therefore, District Court has no jurisdiction over suit brought
by environmental organization to enforce § 1537. Earth Island Inst. v Christopher (1993, CA9 Cal) 6 F3d 648, 93
CDOS 7332, 93 Daily Journal DAR 12513, 15 BNA Intl Trade Rep 2460, 23 ELR 21553.
Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that
were brought into United States in violation of 16 USCS § 1538(a), (c); hunters' claim for alleged violation of 16 USCS
§ 1537 could not be brought under 16 USCS § 1540 (g)(1)(A) because hunters' allegation that agencies failed to cooperate with foreign nations' conservation programs alleged nothing more than maladministration of ESA, and adjudicating
error on part of Secretary of Interior in administering ESA would effect wholesale abrogation of final agency action
requirement under 5 USCS § 704 of Administrative Procedure Act. Conservation Force v Salazar (2009, ND Cal) 677 F
Supp 2d 1203.
Turtle protection organizations are denied attorney's fees and injunctive relief, even though they prevailed on
threshold issue by showing that federal officials violated sea turtle protection statute by allowing import of some shrimp
snagged by trawls equipped with turtle excluder devices (TEDs) through waters of nations not formally certified to
Congress by State Department as utilizing only acceptable methods of shrimp harvesting, because, given myriad difficulties of imposing TED requirements on fishermen worldwide, court cannot conclude that government's position is not
substantially justified. Turtle Island Restoration Network v Mallett (2000) 24 CIT 627, 110 F Supp 2d 1005, affd in part
Page 140
16 USCS § 1537
and revd in part on other grounds (2002, CA FC) 284 F3d 1282, 55 Envt Rep Cas 1201, 23 BNA Intl Trade Rep 2217,
32 ELR 20571, reh den, reh, en banc, den (2002, CA FC) 299 F3d 1373, 24 BNA Intl Trade Rep 1540 and cert den
(2003) 538 US 960, 155 L Ed 2d 511, 123 S Ct 1748, 57 Envt Rep Cas 1832, 25 BNA Intl Trade Rep 1128.
8 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 § 1537a
§ 1537a. Convention implementation
(a) Management Authority and Scientific Authority. The Secretary of the Interior (hereinafter in this section referred to
as the "Secretary") is designated as the Management Authority and the Scientific Authority for purposes of the Convention and the respective functions of each such Authority shall be carried out through the United States Fish and Wildlife
Service.
(b) Management Authority functions. The Secretary shall do all things necessary and appropriate to carry out the functions of the Management Authority under the Convention.
(c) Scientific Authority functions; determinations.
(1) The Secretary shall do all things necessary and appropriate to carry out the functions of the Scientific Authority
under the Convention.
(2) The Secretary shall base the determinations and advice given by him under Article IV of the Convention with
respect to wildlife upon the best available biological information derived from professionally accepted wildlife management practices; but is not required to make, or require any State to make, estimates of population size in making
such determinations or giving such advice.
(d) Reservations by the United States under Convention. If the United States votes against including any species in
Appendix I or II of the Convention and does not enter a reservation pursuant to paragraph (3) of Article XV of the
Convention with respect to that species, the Secretary of State, before the 90th day after the last day on which such a
reservation could be entered, shall submit to the Committee on Merchant Marine and Fisheries of the House of Representatives, and to the Committee on the Environment and Public Works of the Senate, a written report setting forth the
reasons why such a reservation was not entered.
(e) Wildlife preservation in Western Hemisphere.
(1) The Secretary of the Interior (hereinafter in this subsection referred to as the "Secretary"), in cooperation with the
Secretary of State, shall act on behalf of, and represent, the United States in all regards as required by the Convention on
Nature Protection and Wildlife Preservation in the Western Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this
subsection referred to as the "Western Convention"). In the discharge of these responsibilities, the Secretary and the
Page 141
16 USCS § 1537a
Secretary of State shall consult with the Secretary of Agriculture, the Secretary of Commerce, and the heads of other
agencies with respect to matters relating to or affecting their areas of responsibility.
(2) The Secretary and the Secretary of State shall, in cooperation with the contracting parties to the Western Convention and, to the extent feasible and appropriate, with the participation of State agencies, take such steps as are necessary
to implement the Western Convention. Such steps shall include, but not be limited to-(A) cooperation with contracting parties and international organizations for the purpose of developing personnel
resources and programs that will facilitate implementation of the Western Convention;
(B) identification of those species of birds that migrate between the United States and other contracting parties,
and the habitats upon which those species depend, and the implementation of cooperative measures to ensure that such
species will not become endangered or threatened; and
(C) identification of measures that are necessary and appropriate to implement those provisions of the Western
Convention which address the protection of wild plants.
(3) No later than September 30, 1985, the Secretary and the Secretary of State shall submit a report to Congress describing those steps taken in accordance with the requirements of this subsection and identifying the principal remaining
actions yet necessary for comprehensive and effective implementation of the Western Convention.
(4) The provisions of this subsection shall not be construed as affecting the authority, jurisdiction, or responsibility of
the several States to manage, control, or regulate resident fish or wildlife under State law or regulations.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 8A, as added Dec. 28, 1979, P.L. 96-159, § 6(a), 93 Stat. 1228; Oct. 13, 1982, P.L.
97-304, § 5 [(a)], 96 Stat. 1421.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
With respect to the Committee on Merchant Marine and Fisheries of the House of Representatives, referred to in this
section, § 1(b)(3) of Act June 3, 1995, P.L. 104-14, which appears as a note preceding 2 USCS § 21, provides that any
reference to such Committee in any provision of law enacted before January 4, 1995, shall be treated as referring to (A)
the Committee on Agriculture of the House of Representatives, in the case of a provision of law relating to inspection of
seafood or seafood products, (B) the Committee on National Security of the House of Representatives, in the case of a
provision of law relating to interoceanic canals, the Merchant Marine Academy and State Maritime Academies, or national security aspects of merchant marine, (C) the Committee on Resources of the House of Representatives, in the
case of a provision of law relating to fisheries, wildlife, international fishing agreements, marine affairs (including
coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography,
(D) the Committee on Science of the House of Representatives, in the case of a provision of law relating to marine research, and (E) the Committee on Transportation and Infrastructure of the House of Representatives, in the case of a
provision of law relating to a matter other than a matter described in any of subparagraphs (A) through (D).
Explanatory notes:
The bracketed designator "(a)" is inserted in the history line of this section to conform to the probable intent of Congress, inasmuch as Act Oct. 13, 1982, P.L. 97-304, § 5, 96 Stat. 1421, which amended this section, contained a subsec.
(b), which appears as a note to this section but the provisions amending this section, preceding such subsec. (b), were
not designated as subsec. (a).
Amendments:
1982. Act Oct. 13, 1982, in subsec. (c), designated existing matter as para. (1), and added para. (2).
Page 142
16 USCS § 1537a
Such Act further (effective upon enactment as provided by § 5(b) of such Act, which appears as a note to this section) substituted subsec. (d) for one which read:
"(1) There is hereby established the International Convention Advisory Commission (hereinafter in this section
referred to as the 'Commission').
"(2) The Commission shall be composed of the following members:
"(A) One member appointed by each of the following Federal officers from his respective agency:
"(i) The Secretary.
"(ii) The Secretary of Agriculture.
"(iii) The Secretary of Commerce.
"(iv) The Director of the National Science Foundation.
"(v) The Chairman of the Council on Environmental Quality.
"(B) One member appointed by the Secretary from among officers and employees of the State agencies having
fish and wildlife conservation and management responsibilities.
"(C) The Secretary of the Smithsonian Institution is invited to appoint a member.
"(3)
(A) Individuals who are appointed as members of the Commission under paragraph (2) must be scientifically
qualified.
"(B) The term of office of a member of the Commission appointed under paragraph (2)(B) is two years and an
individual may be appointed under such paragraph for any number of terms; except that an individual may not be appointed under that paragraph for a term that would be a third consecutive term for that individual under that paragraph.
"(C) While away from his home or regular place of business in the performance of services for the Commission, a member appointed under paragraph (2)(B) or (C) shall be allowed travel expenses, including per diem in lieu of
subsistence, in the same manner as the expenses authorized by section 5703(b) of title 5, United States Code, for persons in the Government service employed intermittently.
"(D) Members of the Commission who are full-time officers or employees of the United States shall receive no
additional compensation on account of their service on the Commission.
"(4)
(A) The Commission shall elect a chairman from among its members. The term of office of the chairman is
one year.
"(B) No recommendation referred to in paragraph (5) shall be deemed to be a recommendation of the Commission unless a majority of the members of the Commission vote for that recommendation.
"(5) The Commission shall make recommendations to the Secretary or his designee on all matters pertaining to
the responsibilities of the Scientific Authority under the terms of the Convention. The Commission shall include with
any such recommendation any written dissenting view made by any member.
"(6) In the discharge of its responsibilities, the Commission shall, to the extent practicable, ascertain the views of,
and utilize the expertise of, the governmental and nongovernmental scientific communities, State agencies responsible
for the conservation of wild fauna or flora, humane groups, zoological and botanical institutions, recreational and commercial interests, the conservation community and others as appropriate.
"(7) In any case in which the Scientific Authority decides not to accept a recommendation made by the Commission under paragraph (5), the Scientific Authority shall provide to the Commission a written explanation of the reasons
for that decision and shall publish the explanation in the Federal Register.
"(8)
(A) The Chairman of the Commission, with the concurrence of the Commission, shall appoint an Executive
Secretary for the Commission. The Executive Secretary shall carry out such duties and functions as shall be prescribed
by the Commission, shall be appointed subject to the provisions of title 5, United States Code, governing appointments
in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.
"(B) The Secretary shall provide the necessary staff and administrative support for the Commission.".
Such Act further substituted subsec. (e) for one which read: "The President shall designate those agencies of the
Federal Government that shall act on behalf of, and represent, the United States in all regards as required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.".
Other provisions:
Page 143
16 USCS § 1537a
Functions of Commission. Act Dec. 28, 1979, P.L. 96-159, § 6(b), 93 Stat. 1230, provided: "Until such time as the
Chairman, Members, and Executive Secretary of the International Convention Advisory Commission are appointed, but
not later than 90 days after the date of the enactment of this Act [enacted Dec. 28, 1979], the functions of the Commission shall be carried out by the Endangered Species Scientific Authority as established by Executive Order Numbered
11911 [former 16 USCS § 1537 note], with staff and administrative support being provided by the Secretary of the Interior as set forth in that Executive order.".
Effective date of amendment made by Act Oct. 13, 1982. Act Oct. 13, 1982, P.L. 97-304, § 5(b), 96 Stat. 1422,
provided: "The amendment made by paragraph (1) of subsection (a) [adding subsec. (c)(2) of this section] shall take
effect January 1, 1981.".
NOTES:
Related Statutes & Rules:
This section is referred to in 16 USCS §§ 1542, 2912.
Research Guide:
Texts:
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.
Interpretive Notes and Decisions:
In enacting 16 USCS § 1537a(c)(2), Congress eliminated not only need for population data, but also information on
projected kill levels from each state before "no detriment" finding can be issued for that state. Defenders of Wildlife,
Inc. v Endangered Species Scientific Authority (1984, App DC) 233 US App DC 199, 725 F2d 726, 20 Envt Rep Cas
1833, 14 ELR 20188.
9 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 § 1538
§ 1538. Prohibited acts
(a) Generally.
Page 144
16 USCS § 1538
(1) Except as provided in sections 6(g)(2) and 10 of this Act [16 USCS §§ 1535(g)(2), 1539], with respect to any
endangered species of fish or wildlife listed pursuant to section 4 of this Act [16 USCS § 1533] it is unlawful for any
person subject to the jurisdiction of the United States to-(A) import any such species into, or export any such species from the United States;
(B) take any such species within the United States or the territorial sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation
of subparagraphs (B) and (C);
(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in
the course of a commercial activity, any such species;
(F) sell or offer for sale in interstate or foreign commerce any such species; or
(G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant
to section 4 of this Act [16 USCS § 1533] and promulgated by the Secretary pursuant to authority provided by this Act.
(2) Except as provided in sections 6(g)(2) and 10 of this Act [16 USCS §§ 1535(g)(2), 1539], with respect to any
endangered species of plants listed pursuant to section 4 of this Act [16 USCS § 1533], it is unlawful for any person
subject to the jurisdiction of the United States to-(A) import any such species into, or export any such species from, the United States;
(B) remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage
or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal
trespass law;
(C) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in
the course of a commercial activity, any such species;
(D) sell or offer for sale in interstate or foreign commerce any such species; or
(E) violate any regulation pertaining to such species or to any threatened species of plants listed pursuant to section 4 of this Act [16 USCS § 1533] and promulgated by the Secretary pursuant to authority provided by this Act.
(b) Species held in captivity or controlled environment.
(1) The provisions of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to any fish or wildlife which
was held in captivity or in a controlled environment on (A) December 28, 1973, or (B) the date of the publication in the
Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to subsection (c)
of section 4 of this Act [16 USCS § 1533(c)]: Provided, That such holding and any subsequent holding or use of the fish
or wildlife was not in the course of a commercial activity. With respect to any act prohibited by subsections (a)(1)(A)
and (a)(1)(G) of this section which occurs after a period of 180 days from (i) December 28, 1973, or (ii) the date of publication in the Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to
subsection (c) of section 4 of this Act [16 USCS § 1533(c)], there shall be a rebuttable presumption that the fish or wildlife involved in such act is not entitled to the exemption contained in this subsection.
(2) (A) The provisions of subsection (a)(1) shall not apply to-(i) any raptor legally held in captivity or in a controlled environment on the effective date of the Endangered
Species Act Amendments of 1978; or
(ii) any progeny of any raptor described in clause (i);
until such time as any such raptor or progeny is intentionally returned to a wild state.
(B) Any person holding any raptor or progeny described in subparagraph (A) must be able to demonstrate that the
raptor or progeny does, in fact, qualify under the provisions of this paragraph, and shall maintain and submit to the Secretary, on request, such inventories, documentation, and records as the Secretary may by regulation require as being
reasonably appropriate to carry out the purposes of this paragraph. Such requirements shall not unnecessarily duplicate
the requirements of other rules and regulations promulgated by the Secretary.
(c) Violation of Convention.
(1) It is unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the provisions of the Convention, or to possess any specimens traded contrary to the provisions of the
Convention, including the definitions of terms in article I thereof.
(2) Any importation into the United States of fish or wildlife shall, if-(A) such fish or wildlife is not an endangered species listed pursuant to section 4 of this Act [16 USCS § 1533] but
is listed in Appendix II to the Convention,
Page 145
16 USCS § 1538
(B) the taking and exportation of such fish or wildlife is not contrary to the provisions of the Convention and all
other applicable requirements of the Convention have been satisfied,
(C) the applicable requirements of subsections (d), (e), and (f) of this section have been satisfied, and
(D) such importation is not made in the course of a commercial activity,
be presumed to be an importation not in violation of any provision of this Act or any regulation issued pursuant to
this Act.
(d) Imports and exports.
(1) In general. It is unlawful for any person, without first having obtained permission from the Secretary, to engage
in business-(A) as an importer or exporter of fish or wildlife (other than shellfish and fishery products which (i) are not listed
pursuant to section 4 of this Act [16 USCS § 1533] as endangered species or threatened species, and (ii) are imported for
purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high
seas for recreational purposes) or plants; or
(B) as an importer or exporter of any amount of raw or worked African elephant ivory.
(2) Requirements. Any person required to obtain permission under paragraph (1) of this subsection shall-(A) keep such records as will fully and correctly disclose each importation or exportation of fish, wildlife, plants,
or African elephant ivory made by him and the subsequent disposition made by him with respect to such fish, wildlife,
plants, or ivory;
(B) at all reasonable times upon notice by a duly authorized representative of the Secretary, afford such representative access to his place of business, an opportunity to examine his inventory of imported fish, wildlife, plants, or
African elephant ivory and the records required to be kept under subparagraph (A) of this paragraph, and to copy such
records; and
(C) file such reports as the Secretary may require.
(3) Regulations. The Secretary shall prescribe such regulations as are necessary and appropriate to carry out the purposes of this subsection.
(4) Restriction on consideration of value or amount of African elephant ivory imported or exported. In granting permission under this subsection for importation or exportation of African elephant ivory, the Secretary shall not vary the
requirements for obtaining such permission on the basis of the value or amount of ivory imported or exported under
such permission.
(e) Reports. It is unlawful for any person importing or exporting fish or wildlife (other than shellfish and fishery products which (1) are not listed pursuant to section 4 of this Act [16 USCS § 1533] as endangered or threatened species, and
(2) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United
States or on the high seas for recreational purposes) or plants to fail to file any declaration or report as the Secretary
deems necessary to facilitate enforcement of this Act or to meet the obligations of the Convention.
(f) Designation of ports.
(1) It is unlawful for any person subject to the jurisdiction of the United States to import into or export from the
United States any fish or wildlife (other than shellfish and fishery products which (A) are not listed pursuant to section 4
of this Act [16 USCS § 1533] as endangered species or threatened species, and (B) are imported for purposes of human
or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational
purposes) or plants, except at a port or ports designated by the Secretary of the Interior. For the purpose of facilitating
enforcement of this Act and reducing the costs thereof, the Secretary of the Interior, with approval of the Secretary of
the Treasury and after notice and opportunity for public hearing, may, by regulation, designate ports and change such
designations. The Secretary of the Interior, under such terms and conditions as he may prescribe, may permit the importation or exportation at nondesignated ports in the interest of the health or safety of the fish or wildlife or plants, or
for other reasons if, in his discretion, he deems it appropriate and consistent with the purpose of this subsection.
(2) Any port designated by the Secretary of the Interior under the authority of section 4(d) of the Act of December 5,
1969 (16 U.S.C. 666cc-4(d)), shall, if such designation is in effect on the day before the date of the enactment of this
Act [enacted Dec. 28, 1973], be deemed to be a port designated by the Secretary under paragraph (1) of this subsection
until such time as the Secretary otherwise provides.
(g) Violations. It is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit
another to commit, or cause to be committed, any offense defined in this section.
Page 146
16 USCS § 1538
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 9, 87 Stat. 893; Nov. 10, 1978, P.L. 95-632, § 4, 92 Stat. 3760; Oct. 13, 1982, P.L.
97-304, § 9(b), 96 Stat. 1426; Oct. 7, 1988, P.L. 100-478, Title I, § 1006, Title II, Part III, § 2301, 102 Stat. 2308, 2321;
Nov. 14, 1988, P.L. 100-653, Title IX, § 905, 102 Stat. 3835.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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.
"The effective date of the Endangered Species Act Amendments of 1978", referred to in this section, is probably the
date of enactment of P.L. 95-632, 92 Stat. 3751, which is Nov. 10, 1978.
"Section 4(d) of the Act of December 5, 1969 (16 U.S.C. 666cc-4(d)", referred to in this section, is § 4(d) of Act Dec.
5, 1969, P.L. 91-135, 83 Stat. 276, which formerly appeared as 16 USCS § 668cc-4(d), and which was repealed by Act
Dec. 28, 1973, P.L. 93-205, § 14, 87 Stat. 903.
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:
1978. Act Nov. 10, 1978, in subsec. (b), designated existing provisions as para. (1), and added para. (2).
1982. Act Oct. 13, 1982, in subsec. (a)(2), redesignated subparas. (B), (C), and (D) as subparas. (C), (D), and (E), respectively, and added a new subpara. (B); and, in subsec. (b), substituted para. (1) for one which read: "The provisions
of this section shall not apply to any fish or wildlife held in captivity or in a controlled environment on the effective date
of this Act if the purposes of such holding are not contrary to the purposes of this Act; except that this subsection shall
not apply in the case of any fish or wildlife held in the course of a commercial activity. With respect to any act prohibited by this section which occurs after a period of 180 days from the effective date of this Act, there shall be a rebuttable
presumption that the fish or wildlife involved in such act was not held in captivity or in a controlled environment on
such effective date.", and, in para. (2)(A), substituted "The provisions of subsection (a)(1) shall not apply to" for "This
section shall not apply to".
1988. Act Oct. 7, 1988 substituted subsec. (a)(2)(B) for one which read: "remove and reduce to possession any such
species from areas under Federal jurisdiction;".
Such Act further substituted subsec. (d) for one which read:
"(d) Imports and exports.
(1) It is unlawful for any person to engage in business as an importer or exporter of fish or wildlife (other than
shellfish and fishery products which (A) are not listed pursuant to section 4 of this Act as endangered species or threatened species, and (B) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes) or plants without first having obtained permission
from the Secretary.
"(2) Any person required to obtain permission under paragraph (1) of this subsection shall--
Page 147
16 USCS § 1538
"(A) keep such records as will fully and correctly disclose each importation or exportation of fish, wildlife, or
plants made by him and the subsequent disposition made by him with respect to such fish, wildlife, or plants;
"(B) at all reasonable times upon notice by a duly authorized representative of the Secretary, afford such representative access to his places of business, an opportunity to examine his inventory of imported fish, wildlife, or plants
and the records required to be kept under subparagraph (A) of this paragraph, and to copy such records; and
"(C) file such reports as the Secretary may require.
"(3) The Secretary shall prescribe such regulations as are necessary and appropriate to carry out the purposes of
this subsection.".
Act Nov. 14, 1988, in subsec. (d)(1)(A), substituted "recreational purposes) or plants; or" for "recreational purposes);
or".
Other provisions:
Territorial sea of United States. For extension of territorial sea of the United States, see Proc. No. 5928, which
appears as 32 USCS § 1331 note.
Human activities within proximity of whales. Act April 30, 1994, P.L. 103-238, § 17, 108 Stat. 559, provides:
"(a) Lawful approaches. In waters of the United States surrounding the State of Hawaii, it is lawful for a person subject to the jurisdiction of the United States to approach, by any means other than an aircraft, no closer than 100 yards to
a humpback whale, regardless of whether the approach is made in waters designated under section 222.31 of title 50,
Code of Federal Regulations, as cow/calf waters.
"(b) Termination of legal effect of certain regulations. Subsection (b) of section 222.31 of title 50, Code of Federal
Regulations, shall cease to be in force and effect.".
NOTES:
Code of Federal Regulations:
Animal and Plant Health Inspection Service, Department of Agriculture--Endangered species regulations concerning
terrestrial plants, 7 CFR 355.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--General permit procedures, 50 CFR 13.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Importation, exportation, and transportation of
wildlife, 50 CFR 14.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Endangered and threatened wildlife and plants,
50 CFR 17.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Importation and exportation of plants, 50 CFR
24.1 et seq.
Related Statutes & Rules:
This section is referred to in 16 USCS §§ 1533, 1535, 1536, 1539, 1540.
Research Guide:
Federal Procedure:
9A Fed Proc L Ed, Criminal Procedure § 22:1492.
12 Fed Proc L Ed, Evidence § 33:87.
Am Jur:
35A Am Jur 2d, Fish, Game, and Wildlife Conservation § 68.
Page 148
16 USCS § 1538
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:
Criminal prosecution under Endangered Species Act of 1973 (16 USCS §§ 1531-1543). 128 ALR Fed 271.
Texts:
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.
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection §§ 24.03, 24.05.
5 Environmental Law Practice Guide (Matthew Bender), ch 34A, Agricultural Environmental Law § 34A.05.
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:
Boudreaux. Understanding "Take" in the Endangered Species Act. 34 Ariz St LJ 733, Fall 2002.
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.
Estes. The effect of the Federal Endangered Species Act on state water rights. 22 Envtl L 1027, 1992.
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.
Benson. So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and
the Endangered Species Act. 44 Nat Resources J 29, Winter 2004.
Arnold. Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use
development. 10 Stan Envtl L J 1, 1991.
Cheever. An introduction to the prohibition against takings in section 9 of the Endangered Species Act of 1973:
learning to live with a powerful species preservation law. 62 U Colo L Rev 109, 1991.
Moore. Back to the Drawing Board: a Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act. 24 UCLA J Envtl L & Pol'y 105, 2006.
Doremus. New Directions in Environmental Law: the Endangered Species Act: Static Law Meets Dynamic World.
32 Wash U JL & Pol'y 175, 2010.
Davison. The Aftermath of Sweet Home Chapter: Modification of Wildlife Habitat as a Prohibited Taking in Violation of the Endangered Species Act. 27 Wm & Mary Envtl L & Pol'y Rev 541, Spring 2003.
Page 149
16 USCS § 1538
Interpretive Notes and Decisions:
1. Generally 2. Constitutionality 3. Relationship to other provisions 4. Validity of regulations 5. What constitutes "taking" 6.--Incidental taking 7.--Harm 8.--Particular conduct 9.----Hunting 10.----Land development 11.----Logging
12.----Pesticide or rodenticide use 13.----Water diversion 14. Exception for species held in captivity 15. Practice and
procedure 16.--Evidence 17.--Forfeiture proceedings 18. Miscellaneous
1. Generally
16 USCS § 1538(a)(1) forbids taking of endangered animal under any circumstances. Sierra Club v Clark (1985,
CA8 Minn) 755 F2d 608, 15 ELR 20391 (criticized in Humane Soc'y of the United States v Kempthorne (2006, DC Dist
Col) 481 F Supp 2d 53).
Term "convention" referred to in 16 USCS § 1538 refers to Convention as of date offense is committed, not Convention as of March 3, 1973. United States v Ivey (1991, CA5 Tex) 949 F2d 759, 14 BNA Intl Trade Rep 1203, cert den
(1992) 506 US 819, 121 L Ed 2d 32, 113 S Ct 64, magistrate's recommendation (1994, WD Tex) 1994 US Dist LEXIS
20373, approved, adopted, motion to vacate den, dismd (1994, WD Tex) 1994 US Dist LEXIS 19993.
Party may proceed without Incidental Take Permit but risks civil and criminal penalties if "take" occurs. Defenders
of Wildlife v Bernal (1999, CA9 Ariz) 204 F3d 920, supplemented (2000, CA9 Ariz) 2000 CDOS 1477, 2000 Daily
Journal DAR 2103, 50 Envt Rep Cas 1146, 46 FR Serv 3d 120, 30 ELR 20403.
16 USCS § 1538(a)(1)(B) prohibits hunting of endangered species. Defenders of Wildlife v Andrus (1977, DC Dist
Col) 428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.
Doctrine of primary jurisdiction does not require dismissal of environmental organizations' 16 USCS § 1538 claim
against lumber company on behalf of coho salmon, even though approval of "habitat conservation plan" and "incidental
take permit" are pending before federal and state agencies, because issues in those proceedings are slightly different and
should not interfere with citizen-suit provision designed to protect endangered or threatened species. Coho Salmon v
Pacific Lumber Co. (1998, ND Cal) 30 F Supp 2d 1231, 47 Envt Rep Cas 2008, 29 ELR 20508.
Challenge to regulation, promulgated under 16 USCS § 1538(a), restricting extent to which citizens can "take" red
wolf that has strayed off government land, must fail, where there is clear nexus between protection of endangered red
wolves from taking and interstate commerce, because regulation at issue is legitimate exercise of federal power under
Commerce Clause. Gibbs v Babbitt (1998, ED NC) 31 F Supp 2d 531, affd (2000, CA4 NC) 214 F3d 483, 50 Envt Rep
Cas 1863, 30 ELR 20602, cert den (2001) 531 US 1145, 148 L Ed 2d 957, 121 S Ct 1081, 52 Envt Rep Cas 1352.
Whatever "areas under Federal jurisdiction" means under 16 USCS § 1538(a)(2), part of Endangered Species Act
(ESA), it is not so broad as to encompass wetlands that are adjacent to navigable waters and therefore subject to requirements of Clean Water Act, 33 USCS §§ 1251 et seq.; there is nothing in language or structure of ESA that suggests
Congress had such regulatory jurisdiction in mind when it used words "areas under Federal jurisdiction." To contrary,
examination of ESA as whole reveals that Congress did not intend removal and reduce to possession portion of 16
USCS § 1538(a)(2)(B) to apply to private property that is merely regulated by federal government. N. Cal. River Watch
v Wilcox (2008, ND Cal) 547 F Supp 2d 1071, 67 Envt Rep Cas 1600, affd (2010, CA9 Cal) 620 F3d 1075, 71 Envt Rep
Cas 1710, 40 ELR 20233, reprinted as amd on other grounds (2011, CA9 Cal) 2011 US App LEXIS 1752 and amd on
other grounds, clarified (2011, CA9 Cal) 2011 US App LEXIS 1753.
Canada lynx's status as threatened as opposed to endangered species does not take it outside prohibitions against
taking in 16 USCS § 1538(a)(1)(B). 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. Constitutionality
Section 9 of Endangered Species Act of 1973 (16 USCS § 1538) permissibly regulates transportation or sale of
protected wildlife and does not constitute taking of property in violation of Fifth Amendment. United States v Kepler
(1976, CA6 Ky) 531 F2d 796, 6 ELR 20340.
Because links between species loss and substantial commercial effect were not attenuated under Endangered Species Act (ESA), economic regulatory scheme, taking of Texas cave species were aggregated with other takes, and ESA's
Page 150
16 USCS § 1538
take provision was constitutional under Commerce Clause. GDF Realty Invs., Ltd. v Norton (2003, CA5 Tex) 326 F3d
622, 56 Envt Rep Cas 1033, reh den, reh, en banc, den (2004, CA5 Tex) 362 F3d 286, 58 Envt Rep Cas 1187 and cert
den (2005) 545 US 1114, 125 S Ct 2898, 162 L Ed 2d 294, 60 Envt Rep Cas 1512.
16 USCS § 1538 is within Congress' Commerce Clause power, and Fish and Wildlife Service application of statute
to endangered fly is therefore constitutional. National Ass'n of Home Builders v Babbitt (1997, App DC) 327 US App
DC 248, 130 F3d 1041, 45 Envt Rep Cas 1833, 28 ELR 20403, cert den (1998) 524 US 937, 141 L Ed 2d 712, 118 S Ct
2340, 47 Envt Rep Cas 1736.
Application of 16 USCS § 1538(a)(1)(B) to prevent destruction of endangered fly's habitat and eventual extinction
was valid exercise of congressional power under Commerce Clause, where land developers and local governments filed
action challenging constitutionality of provision when construction of hospital was blocked, because provision had substantial relation to interstate commerce. National Ass'n of Home Builders of the United States v Babbit (1996, DC Dist
Col) 949 F Supp 1, 27 ELR 20707, affd (1997, App DC) 327 US App DC 248, 130 F3d 1041, 45 Envt Rep Cas 1833, 28
ELR 20403, cert den (1998) 524 US 937, 141 L Ed 2d 712, 118 S Ct 2340, 47 Envt Rep Cas 1736.
3. Relationship to other provisions
Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565
F Supp 2d 1160, 68 Envt Rep Cas 1146).
Complaint by federally licensed wild bird importers is dismissed in action arising out of state law prohibiting sale
of wild birds not born in captivity, where importers contended federal wildlife importer licenses issued under 16 USCS
§ 1538 preempted state law under 16 USCS § 1535, because importers licenses were issued under 16 USCS § 1538
which does not give preemptive effect of § 1539; licenses only gave permission to engage in import business and were
issued solely to track trade in protective species and therefore do not constitute permits or exceptions preempting restrictive state law. Cresenzi Bird Importers, Inc. v New York (1987, SD NY) 658 F Supp 1441, 17 ELR 20996, affd
(1987, CA2 NY) 831 F2d 410, 18 ELR 20036.
Federal agencies were not entitled to Fed. R. Civ. P. 12(b)(1) dismissal of claim by environmental groups that federal agency was liable for violation of Endangered Species Act's "take" provision under 16 USCS § 1538 based on its
failure to comply with terms of Incidental Take Statement (ITS) that was issued pursuant to 16 USCS § 1536(b)(4);
notwithstanding 16 USCS § 1540(g)'s implied exclusion of suits alleging permit violations, groups' allegation of violation of § 1538(a) was not precluded by fact that it also turned on alleged violation of ITS, which was in some sense
permit. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2009, ED Cal) 629 F Supp 2d 1123, 70 Envt
Rep Cas 1054.
4. Validity of regulations
Fish and Wildlife provision limiting taking of red wolves on private land was valid exercise of Congressional power. Gibbs v Babbitt (2000, CA4 NC) 214 F3d 483, 50 Envt Rep Cas 1863, 30 ELR 20602, cert den (2001) 531 US 1145,
148 L Ed 2d 957, 121 S Ct 1081, 52 Envt Rep Cas 1352.
Regulation implementing 16 USCS § 1538 and defining "harm" to include modification of habitat is not ultra vires
of ESA, and is not void for vagueness. Sweet Home Chapter of Communities for a Great Or. v Babbitt (1993, App DC)
303 US App DC 42, 1 F3d 1, 37 Envt Rep Cas 1138, 23 ELR 21151, different results reached on reh (1994, App DC)
305 US App DC 110, 17 F3d 1463, 38 Envt Rep Cas 1202, 24 ELR 20680, reh, en banc, den (1994, App DC) 308 US
App DC 128, 30 F3d 190, 39 Envt Rep Cas 1278 and revd on other grounds (1995) 515 US 687, 132 L Ed 2d 597, 115 S
Ct 2407, 95 CDOS 4966, 95 Daily Journal DAR 8566, 40 Envt Rep Cas 1897, 25 ELR 21194, 9 FLW Fed S 291, subsequent app (1995, App DC) 1995 US App LEXIS 31484 and (criticized on other grounds in Loggerhead Turtle v
County Council of Volusia County (1998, CA11 Fla) 148 F3d 1231, 47 Envt Rep Cas 1014, 41 FR Serv 3d 563, 28 ELR
21546, 11 FLW Fed C 1659).
As Secretary of Commerce's designee under Marine Protection, Research and Sanctuaries Act (16 USCS §§ 1431 et
seq.), National Oceanic and Atmospheric Administration's (NOAA's) regulation, promulgated under Endangered Species Act (16 USCS §§ 1531 et seq.), limiting operation of "motorized personal watercraft", but not other vessels, in
Monterey Sanctuary was not arbitrary and capricious, where record amply supported NOAA's findings that personal
craft were operated in high concentrations of kelp forests, marine mammals, and sea birds, and other vessels tended not
Page 151
16 USCS § 1538
to be used in same areas in same manner. Personal Watercraft Indus. Ass'n v Department of Commerce (1995, App DC)
310 US App DC 364, 48 F3d 540, 40 Envt Rep Cas 1411, 25 ELR 20681.
Regulations, promulgated by Secretaries of Interior and Commerce, which are properly sensitive to environmental
interest in preservation of threatened and endangered wild sea turtles, are authorized under Endangered Species Act of
1973. Cayman Turtle Farm, Ltd. v Andrus (1979, DC Dist Col) 478 F Supp 125, 9 ELR 20416.
EPA's "about face" from proposed near-absolute ban on strychnine to regulation permitting continued use was not
in accordance with law and will be enjoined, because (1) EPA has never obtained "incidental take" authorizations in
accordance with 16 USCS § 1536(b)(4), (2) policy allows continued strychnine-caused deaths to birds protected under
16 USCS §§ 668 and 703, and (3) continued registration of strychnine results in takings of endangered and threatened
species in violation of 16 USCS § 1538(a)(1)(B). 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.
Ranchers' challenge to Fish and Wildlife Service's biological opinion is successful, even though Service says cattle
grazing on certain public lands may cause degradation to potential habitats for certain endangered species, where Service presents no proof that species exist in allotments in question, because ranchers demonstrated harm to their livelihood that will result from arbitrary and capricious opinion. Arizona Cattle Growers' Assoc. v United States Fish &
Wildlife Serv. (1998, DC Ariz) 63 F Supp 2d 1034, 49 Envt Rep Cas 1371, affd (2001, CA9 Ariz) 273 F3d 1229, 2001
CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146).
National Marine Fisheries Service's conclusion that it was advisable to prohibit take of wild steelhead salmon in
order to promote recovery of natural populations, but not extend such protection to all hatchery fish was affirmed where
science indicated that hatchery fish could reduce viability of wild populations by diminishing fitness of wild fish. Cal.
State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024,
71 Envt Rep Cas 1583, 40 ELR 20226.
5. What constitutes "taking"
Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565
F Supp 2d 1160, 68 Envt Rep Cas 1146).
Timber industry group's challenge to Interior regulations implementing Endangered Species Act (ESA) (16 USCS
§§ 1531 et seq.) must fail, where challenged regulations define "harm" in 16 USCS § 1532(19) definition of "take" to
include habitat modification, which in turn has led to restrictions on timber harvesting threatening livelihood of timber
workers, because prohibition against "takings" in 16 USCS § 1538(a)(1) was intended to be very broad and agency interpretation to include even habitat modification which could actually kill or injure wildlife is consistent with language,
structure and history of ESA. Sweet Home Chapter of Communities for a Great Or. v Lujan (1992, DC Dist Col) 806 F
Supp 279, 35 Envt Rep Cas 1264, dismd without op, in part (1992, App DC) 298 US App DC 99, 976 F2d 47 and affd
(1993, App DC) 303 US App DC 42, 1 F3d 1, 37 Envt Rep Cas 1138, 23 ELR 21151, different results reached on reh
(1994, App DC) 305 US App DC 110, 17 F3d 1463, 38 Envt Rep Cas 1202, 24 ELR 20680, reh, en banc, den (1994,
App DC) 308 US App DC 128, 30 F3d 190, 39 Envt Rep Cas 1278 and revd (1995) 515 US 687, 132 L Ed 2d 597, 115
S Ct 2407, 95 CDOS 4966, 95 Daily Journal DAR 8566, 40 Envt Rep Cas 1897, 25 ELR 21194, 9 FLW Fed S 291, subsequent app (1995, App DC) 1995 US App LEXIS 31484 and (criticized in Loggerhead Turtle v County Council of
Volusia County (1998, CA11 Fla) 148 F3d 1231, 47 Envt Rep Cas 1014, 41 FR Serv 3d 563, 28 ELR 21546, 11 FLW
Fed C 1659).
Where Asian elephants were listed as endangered under 16 USCS § 1533, circus owner's Asian elephants were not
exempt from taking prohibition of 16 USCS § 1538, as defined by 16 USCS § 1532(19), because exemption was unambiguously applicable to other provisions; thus, disputed facts existed, precluding summary judgment, as to whether
owner's treatment of elephants not subject to captive-bred wildlife permit constituted taking under Endangered Species
Act. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas
1243.
Under 16 USCS § 1536(b)(3)(A), illegal take of species occurred when take of that species was result of action by
person or agency, and in contrast, takes that resulted from acts of nature did not fall within prohibition of § 9 of Endan-
Page 152
16 USCS § 1538
gered Species Act and under 16 USCS §§ 1532(19), 1538(a)(1), could not be blamed on Federal agency, and because
rainfall and other precipitation caused natural filling of lakes in question and as lakes filled, surrounding areas flood
which could cause take of listed species and their habitats, that was not illegal take not result of artificial breaching of
sand bar between lakes and Pacific Ocean as permitted in defendant Army Corps of Engineers' permit and plaintiff water district's argument to contrary failed. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs
(2008, DC Dist Col) 538 F Supp 2d 242.
United States Forest Service (USFS) was entitled to summary judgment on claim by grazing allotment permittees
who alleged that USFS violated Endangered Species Act, 16 USCS §§ 1531 et seq., by arbitrarily limiting grazing in
Malheur National Forest; USFS did not act arbitrarily and capriciously under 5 USCS § 706(2)(A) in choosing bank
alteration standard as habitat proxy for "take" of protected steelhead trout for purposes of 16 USCS §§ 1536(b)(4) and
1538. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.
Environmental group was entitled to summary judgment on its claim that forest projects caused unauthorized "take"
of grizzly bears in violation of 16 USCS § 1538(a); take was occurring in areas outside bear recovery zone that was
subject to incidental take statement under 15 USCS § 1536(b) and, therefore, take could not be exempted under §
1536(o)(2). Alliance for Wild Rockies v Bradford (2010, DC Mont) 720 F Supp 2d 1193.
In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies
were not entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of
Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); genuine disputes remained as to whether Corps violated
terms and conditions imposed by ITS. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal)
723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.
6.--Incidental taking
It was not intention of 16 USCS § 1538 to ban all salmon fishing or to place upon defendant Department of Commerce, National Marine Fisheries Service, or Pacific Fishery Council impossible enforcement burden; thus, impossibility of distinguishing visually between listed and unlisted species is sufficient defense to claim that defendants are permitting "take" of 3 listed species because they permit harvesting of salmon; it cannot be believed that Congress intended
to ban all salmon fishing whenever one salmon stock, indistinguishable by sight, became endangered; under such circumstances, endangered species constitute "incidental" take. Pacific Northwest Generating Coop. v Brown (1994, CA9
Or) 38 F3d 1058, 94 CDOS 7394, 94 Daily Journal DAR 13563.
Incidental take permit exception, 16 USCS § 1539, does not apply to, and thus does not exempt from liability, activity performed as purely mitigatory measure upon which Fish and Wildlife Service conditions permit. Loggerhead
Turtle v County Council of Volusia County (1998, CA11 Fla) 148 F3d 1231, 47 Envt Rep Cas 1014, 41 FR Serv 3d 563,
28 ELR 21546, 11 FLW Fed C 1659, cert den (1999) 526 US 1081, 119 S Ct 1488, 143 L Ed 2d 570, 48 Envt Rep Cas
1352, injunction den, partial summary judgment gr, request den (2000, MD Fla) 92 F Supp 2d 1296, summary judgment
gr, partial summary judgment gr, in part, partial summary judgment den, motion to strike den, motion gr, reconsideration den, judgment entered (2000, MD Fla) 120 F Supp 2d 1005, magistrate's recommendation, costs/fees proceeding
(2001, MD Fla) 2001 US Dist LEXIS 2611, subsequent app on other grounds (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 on other grounds, 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).
Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565
F Supp 2d 1160, 68 Envt Rep Cas 1146).
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.
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.
Page 153
16 USCS § 1538
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.
State agency's conduct does not have to show to be proximate cause of incidental taking of threatened or endangered animals in order for agency to be held liable for violating § 9 of Endangered Species Act (ESA), 16 USCS §
1538(a)(1)(B); while agency cannot be held liable if private parties are left free to act in ways that do not pose threat to
endangered and threatened species and third parties' actions constitute independent intervening cause of takings, agency
can be held liable if its regulatory activities are stimulus for conduct that results in taking of threatened or endangered
species by third parties, i.e. if risk of taking exists even if third parties comply with all of agency's existing applicable
laws and regulations. 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).
Animal protection organizations met burden of supporting their claim for declaratory relief against state Department of Natural Resources (DNR), arising from 13 incidental takings of Canada Lynx in state since 2003 where (1) organizations sought to hold DNR liable for violating § 9 of Endangered Species Act (ESA), 16 USCS § 1538(a)(1)(B),
by failing to take steps to protect Canada Lynx from Minnesota trappers; (2) organizations showed that DNR had not
issued regulations that were focused on preventing trappers from incidentally taking lynx, it had not implemented US
Fish and Wildlife Service's recommendations with regard to avoiding such incidental takings, and trappers were not
required to read or comply with voluntary recommendations that DNR had issued on that topic; (3) organizations had
shown that 13 incidental takings of Canada Lynx had occurred under DNR's existing regulatory scheme, and risk remained that additional incidental takings would occur in future under that scheme; and (4) mere fact that DNR had begun process, after suit was filed, for issuing Incidental Take Permit under 16 USCS § 1539(a)(1)(B), did not mean that
organizations were not entitled to declaratory relief to prevent any more incidental takings of lynx until that Permit 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).
In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies
were entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); groups offered no authority to support their proposition that
ITS might be void ab initio. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F
Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.
7.--Harm
Habitat destruction that could drive endangered species to extinction constitutes "harm" and therefore "taking" under Endangered Species Act (16 USCS §§ 1531 et seq.), since Secretary's construction of statute, which is entitled to
deference if it is reasonable and not in conflict with Congressional intent, defines "harm" as including not only physical
injury, but also injury caused by impairment of essential behavior patterns via habitat modifications that can have significant and permanent effects on listed species, and such construction is consistent with Congressional intent, including
intent that term "take" be defined in broadest possible manner; accordingly, district court's interpretation of "harm" as
including habitat destruction that could result in extinction, and findings to that effect, are sufficient to sustain order for
removal of sheep that destroyed woodland habitat upon which endangered species of bird depends. Palila v Hawaii
Dep't of Land & Natural Resources (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.
Under 50 CFR § 17.3, "harm," as used in Endangered Species Act of 1973, 16 USCS §§ 1532(19) and 1538, includes significant environmental modification or degradation, which actually injures or kills wildlife; thus, where act
Page 154
16 USCS § 1538
actually injures or kills wildlife by significantly impairing essential breeding patterns, including breeding, feeding, or
sheltering, it constitutes violation of 16 USCS § 1538(a)(1)(B). Palila v Hawaii Dep't of Land & Natural Resources
(1985, DC Hawaii) 631 F Supp 787, 16 ELR 20669, findings of fact/conclusions of law (1986, DC Hawaii) 649 F Supp
1070, 17 ELR 20514, affd (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.
In their claim against developer, plaintiffs failed to prove by preponderance that proposed construction would harm
endangered or threatened animal by killing or injuring it and, instead, relied on administrative record to establish their
claim against developer under § 9 of Endangered Species Act (ESA), 16 USCS § 1538; however, Fish and Wildlife Service provided no evidence that habitat modification had actually resulted in death or injury of kit fox and administrative
record did not demonstrate "reasonably certain threat of imminent harm" to kit fox because fox had been seen only in
vicinity of project and not at project site, and inquiry regarding red-legged frogs yielded similar results; therefore, Army
Corps of Engineers' actions in regards to developer's project were not arbitrary and capricious and there was no evidence developer had violated ESA § 9. Protect Our Water v Flowers (2004, ED Cal) 377 F Supp 2d 844.
Because animal rights activists produced no evidence of harm to Canada lynx, threatened species, caused by trappers acting in compliance with existing state law, they did not show that state's licensure scheme as recently modified
violated Endangered Species Act, 16 USCS §§ 1531 et seq; without more, court could not find that activists satisfied
their burden to attain temporary restraining order to enjoin use of Conibear traps for rest of trapping season, or to require state to require 24-hour trap check for all Conibear traps. Animal Welfare Institute v Martin (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.
8.--Particular conduct
State is prohibited from enclosing animals in habitat of endangered species where those animals have tendency to
destroy natural habitat of endangered species; such enclosure constitutes taking within meaning of 16 USCS §
1538(a)(1)(B). Palila v Hawaii Dep't of Land & Natural Resources (1981, CA9 Hawaii) 639 F2d 495, 15 Envt Rep
Cas 1741, 11 ELR 20446.
Eliminating habitat of species can constitute "taking" that species for purposes of 16 USCS § 1538. Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal DAR 7051, 53
Envt Rep Cas 2129, 31 ELR 20778.
"Taking" requires showing that harm, attempted harm, or harassment is of immediate nature and therefore leasing
of continental shelf to oil companies which poses potential harm does not amount to taking. California by Brown v
Watt (1981, CD Cal) 520 F Supp 1359, 16 Envt Rep Cas 1729, 11 ELR 20870, 70 OGR 455, affd in part and revd in
part on other grounds, vacated, in part on other grounds (1982, CA9 Cal) 683 F2d 1253, 17 Envt Rep Cas 1857, 12 ELR
21084, 73 OGR 447, revd, in part on other grounds (1984) 464 US 312, 104 S Ct 656, 78 L Ed 2d 496, 20 Envt Rep Cas
1201, 14 ELR 20129, 79 OGR 448 (superseded by statute on other grounds as stated in California v Norton (2002, CA9
Cal) 311 F3d 1162, 2002 Daily Journal DAR 13543, 55 Envt Rep Cas 1449, 33 ELR 20119, 157 OGR 181) and (superseded by statute on other grounds as stated in Amber Res. Co. v United States (2005) 68 Fed Cl 535, 61 Envt Rep Cas
1887, 166 OGR 435).
Hawaii is required, under 16 USCS § 1538, to remove mouflon sheep from critical habitat on slopes of Mauna Kea
of endangered bird species, Palila, because Palila are being "harmed" within meaning of Endangered Species Act (§
1532(a)(1)) where mouflon sheep are destroying their habitat by decreasing food and nesting sites; Congress intended to
prohibit habitat destruction that harms endangered species, Secretary of Interior has defined "harm" to include habitat
modification or degradation without need for decline in population numbers and Endangered Species Act does not allow
balancing approach for multiple use considerations. Palila v Hawaii Dep't of Land & Natural Resources (1986, DC
Hawaii) 649 F Supp 1070, 17 ELR 20514, affd (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.
County's adoption of allegedly ineffective beachfront lighting ordinance was not cause of harm to endangered sea
turtle hatchlings, and, thus, did not violate 16 USCS § 1538(a)(1)(B), since county could not be held liable for beach
residents' failure to comply with its voluntarily adopted ordinance. Loggerhead Turtle v County Council (2000, MD Fla)
92 F Supp 2d 1296, summary judgment gr, partial summary judgment gr, in part, partial summary judgment den, motion to strike den, motion gr, reconsideration den, judgment entered (2000, MD Fla) 120 F Supp 2d 1005, magistrate's
recommendation, costs/fees proceeding (2001, MD Fla) 2001 US Dist LEXIS 2611, subsequent app on other grounds
(2002, CA11 Fla) 307 F3d 1318, 55 Envt Rep Cas 1161, 33 ELR 20057, 15 FLW Fed C 1104, related proceeding,
Page 155
16 USCS § 1538
dismd on other grounds, dismd without prejudice, in part (2005, MD Fla) 2005 US Dist LEXIS 38841, vacated on other
grounds, remanded (Jan 18, 2006) and (overruled as stated in Dillard v Colbert County Comm'n (2007, MD Ala) 494 F
Supp 2d 1297).
Claimants failed to meet their burden for preliminary injunction in citizen suit under Endangered Species Act, 16
USCS §§ 1531 et seq., specifically 16 USCS § 1540(g), to prevent county from authorizing public motor vehicle traffic
on county beaches because they did not show that daytime vehicle traffic was reasonably likely to result in taking of
endangered sea turtles in violation of 16 USCS § 1538(a)(1)(B); there was no evidence that hatchlings perished after
being stuck in tire ruts or that false crawls occurred because of tire ruts; further, effects of recent hurricanes had more of
effect on turtle nesting because of storm surges and excess sand deposits burying nests. Leatherback Sea Turtle v Flagler County Bd. of County Comm'rs (2004, MD Fla) 359 F Supp 2d 1209.
Plaintiff conservationist's motion for judgment on pleadings on his Endangered Species Act (ESA), 16 USCS §§
1538 et seq., claim was denied because, although fisherman admitted that lobster traps that entangled endangered
humpback whale belonged to him, fisherman denied that there was any actual harm to whale that would have constituted "taking" within meaning of ESA, and denied that his continued fishing posed any ongoing, imminent threat to
whales. Strahan v Holmes (2007, DC Mass) 510 F Supp 2d 161, findings of fact/conclusions of law (2009, DC Mass)
595 F Supp 2d 161.
Fisherman "captured" humpback whale when it became entangled in his lobster gear, and although whale eventually broke free of fisherman's trawl and was later disentangled from gear stuck in its baleen, it was "taken captive" by
fisherman's gear for at least some period of time; therefore, fisherman violated 16 USCS § 1538 when humpback whale
became entangled, and hence "taken", in his lobster gear, and fact that taking was accidental was irrelevant; however,
because there was no risk of irreparable harm to humpback whale in absence of injunction and burden of injunction
upon fisherman, being prevented from pursuing his livelihood, outweighed its benefits, court refused to enter injunction
under 16 USCS § 1540(g)(1)(A). Strahan v Holmes (2009, DC Mass) 595 F Supp 2d 161.
9.----Hunting
In order to convict defendant for illegally taking grizzly bear under Endangered Species Act of 1973 (16 USCS §§
1538(a)(1)(6) and 1540(b)(1)), government must prove (1) that defendant knowingly took animal within United States,
(2) that animal was grizzly bear, and (3) that defendant did not have permission to take bear; government need not prove
that defendant knew he was shooting grizzly bear at time he pulled trigger. United States v St. Onge (1988, DC Mont)
676 F Supp 1044, 18 ELR 20733.
10.----Land development
Landowner may proceed with his plans to develop land into lounge/restaurant/hotel, despite complaint that project
will constitute "taking" of Perdido Key beach mouse in violation of 16 USCS § 1538(a)(1)(B), because lack of certainty
of proof that beach mice currently live on property being developed undercuts argument that project will threaten "taking" by (1) construction actually killing or injuring mice, (2) development degrading mouse habitat, or (3) influx of
house mice, feral and house cats, and human foot traffic destroying mice and habitat. Morrill v Lujan (1992, SD Ala)
802 F Supp 424, 23 ELR 20379.
Federal government's application of 16 USCS § 1538(a)(1)(B) to preclude proposed development of shopping center, residential subdivision, and office buildings on property containing 6 regulated species did not exceed Congress's
authority under Commerce Clause, even if regulated species had no effect on interstate commerce, where effect of
commercial/residential development in aggregate substantially affected interstate commerce. GDF Realty Invs., Ltd. v
Norton (2001, WD Tex) 169 F Supp 2d 648, 32 ELR 20103, affd (2003, CA5 Tex) 326 F3d 622, 56 Envt Rep Cas 1033,
reh den, reh, en banc, den (2004, CA5 Tex) 362 F3d 286, 58 Envt Rep Cas 1187 and cert den (2005) 545 US 1114, 125
S Ct 2898, 162 L Ed 2d 294, 60 Envt Rep Cas 1512.
11.----Logging
United States Forest Service is permanently enjoined from failing to implement remedial practices within 1200
meters of active and inactive red-cockaded woodpecker colony sites in national forests of Texas where Forest Service's
practice of "even-aged" timber management has resulted in significant habitat modification constituting a "taking" of
red-cockaded woodpecker within meaning of 16 USCS § 1538(a)(1)(B) of Endangered Species Act. Sierra Club v
Lyng (1988, ED Tex) 694 F Supp 1260, 19 ELR 20450, affd in part and revd in part on other grounds, remanded sub
nom Sierra Club v Yeutter (1991, CA5 Tex) 926 F2d 429, 21 ELR 20755, summary judgment gr sub nom Sierra Club v
Page 156
16 USCS § 1538
Madigan (1992, ED Tex) 1992 US Dist LEXIS 21494, judgment entered (1993, WD Tex) 36 Envt Rep Cas 1533 and
adopted, in part, motion gr, summary judgment den sub nom Sierra Club v Espy (1993, ED Tex) 822 F Supp 356, 24
ELR 20051, revd (1994, CA5 Tex) 18 F3d 1202, 38 Envt Rep Cas 1421, 28 FR Serv 3d 1293, 24 ELR 20888 and vacated, remanded (1994, CA5 Tex) 38 F3d 792, 25 ELR 20426, reh den (1994, CA5 Tex) 1994 US App LEXIS 37197,
subsequent app (1995, CA5 Tex) 67 F3d 90, 41 Envt Rep Cas 2048, 26 ELR 20160, judgment entered (1997, ED Tex)
974 F Supp 905, 28 ELR 20344, affd (1999, CA5 Tex) 185 F3d 349, 49 Envt Rep Cas 1204, 29 ELR 21432, motion den,
motion gr, motion to strike gr, in part (1999, ED Tex) 1999 US Dist LEXIS 17306 and reh, en banc, gr, vacated (2000,
CA5 Tex) 204 F3d 580 and vacated, remanded (2000, CA5 Tex) 228 F3d 559, 51 Envt Rep Cas 1385, 31 ELR 20135,
reh den (2000, CA5 Tex) 2000 US App LEXIS 31850 and cert den (2001, App DC) 2001 US App LEXIS 4010.
Landowners who were temporarily denied permit to conduct logging operation and engage in taking of spotted owl
from their habitat had not themselves suffered compensable taking of their property without due process. Seiber v United States (2002) 53 Fed Cl 570, 55 Envt Rep Cas 1390, affd (2004, CA FC) 364 F3d 1356, 58 Envt Rep Cas 1246, 34
ELR 20026, cert den (2004) 543 US 873, 125 S Ct 113, 160 L Ed 2d 122.
12.----Pesticide or rodenticide use
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.
13.----Water diversion
No "taking" has occurred within meaning of 16 USCS § 1538 where, in Navy program to lease rights to divert water onto leased lands, objecting Indian tribe fails to demonstrate that leased program has harmed endangered species of
fish and fails to distinguish between Navy and other uses of river water, including tribal use. Pyramid Lake Paiute
Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572.
Where Army Corps of Engineers (Corps) plan did not implement required water flow regimes on river basin, court
enjoined Corps because environmental organizations were likely to succeed in establishing that Corps' plan resulted in
taking of both endangered and threatened species. Am. Rivers v United States Army Corps of Eng'rs (2003, DC Dist
Col) 271 F Supp 2d 230, 57 Envt Rep Cas 1106, 33 ELR 20239.
Federal agencies were entitled to summary judgment in dispute involving use of water in reservoir because no endangered or threatened species were harmed in "taking" as contemplated in 16 USCS § 1538(a)(1) and defined in 16
USCS § 1532(19); habitat modification does not constitute harm unless it actually kills or injures wildlife. San Carlos
Apache Tribe v United States (2003, DC Ariz) 272 F Supp 2d 860, affd (2005, CA9 Ariz) 417 F3d 1091, subsequent
app (2005, CA9 Ariz) 144 Fed Appx 635, 35 ELR 20163.
Where, without providing any evidence to meet difficult burden before it, plaintiff Indian tribe stated that defendant
U.S. Army Corps of Engineers "may" not be fulfilling requirement of Incidental Take Statement as to certain water levels, tribe failed to meet its burden of showing that Corps had acted arbitrarily and capriciously in that regard, and thus
Corps' motion for summary judgment on claim under 16 USCS § 1538(a)(1)(B) was granted. 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.
Florida was denied injunctive relief requiring Army Corps of Engineers to maintain recommended flow of river
waters downstream from dam in order to protect critical habitat of mussel species listed as threatened and endangered
because Florida failed to show either that Corps failed to consult with Fish and Wildlife Service to ensure that its actions did not destroy critical habitat under 16 USCS § 1536(a)(2) or that Corps performed illegal taking of such habitat
under 16 USCS § 1538(a)(1)(B); absent such showings, Florida failed to meet its burden of demonstrating that it had
likelihood of success on merits. Alabama v United States Army Corps of Eng'rs (2006, ND Ala) 441 F Supp 2d 1123.
County dike district violated Endangered Species Act because reconstructing tidegates resulted in harm to threatened Chinook salmon, which constituted taking under 16 USCS §§ 1532(19) and 1538(a)(1)(B) in that taking prohibition was extended to salmon under 16 USCS § 1533(d). Swinomish Indian Tribal Cmty. v Skagit County Dike Dist. No.
22 (2008, WD Wash) 618 F Supp 2d 1262.
Page 157
16 USCS § 1538
Water users lacked standing to bring Commerce Clause challenge to application of only § 9, 16 USCS § 1538,
where although their water deliveries had been reduced by United States Fish and Wildlife Service's biological opinion,
there was no threat of imminent § 9 enforcement, and thus, there was no causal connection between water users' injury
and § 9's application to coordinated operation of water project. Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 663
F Supp 2d 922.
14. Exception for species held in captivity
Exception under 16 USCS § 1538(b) is not available to persons who hold animals protected under Act in course of
commercial activity. United States v Kepler (1976, CA6 Ky) 531 F2d 796, 6 ELR 20340.
16 USCS § 1538(b) exception is restricted to animals or parts thereof held for noncommercial activities prior to effective date of Act and does not apply to spermaceti imported by company's predecessor in interest prior to effective
date of Act pursuant to hardship permit granted under predecessor act. Delbay Pharmaceuticals, Inc. v Department of
Commerce (1976, DC Dist Col) 409 F Supp 637, 6 ELR 20211.
15. Practice and procedure
Defendant was violating Endangered Species Act, 16 USCS §§ 1538, on day cheetah skin was seized by government; statute of limitations did not begin to run until defendant ceased possessing skin, rather than on day he first took
possession of it. United States v Winnie (1996, CA7 Wis) 97 F3d 975, 43 Envt Rep Cas 1575.
Where interest groups challenged United States Forest Service's (Service) cattle grazing reduction scheme for
Apache-Sitgreaves National Forest, groups' claim that 16 USCS § 1538 was violated was moot because it was based on
incidental take statements, regarding loach minnow and Mexican Spotted Owl, that accompanied Biological Opinion
which was superseded by Biological Assessment and Evaluation that was not accompanied by incidental take statements. Forest Guardians v United States Forest Serv. (2003, CA9 Ariz) 329 F3d 1089, 2003 CDOS 4398, 2003 Daily
Journal DAR 5658, 33 ELR 20205.
Environmental groups' claim against developer under 16 USCS § 1538, which was that developer's activities and
planned project would harass bald eagles by disrupting their normal behavioral patterns, became moot after district
court's judgment was issued in favor of groups and while case was on appeal because Fish and Wildlife Service delisted
bald eagle; however, mootness of claim did not affect district court's award of attorney fees to groups under 16 USCS §
1540(g)(4). Ctr. for Biological Diversity v Marina Point Dev. Co. (2009, CA9 Cal) 566 F3d 794.
Because only 2001 biological opinion (B.O.) and 2002 B.O. had been issued when environmental groups filed their
third amended complaint, their pleadings were interpreted as directed at 2001 B.O. and 2002 B.O, but after third
amended complaint, U.S. Fish and Wildlife Service (FWS) issued 2003 B.O., which superseded both of them; FWS's
issuance of 2003 B.O. mooted prayer for both injunctive and declaratory relief. Rio Grande Silvery Minnow v Bureau of
Reclamation (2010, CA10 NM) 601 F3d 1096, 70 Envt Rep Cas 1577, 40 ELR 20128.
Claim brought by non-profit organizations dedicated to protection of wild fishes under § 9 of Endangered Species
Act of 1973 (ESA), 16 USCS § 1538, was properly dismissed for lack of subject matter jurisdiction because statute
made clear discretionary nature of defendants' enforcement powers; citizen suit provisions under § 11(g)(1)(A) of ESA,
16 USCS § 1540(g)(1)(A), also did not provide independent jurisdiction to challenge federal agency's implementation of
ESA. 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.
Nonprofit environmental organizations' argument that they had not raised 16 USCS § 1538 claim in their complaint
against several federal agencies and officials was rejected where they plainly argued in their opposition to agencies' and
officials' motion to dismiss that their allegations were sufficient to raise claim under that section. Salmon Spawning &
Recovery Alliance v United States Customs & Border Prot. (2008, CA FC) 550 F3d 1121, 68 Envt Rep Cas 1041, 30
BNA Intl Trade Rep 1865, 39 ELR 20304.
Defendant charged with misdemeanor of knowingly taking grizzly bear under 16 USCS §§ 1538(a)(1) and
1540(b)(1) is not entitled to bill of particulars nor protective order against U.S. States Marshal Service, because (1) language of existing information adequately apprises defendant of offense with which he is charged, making amendment to
allege separate crimes for wounding and killing of bear unnecessary, and (2) marshals' administrative function of ob-
Page 158
16 USCS § 1538
taining information from defendant during or following arraignment is proper, but no fingerprints or photographs shall
be taken except by further court order. United States v St. Onge (1987, DC Mont) 676 F Supp 1041.
Lumber company is denied summary dismissal of environmental groups' 16 USCS § 1538 claim, where it is undisputed that company is conducting timber operations and that sedimentation from these operations results in degradation
of coho salmon habitat and concomitant harm to coho salmon, because groups have satisfied elements required for associational standing. Coho Salmon v Pacific Lumber Co. (1999, ND Cal) 61 F Supp 2d 1001.
Applicant intervenors, associations and individuals with economic and recreational interests in trapping and snaring
wildlife, were entitled to intervene as of right under Fed. R. Civ. P. 24(a)(2) in suit alleging that state authorization of
trapping and snaring activities violated 16 USCS § 1538; applicant intervenors had established and substantial interests
that could have been impaired if suit were successful, and those interests would not have been adequately protected in
applicant intervenors' absence because State had no particular interest in preserving existing trapping and snaring practices. Animal Prot. Inst. v Merriam (2006, DC Minn) 242 FRD 524, summary judgment gr, summary judgment den,
injunction gr (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).
Organizations and individuals' motion to intervene of right under Fed. R. Civ. P. 24(a) where: (1) motion to intervene was timely filed; (2) relationship between organizations and individuals' claims and dispute between Animal Protection Institute (API) and Maine Department of Inland Fisheries and Wildlife (DIFW) was sufficiently close to conclude that they had interest related to property or transaction that formed basis of ongoing suit and disposition of action
threatened to create practical impediment to their ability to protect their interest; (3) there were private interests at stake,
which organizations and individuals stood to lose if API prevailed in its action and DIFW may not have been able to
adequately represent organizations and individuals' interests in litigation, interests related to property or transaction that
formed basis of ongoing suit; and (4) although impact on API was that it would have to contend with parties who were
likely to be more adversarial than DIFW, intervention of adversarial public interest groups in such law suit was predictable and inevitable part of process. Animal Prot. Inst. v Martin (2007, DC Me) 241 FRD 66.
Environmental groups were entitled to preliminary injunction prohibiting livestock grazing on allotments in Malheur National Forest (MNF) because they demonstrated likelihood of success on their claim that United States Forest
Service and National Marine Fisheries Service acted arbitrarily under 5 USCS § 706 and violated 16 USCS §§
1536(a)(2) and 1538(a)(1) in managing public lands supporting threatened steelhead trout in MNF; groups also made
sufficient showing that irreparable injury would occur to threatened steelhead trout due to grazing on allotments during
2008 grazing season. Or. Natural Desert Ass'n v Kimbell (2008, DC Or) 68 Envt Rep Cas 1632.
Two animal protection organizations were entitled to injunctive relief in their civil suit against Minnesota Department of Natural Resources (DNR) because they sufficiently showed that DNR violated § 9 of Endangered Species Act,
16 USCS § 1538(a)(1)(B), by failing to promulgate and enforce trapping regulations that would restrict, modify or
eliminate incidental taking of Canada Lynx through trapping activities in core Canada Lynx habitat and ranges in Minnesota. U.S. Const. amend. X would not be violated by issuance of injunction against DNR because DNR was not being
ordered to take positive steps to advance goals of federal regulatory scheme, but was merely being directed to find
means of bringing its regulatory and licensing scheme for trapping in state into compliance with federal law. 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).
Although leghold traps set in compliance with Maine's trapping regulations were likely to subject Canada lynx to
incidental takes that violated Endangered Species Act, 16 USCS § 1538(a)(1)(B), animal rights groups were not granted
permanent injunction prohibiting use of leghold traps because animal rights groups failed to prove that Canada lynx as
species would suffer irreparable harm from injuries caused by leghold traps. Animal Welfare Inst. v Martin (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.
Even if plaintiffs were to renew their request for injunction, and even if court were to entertain it, there was no evidence from which court could conclude that injunction would redress employee's alleged aesthetic injury; it had been
alleged that employee could tell from their behavior whether elephants were being mistreated even if he was not witness
to actual alleged mistreatment and therefore, if complained-of practices were enjoined, employee then would be able to
attend circus without aesthetic injury because employee would be able to detect effects of injunction on animals' behav-
Page 159
16 USCS § 1538
ior; however, injunction against chaining would not necessarily cause elephants to stop swaying and evidence showed
that even if injunction against bullhook and chains were issued and even if that injunction brought about some kind of
change in elephants' behavior that employee actually had power to discern, employee would not be able to detect effects
of this relief because he was unlikely to ever see these elephants again as there was no basis in Endangered Species Act,
16 USCS §§ 1531 et seq., upon which court could compel corporation to grant employee access to corporation's facility;
thus, employee's alleged injury was not redressable. ASPCA v Feld Entm't, Inc. (2009, DC Dist Col) 677 F Supp 2d 55,
71 Envt Rep Cas 1651.
There was no injury in fact that nonprofit organization suffered as result of anything that corporation did or failed
to do; informational standing arises only in very specific statutory contexts where statutory provision has explicitly created right to information and nothing in Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., obligated corporation
to give organization any information; organization's claims against corporation were pursuant to § 9 of ESA for alleged
taking of corporation's elephants under 16 USCS § 1538, and there was nothing in § 9 that imposed duty on corporation
to provide any kind of information to organization; even if organization were to succeed in demonstrating that corporation's use of bullhook and chains was taking, ruling by court to that effect would not generate any information for organization. ASPCA v Feld Entm't, Inc. (2009, DC Dist Col) 677 F Supp 2d 55, 71 Envt Rep Cas 1651.
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.
Court's inability to review Bureau of Customs and Border Protection's failure to enforce 16 USCS § 1538 prevented
plaintiffs from finding redress for their grievances in court, and it therefore dismiss their § 1538 claim 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.
16.--Evidence
Government did not prove beyond reasonable doubt that falcons that defendant transported were anatum peregrine
falcons, which are endangered species, where witness conceded that he could not make conclusive identification on
bird's features, and thus, conviction under Endangered Species Act, 16 USCS §§ 1538(a)(1)(E) and 1540(b)(1), for purchase and transport of anatum peregrine falcons, could not be sustained. United States v Doyle (1986, CA9 Mont) 786
F2d 1440, 16 ELR 20519, cert den (1986) 479 US 984, 93 L Ed 2d 576, 107 S Ct 572.
There was sufficient evidence to sustain jury's determination that defendant, operator of aviary, had guilty
knowledge that yellow-naped parrots were smuggled, where timing and delivery of birds occurred during hatching season of wild birds and where many birds had disease not found in domestically-bred birds. United States v Freeman
(1996, CA5 Tex) 77 F3d 812, 26 ELR 20946, reh, en banc, den (1996, CA5 Tex) 84 F3d 435.
Trial court properly granted summary judgment to federal forest service where environmental organization did not
show that state livestock agency was violating any environmental laws despite restrictions imposed on permit issued to
it by federal forest service so that state livestock agency could operate its bison capture facility in Montana; in particular, environmental organization did not show that Endangered Species Act, 16 USCS § 1538 (ESA) was violated because
no causal connection had been shown between alleged harm and state livestock agency's actions, and, thus, no proven
"taking" was established, and organization did not show that National Environmental Policy Act, 42 USCS § 4332, was
violated because federal forest service took required "hard look" at environmental consequences of its actions, and its
decision not to prepare supplemental analysis was not arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. Cold Mt. v Garber (2004, CA9 Mont) 375 F3d 884, 58 Envt Rep Cas 1833, 34 ELR 20055.
Unpublished Opinions
Page 160
16 USCS § 1538
Unpublished: In case in which company and individual appealed their convictions for violating 18 USCS § 371 and
16 USCS §§ 3372(d)(1) and (2), and 1538(c)(1), they unsuccessfully argued that district court erred by denying their
motion to suppress because search exceeded scope of warrant; warrant stated with particularity items to be seized and
place to be searched, and officers did not exceed scope of search warrant. United States v Bemka Corp. (2010, CA11
Fla) 368 Fed Appx 941.
Unpublished: In case in which company and individual appealed were convicted for violating 18 USCS § 371 and
16 USCS §§ 3372(d)(1) and (2), and 1538(c)(1), they unsuccessfully argued that evidence was insufficient to convict
individual on all three counts; defendant's knowledge and participation in conspiracy could be inferred from evidence in
record, and reasonable jury could have concluded that he mislabeled shipments of paddlefish roe as bowfin roe and attempted to export bowfin roe without proper permits. United States v Bemka Corp. (2010, CA11 Fla) 368 Fed Appx
941.
Unpublished: In case in which company and individual appealed their convictions for violating 18 USCS § 371 and
16 USCS §§ 3372(d)(1) and (2) and 1538(c)(1), they unsuccessfully argued that since there was insufficient evidence to
support probable cause to issue search warrant for company's headquarters, district court erred by denying their motion
to suppress. Under totality of circumstances test, magistrate judge reasonably found probable cause based on allegations
in warrant affidavit, and there was no error in finding that information in affidavit was not stale because affidavit also
presented evidence of more recent wrongdoing by defendants. United States v Bemka Corp. (2010, CA11 Fla) 368 Fed
Appx 941.
17.--Forfeiture proceedings
Probable cause exists to bring action under 16 USCS §§ 1531(a)(4) and 1538(c)(1) for violation of Convention on
International Trade in Endangered Species of Wild Fauna and Flora by United States for forfeiture of 10,875 partially
tanned crocodile hides en route from Bolivia to Paris by airplane that made stop in Miami where (1) documentation
accompanying hides identifies hides as being from species of crocodile that, although not endangered, is subject to strict
regulation, (2) permit accompanying hides is photocopy not "endorsed" by Bolivian official as required, and (3) permit
indicated only 3,210 hides were being shipped. United States v 3,210 Crusted Sides of Caiman Crocodilus Yacare
(1986, SD Fla) 636 F Supp 1281, 16 ELR 20889.
All 10,875 partially tanned crocodile hides en route from Bolivia to Paris by airplane that made stop in Miami are
subject to forfeiture under 16 USCS § 1538 where only 3,210 hides were reported to Bolivian authorities who issued
permit, because purpose of Convention is to prevent extinction of certain species by over-exploitation, penalties for violations must be stringent, and merely forfeiting offending portion of hides would only serve to thwart intent and undermine effectiveness of Convention and Endangered Species Act of 1973. United States v 3,210 Crusted Sides of
Caiman Crocodilus Yacare (1986, SD Fla) 636 F Supp 1281, 16 ELR 20889.
Government has established probable cause to believe that importation of birds from Peru violated 16 USCS §§
1538(c)(1) and 3372(a)(2)(A) and is entitled to forfeiture of 2,507 live canary winged parakeets, where evidence indicates that birds are found only in jungle region from which Peru has banned wildlife exportation, that Convention on
International Trade in Endangered Species (CITES) permit originally named different species but was irregularly altered on original copy only, and that CITES permit was never signed by shipper or by minister with power to authorize
special exportation, because there is no "innocent owner" defense to forfeiture action and even if there was, experienced
importer was shown to be at least passively negligent in relying on "warranty" of foreign businessman with no apparent
legal training. United States v 2,507 Live Canary Winged Parakeets etc. (1988, SD Fla) 689 F Supp 1106, 19 ELR
20101.
Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that
were brought into United States in violation of 16 USCS § 1538(a), (c); hunters' non-constitutional claims based on
merits of forfeiture proceedings were barred from judicial review under 18 USCS § 983(e) because hunters received
sufficient notice of forfeiture proceedings. Conservation Force v Salazar (2009, ND Cal) 677 F Supp 2d 1203.
Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that
were brought into United States in violation of 16 USCS § 1538(a), (c); hunters' claim under Administrative Procedure
Act was not reviewable by court because decision not to remit administratively forfeited property was exercise of Secretary of Interior's discretion for purposes of 5 USCS § 701(a)(2). Conservation Force v Salazar (2009, ND Cal) 677 F
Supp 2d 1203.
Page 161
16 USCS § 1538
Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that
were brought into United States in violation of 16 USCS § 1538(a), (c) because forfeitures did not constitute excessive
fines for purposes of 18 USCS § 983(g) and U.S. Const. amend. VIII; hunters did not establish that forfeitures were
grossly disproportionate to offenses, and forfeitures were within remedial bounds as set forth by Congress because
hunters failed to comply with ESA and Convention on International Trade in Endangered Species of Wild Fauna and
Flora. Conservation Force v Salazar (2009, ND Cal) 677 F Supp 2d 1203.
Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that
were brought into United States in violation of 16 USCS § 1538(a), (c); hunters' claim for alleged violation of 16 USCS
§ 1537 could not be brought under 16 USCS § 1540 (g)(1)(A) because hunters' allegation that agencies failed to cooperate with foreign nations' conservation programs alleged nothing more than maladministration of ESA, and adjudicating
error on part of Secretary of Interior in administering ESA would effect wholesale abrogation of final agency action
requirement under 5 USCS § 704. Conservation Force v Salazar (2009, ND Cal) 677 F Supp 2d 1203.
18. Miscellaneous
Defendant agencies violated Endangered Species Act (16 USCS §§ 1531 et seq.), where leases were issued without
preparation of comprehensive biological opinion as to effects of leases "and" of all post-leasing activities on threatened
and endangered species, since stipulations in leases cannot be substituted for comprehensive biological opinions, and
ESA requires Fish and Wildlife Service to prepare biological opinion assessing impact of issuance of leases and of all
post-leasing activities on threatened and endangered species. Bob Marshall Alliance v Hodel (1988, CA9 Mont) 852
F2d 1223, 18 ELR 21152, 103 OGR 525, cert den (1989) 489 US 1066, 103 L Ed 2d 810, 109 S Ct 1340.
Federal Energy Regulatory Commission (FERC) did not act arbitrarily or capriciously in relying on biological
opinions (BiOps) of U.S. Fish and Wildlife Service in relation to hydroelectric project's effect on Endangered Species
Act listed species; licensee, in challenging FERC's reliance on BiOps, did not present new information that called into
question BiOps' factual conclusions; moreover, BiOps were not legally flawed or unsupported by evidence. City of Tacoma v FERC (2006, App DC) 373 US App DC 117, 460 F3d 53, 36 ELR 20173.
United States Court of International trade lacked subject matter jurisdiction over nonprofit environmental organizations' 16 USCS § 1538 claim alleging that several federal agencies and officials had violated prohibition on importation
of endangered species by failing to enforce ban because enforcement powers were discretionary, and as such, claim was
not justiciable under 5 USCS § 701(a)(2). Salmon Spawning & Recovery Alliance v United States Customs & Border
Prot. (2008, CA FC) 550 F3d 1121, 68 Envt Rep Cas 1041, 30 BNA Intl Trade Rep 1865, 39 ELR 20304.
Endangered Species Act of 1973 applies to captive-bred sea turtles which are hatched and raised in controlled environment. Cayman Turtle Farm, Ltd. v Andrus (1979, DC Dist Col) 478 F Supp 125, 9 ELR 20416.
Injunctive relief would not be issued pursuant to 16 USCS § 1538(a)(1)(B) to prevent state from issuing scientific
research permits to some whale-watching vessels exempting them from 500-yard buffer zone, where state issued last
permit some 7 years earlier, and conservationist opposing exemptions did not show likelihood that state would repeat its
actions. Strahan v Coxe (1996, DC Mass) 939 F Supp 963, 45 Fed Rules Evid Serv 987, 27 ELR 20254, affd in part and
vacated in part on other grounds (1997, CA1 Mass) 127 F3d 155, 45 Envt Rep Cas 1321, 28 ELR 20114, cert den
(1998) 525 US 830, 142 L Ed 2d 63, 119 S Ct 81 and cert den (1998) 525 US 978, 142 L Ed 2d 356, 119 S Ct 437, 47
Envt Rep Cas 2024.
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.
Because court's memorandum opinion and order, which vacated and remanded biological opinion and regulations
of National Marine Fisheries Service (NMFS), left dilemma, as well as uncertainty and confusion, regarding liability
under Endangered Species Act, 16 USCS §§ 1531 et seq., of members of Hawaii longline fishing industry and others for
taking of endangered species, Fed. R. Civ. P. 59(e) motion to reconsider memorandum opinion and order was granted;
but, while vacatur of biological opinion and regulations caused serious disruptions for parties, there was no serious possibility that NMFS could substantiate its decision, and, although it was therefore inappropriate for court to remand biological opinion and regulations without vacatur, court exercised its equitable authority to stay prior mandate to leave in
place interim regime until NMFS could complete new biological order. Haw. Longline Ass'n v Nat'l Marine Fisheries
Page 162
16 USCS § 1538
Serv. (2003, DC Dist Col) 288 F Supp 2d 7, magistrate's recommendation, costs/fees proceeding (2004, DC Dist Col)
2004 US Dist LEXIS 19511.
In issuing biological opinion (BO), defendant U.S. Fish and Wildlife Service was consulting agency, not action
agency, and cannot be held responsible for "maladministration" of its BO; thus, plaintiff Indian Tribe's claim under § 9
of Endangered Species Act, 16 USCS §§ 1538(a)(1)(B), 1540(g)(1)(A), failed. Miccosukee Tribe of Indians v United
States (2006, SD Fla) 430 F Supp 2d 1328, 19 FLW Fed D 833, motions ruled upon (2007, SD Fla) 2007 US Dist LEXIS 32612, summary judgment gr, motion den, as moot (2007, SD Fla) 528 F Supp 2d 1317, affd in part and revd in part
on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C
1780.
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.
California Department of Fish and Game employees were entitled to summary judgment in environmental group's
action alleging removal of endangered Sebastopol meadowfoam plant in violation of 16 USCS § 1538(a)(2)(B), part of
Endangered Species Act; no reasonable trier of fact could find that employees acted in knowing violation of state law
because evidence showed that employee removed meadowfoam pursuant to Cal. Fish & Game Code § 1910 based on
their belief that meadowfoam had been illegally transferred to development site at issue; group did not meet its burden
of proving that private development site at issue was "area under Federal jurisdiction" within meaning of 16 USCS §
1538(a)(2)(B) based on fact that site was wetland adjacent to navigable waterways and therefore subject to requirements
of Clean Water Act, 33 USCS §§ 1251 et seq. N. Cal. River Watch v Wilcox (2008, ND Cal) 547 F Supp 2d 1071, 67
Envt Rep Cas 1600, affd (2010, CA9 Cal) 620 F3d 1075, 71 Envt Rep Cas 1710, 40 ELR 20233, reprinted as amd
(2011, CA9 Cal) 2011 US App LEXIS 1752 and amd on other grounds, clarified (2011, CA9 Cal) 2011 US App LEXIS
1753.
When defendants removed Rhesus Macaque from Thailand and brought it into United States, they violated 16
USCS § 1538(c)(1) by engaging in trade that was contrary to provisions of Convention on International Trade in Endangered Species of Wild Fauna and Flora; thus violating second paragraph of 18 USCS § 545. United States v Lawson
(2009, ED Wash) 618 F Supp 2d 1251, affd (2010, CA9 Wash) 377 Fed Appx 712, cert den (2010, US) 131 S Ct 618,
178 L Ed 2d 449.
Court of International Trade lacked jurisdiction over claims under 16 USCS § 1538(c), because Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, D.C., art. II, para. 2(a), Aug. 3, 1973,
T.I.A.S. No. 8249, 27 U.S.T. 1092, merely required regulation, not complete embargo of, imports of bigleaf mahogany.
Native Fed'n of the Madre De Dios River & Tributaries v Bozovich Timber Prods. (2007) 31 CIT 585, 491 F Supp 2d
1174, 29 BNA Intl Trade Rep 1692, 37 ELR 20090.
Knowledge and actions of master of vessel can be imputed to owner of vessel; thus, owner of vessel, who allegedly
equipped vessel with qualified turtle excluder devices (TEDs) and instructed vessel's operator to use them as required
by law, can nonetheless be found to have knowingly and unlawfully failed to use TEDs in each net during trawling on
vessel greater than 25 feet in length, in Gulf area, offshore, in violation of § 1538(a)(1)(G). Blue Horizon, Inc. (1992,
NOAA App) 6 ORW 700.
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.
Unpublished: Defendant's speedy trial rights under 18 USCS §§ 3161, 3162, and Sixth Amendment were not violated because he was originally charged with loggerhead turtle egg theft as violation of supervised release; thus, he was
not arrested at that time for substantive charge, and his actual arrest was on same day as his indictment for violating 16
USCS § 1538 and related offenses. United States v Keel (2007, CA11 Fla) 254 Fed Appx 759.
Page 163
10 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 § 1539
§ 1539. Exceptions
(a) Permits.
(1) The Secretary may permit, under such terms and conditions as he shall prescribe-(A) any act otherwise prohibited by section 9 [16 USCS § 1538] for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j); or
(B) any taking otherwise prohibited by section 9(a)(1)(B) [16 USCS § 1538(a)(1)(B)] if such taking is incidental
to, and not the purpose of, the carrying out of an otherwise lawful activity.
(2) (A) No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1)(B) unless the
applicant therefor submits to the Secretary a conservation plan that specifies-(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be
available to implement such steps;
(iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are
not being utilized; and
(iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the
plan.
(B) If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related conservation plan that-(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;
and
(v) the measures, if any, required under subparagraph (A)(iv) will be met;
and he has received such other assurances as he may require that the plan will be implemented, the Secretary shall
issue the permit. The permit shall contain such terms and conditions as the Secretary deems necessary or appropriate to
carry out the purposes of this paragraph, including, but not limited to, such reporting requirements as the Secretary
deems necessary for determining whether such terms and conditions are being complied with.
(C) The Secretary shall revoke a permit issued under this paragraph if he finds that the permittee is not complying
with the terms and conditions of the permit.
Page 164
16 USCS § 1539
(b) Hardship exemptions.
(1) If any person enters into a contract with respect to a species of fish or wildlife or plant before the date of the publication in the Federal Register of notice of consideration of that species as an endangered species and the subsequent
listing of that species as an endangered species pursuant to section 4 of this Act [16 USCS § 1533] will cause undue
economic hardship to such person under the contract, the Secretary, in order to minimize such hardship, may exempt
such person from the application of section 9(a) of this Act [16 USCS § 1538(a)] to the extent the Secretary deems appropriate if such person applies to him for such exemption and includes with such application such information as the
Secretary may require to prove such hardship; except that (A) no such exemption shall be for a duration of more than
one year from the date of publication in the Federal Register of notice of consideration of the species concerned, or shall
apply to a quantity of fish or wildlife or plants in excess of that specified by the Secretary; (B) the one-year period for
those species of fish or wildlife listed by the Secretary as endangered prior to the effective date of this Act shall expire
in accordance with the terms of section 3 of the Act of December 5, 1969 (83 Stat. 275); and (C) no such exemption
may be granted for the importation or exportation of a specimen listed in Appendix I of the Convention which is to be
used in a commercial activity.
(2) As used in this subsection, the term "undue economic hardship" shall include, but not be limited to:
(A) substantial economic loss resulting from inability caused by this Act to perform contracts with respect to species of fish and wildlife entered into prior to the date of publication in the Federal Register of a notice of consideration
of such species as an endangered species;
(B) substantial economic loss to persons who, for the year prior to the notice of consideration of such species as
an endangered species, derived a substantial portion of their income from the lawful taking of any listed species, which
taking would be made unlawful under this Act; or
(C) curtailment of subsistence taking made unlawful under this Act by persons (i) not reasonably able to secure
other sources of subsistence; and (ii) dependent to a substantial extent upon hunting and fishing for subsistence; and (iii)
who must engage in such curtailed taking for subsistence purposes.
(3) The Secretary may make further requirements for a showing of undue economic hardship as he deems fit. Exceptions granted under this section may be limited by the Secretary in his discretion as to time, area, or other factor of applicability.
(c) Notice and review. The Secretary shall publish notice in the Federal Register of each application for an exemption
or permit which is made under this section. Each notice shall invite the submission from interested parties, within thirty
days after the date of the notice, [of] written data, views, or arguments with respect to the application; 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.
Information received by the Secretary as a part of any application shall be available to the public as a matter of public
record at every stage of the proceeding.
(d) Permit and exemption policy. The Secretary may grant exceptions under subsections (a)(1)(A) and (b) of this section only if he finds and publishes his finding in the Federal Register that (1) such exceptions were applied for in good
faith, (2) if granted and exercised will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy set forth in section 2 of this Act [16 USCS § 1531].
(e) Alaska natives.
(1) Except as provided in paragraph (4) of this subsection the provisions of this Act shall not apply with respect to
the taking of any endangered species or threatened species, or the importation of any such species taken pursuant to this
section, by-(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska; or
(B) any non-native permanent resident of an Alaskan native village;
if such taking is primarily for subsistence purposes. Non-edible byproducts of species taken pursuant to this section
may be sold in interstate commerce when made into authentic native articles of handicrafts and clothing; except that the
provisions of this subsection shall not apply to any non-native resident of an Alaskan native village found by the Secretary to be not primarily dependent upon the taking of fish and wildlife for consumption or for the creation and sale of
authentic native articles of handicrafts and clothing.
(2) Any taking under this subsection may not be accomplished in a wasteful manner.
(3) As used in this subsection--
Page 165
16 USCS § 1539
(i) The term "subsistence" includes selling any edible portion of fish or wildlife in native villages and towns in
Alaska for native consumption within native villages or towns; and
(ii) The term "authentic native articles of handicrafts and clothing" means items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices. Traditional native
handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting.
(4) Notwithstanding the provisions of paragraph (1) of this subsection, whenever the Secretary determines that any
species of fish or wildlife which is subject to taking under the provisions of this subsection is an endangered species or
threatened species, and that such taking materially and negatively affects the threatened or endangered species, he may
prescribe regulations upon the taking of such species by any such Indian, Aleut, Eskimo, or non-Native Alaskan resident of an Alaskan native village. Such regulations may be established with reference to species, geographical description of the area included, the season for taking, or any other factors related to the reason for establishing such regulations and consistent with the policy of this Act. Such regulations shall be prescribed after a notice and hearings in the
affected judicial districts of Alaska and as otherwise required by section 103 of the Marine Mammal Protection Act of
1972 [16 USCS § 1373], and shall be removed as soon as the Secretary determines that the need for their impositions
has disappeared.
(f) Pre-Act endangered species parts exemption; application and certification; regulation; validity of sales contract; separability of provisions; renewal of exemption; expiration of renewal certification.
(1) As used in this subsection-(A) The term "pre-Act endangered species part" means-(i) any sperm whale oil, including derivatives thereof, which was lawfully held within the United States on
December 28, 1973, in the course of a commercial activity; or
(ii) any finished scrimshaw product, if such product or the raw material for such product was lawfully held
within the United States on December 28, 1973, in the course of a commercial activity.
(B) The term "scrimshaw product" means any art form which involves the substantial etching or engraving of
designs upon, or the substantial carving of figures, patterns, or designs from, any bone or tooth of any marine mammal
of the order Cetacea. For purposes of this subsection, polishing or the adding of minor superficial markings does not
constitute substantial etching, engraving, or carving.
(2) The Secretary, pursuant to the provisions of this subsection, may exempt, if such exemption is not in violation of
the Convention, any pre-Act endangered species part from one or more of the following prohibitions:
(A) The prohibition on exportation from the United States set forth in section 9(a)(1)(A) of this Act [16 USCS §
1538(a)(1)(A)].
(B) Any prohibition set forth in section 9(a)(1)(E) or (F) of this Act [16 USCS § 1538(a)(1)(E), (F)].
(3) Any person seeking an exemption described in paragraph (2) of this subsection shall make application therefor to
the Secretary in such form and manner as he shall prescribe, but no such application may be considered by the Secretary
unless the application-(A) is received by the Secretary before the close of the one-year period beginning on the date on which regulations promulgated by the Secretary to carry out this subsection first take effect;
(B) contains a complete and detailed inventory of all pre-Act endangered species parts for which the applicant
seeks exemption;
(C) is accompanied by such documentation as the Secretary may require to prove that any endangered species part
or product claimed by the applicant to be a pre-Act endangered species part is in fact such a part; and
(D) contains such other information as the Secretary deems necessary and appropriate to carry out the purposes of
this subsection.
(4) If the Secretary approves any application for exemption made under this subsection, he shall issue to the applicant a certificate of exemption which shall specify-(A) any prohibition in section 9(a) of this Act [16 USCS § 1538(a)] which is exempted;
(B) the pre-Act endangered species parts to which the exemption applies;
(C) the period of time during which the exemption is in effect, but no exemption made under this subsection shall
have force and effect after the close of the three-year period beginning on the date of issuance of the certificate unless
such exemption is renewed under paragraph (8); and
(D) any term or condition prescribed pursuant to paragraph (5)(A) or (B), or both, which the Secretary deems
necessary or appropriate.
Page 166
16 USCS § 1539
(5) The Secretary shall prescribe such regulations as he deems necessary and appropriate to carry out the purposes of
this subsection. Such regulations may set forth-(A) terms and conditions which may be imposed on applicants for exemptions under this subsection (including,
but not limited to, requirements that applicants register inventories, keep complete sales records, permit duly authorized
agents of the Secretary to inspect such inventories and records, and periodically file appropriate reports with the Secretary); and
(B) terms and conditions which may be imposed on any subsequent purchaser of any pre-Act endangered species
part covered by an exemption granted under this subsection;
to insure that any such part so exempted is adequately accounted for and not disposed of contrary to the provisions of
this Act. No regulation prescribed by the Secretary to carry out the purposes of this subsection shall be subject to section
4(f)(2)(A)(i) of this Act.
(6) (A) Any contract for the sale of pre-Act endangered species parts which is entered into by the Administrator of
General Services prior to the effective date of this subsection and pursuant to the notice published in the Federal Register on January 9, 1973, shall not be rendered invalid by virtue of the fact that fulfillment of such contract may be prohibited under section 9(a)(1)(F) [16 USCS § 1538(a)(1)(F)].
(B) In the event that this paragraph is held invalid, the validity of the remainder of the Act, including the remainder of this subsection, shall not be affected.
(7) Nothing in this subsection shall be construed to-(A) exonerate any person from any act committed in violation of paragraphs (1)(A), (1)(E), or (1)(F) of section
9(a) [16 USCS § 1538(a)(1)(A), (E), (F)] prior to the date of enactment of this subsection [enacted July 12, 1976]; or
(B) immunize any person from prosecution for any such act.
(8) (A) [(i)] any valid certificate of exemption which was renewed after October 13, 1982, and was in effect on
March 31, 1988, shall be deemed to be renewed for a six-month period beginning on the date of enactment of the Endangered Species Act Amendments of 1988 [enacted Oct. 7, 1988]. Any person holding such a certificate may apply to
the Secretary for one additional renewal of such certificate for a period not to exceed 5 years beginning on the date of
such enactment [enacted Oct. 7, 1988].
(B) If the Secretary approves any application for renewal of an exemption under this paragraph, he shall issue to
the applicant a certificate of renewal of such exemption which shall provide that all terms, conditions, prohibitions, and
other regulations made applicable by the previous certificate shall remain in effect during the period of the renewal.
(C) No exemption or renewal of such exemption made under this subsection shall have force and effect after the
expiration date of the certificate of renewal of such exemption issued under this paragraph.
(D) 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 holds a valid certificate of exemption issued by the Secretary under this
subsection, and unless such product or the raw material for such product was held by such person on October 13, 1982.
(g) Burden of proof. In connection with any action alleging a violation of section 9 [16 USCS § 1538], any person
claiming the benefit of any exemption or permit under this Act shall have the burden of proving that the exemption or
permit is applicable, has been granted, and was valid and in force at the time of the alleged violation.
(h) Certain antique articles; importation; port designation; application for return of articles.
(1) Sections 4(d), 9(a), and 9(c) [16 USCS §§ 1533(d), 1538(a), (c)] do not apply to any article which-(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered species or threatened species listed under section 4 [16
USCS § 1533];
(C) has not been repaired or modified with any part of any such species on or after the date of the enactment of
this Act [enacted Dec. 28, 1973]; and
(D) is entered at a port designated under paragraph (3).
(2) Any person who wishes to import an article under the exception provided by this subsection shall submit to the
customs officer concerned at the time of entry of the article such documentation as the Secretary of the Treasury, after
consultation with the Secretary of the Interior, shall by regulation require as being necessary to establish that the article
meets the requirements set forth in paragraph (1)(A), (B), and (C).
(3) The Secretary of the Treasury, after consultation with the Secretary of the Interior, shall designate one port within
each customs region at which articles described in paragraph (1)(A), (B), and (C) must be entered into the customs territory of the United States.
Page 167
16 USCS § 1539
(4) Any person who imported, after December 27, 1973, and on or before the date of the enactment of the Endangered Species Act Amendments of 1978 [enacted Nov. 10, 1978], any article described in paragraph (1) which-(A) was not repaired or modified after the date of importation with any part of any endangered species or threatened species listed under section 4 [16 USCS § 1533];
(B) was forfeited to the United States before such date of the enactment [enacted Nov. 10, 1978], or is subject to
forfeiture to the United States on such date of enactment [enacted Nov. 10, 1978], pursuant to the assessment of a civil
penalty under section 11 [16 USCS § 1540]; and
(C) is in the custody of the United States on such date of enactment [enacted Nov. 10, 1978];
may, before the close of the one-year period beginning on such date of enactment [enacted Nov. 10, 1978], make
application to the Secretary for return of the article. Application shall be made in such form and manner, and contain
such documentation, as the Secretary prescribes. If on the basis of any such application which is timely filed, the Secretary is satisfied that the requirements of this paragraph are met with respect to the article concerned, the Secretary shall
return the article to the applicant and the importation of such article shall, on and after the date of return, be deemed to
be a lawful importation under this Act.
(i) Noncommercial transshipments. Any importation into the United States of fish or wildlife shall, if-(1) such fish or wildlife was lawfully taken and exported from the country of origin and country of reexport, if any;
(2) such fish or wildlife is in transit or transshipment through any place subject to the jurisdiction of the United
States en route to a country where such fish or wildlife may be lawfully imported and received;
(3) the exporter or owner of such fish or wildlife gave explicit instructions not to ship such fish or wildlife through
any place subject to the jurisdiction of the United States, or did all that could have reasonably been done to prevent
transshipment, and the circumstances leading to the transshipment were beyond the exporter's or owner's control;
(4) the applicable requirements of the Convention have been satisfied; and
(5) such importation is not made in the course of a commercial activity,
be an importation not in violation of any provision of this Act or any regulation issued pursuant to this Act while such
fish or wildlife remains in the control of the United States Customs Service.
(j) Experimental populations.
(1) For purposes of this subsection, the term "experimental population" means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such
times as, the population is wholly separate geographically from nonexperimental populations of the same species.
(2) (A) The Secretary may authorize the release (and the related transportation) of any population (including eggs,
propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if
the Secretary determines that such release will further the conservation of such species.
(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation
identify the population and determine, on the basis of the best available information, whether or not such population is
essential to the continued existence of an endangered species or a threatened species.
(C) For the purposes of this Act, each member of an experimental population shall be treated as a threatened species; except that-(i) solely for purposes of section 7 (other than subsection (a)(1) thereof) [16 USCS § 1536], an experimental
population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under section 4 [16 USCS § 1533]; and
(ii) critical habitat shall not be designated under this Act for any experimental population determined under
subparagraph (B) to be not essential to the continued existence of a species.
(3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before the date of the enactment of this subsection [enacted Oct. 13, 1982], for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experimental population for the purposes of this subsection and whether or not each is essential to the continued existence of
an endangered species or a threatened species.
HISTORY:
Page 168
16 USCS § 1539
(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).
Page 169
16 USCS § 1539
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
Page 170
16 USCS § 1539
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.
Page 171
16 USCS § 1539
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
1. Generally
Page 172
16 USCS § 1539
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),
Page 173
16 USCS § 1539
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.
Page 174
16 USCS § 1539
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).
6.----Applicability to native Hawaiians
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,
Page 175
16 USCS § 1539
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.
7. Rulemaking procedure
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.
Page 176
16 USCS § 1539
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
Page 177
16 USCS § 1539
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.
16 USCS § 1539(a)(2)(B) did not require incidental take permits to promote or even maintain recovery of listed
species, thus, No Surprises and Permit Revocation Rules, 50 C.F.R. § 17.22(b), 17.32(b), were in accordance with law
under 5 USCS § 706(a)(2)(A), and 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.
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.
Page 178
16 USCS § 1539
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
Page 179
16 USCS § 1539
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
§ 1540. Penalties and enforcement
(a) Civil penalties.
(1) Any person who knowingly violates, and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates, any provision of this Act, or any provision of any permit or certificate issued hereunder, or
any regulation issued in order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D),
(c), (d) (other than regulation relating to recordkeeping or filing of reports), (f) or (g) of section 9 of this Act [16 USCS
§ 1538(a)(1)(A), (B), (C), (D), (E), or (F), (2)(A), (B), (C), or (D), (c), (d), (f), or (g)], may be assessed a civil penalty
by the Secretary of not more than $ 25,000 for each violation. Any person who knowingly violates, and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates, any provision of any other regulation issued under this Act may be assessed a civil penalty by the Secretary of not more than $ 12,000 for each such violation. Any person who otherwise violates any provision of this Act, or any regulation, permit, or certificate issued
hereunder, may be assessed a civil penalty by the Secretary of not more than $ 500 for each such violation. No penalty
may be assessed under this subsection unless such person is given notice and opportunity for a hearing with respect to
such violation. Each violation shall be a separate offense. Any such civil penalty may be remitted or mitigated by the
Secretary. Upon any failure to pay a penalty assessed under this subsection, the Secretary may request the Attorney
General to institute a civil action in a district court of the United States for any district in which such person is found,
resides, or transacts business to collect the penalty and such court shall have jurisdiction to hear and decide any such
action. The court shall hear such action on the record made before the Secretary and shall sustain his action if it is supported by substantial evidence on the record considered as a whole.
(2) Hearings held during proceedings for the assessment of civil penalties authorized by paragraph (1) of this subsection shall be conducted in accordance with section 554 of title 5, United States Code [5 USCS § 554]. The Secretary
may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and
documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person
pursuant to this paragraph, the district court of the United States for any district in which such person is found or resides
or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to
issue an order requiring such person to appear and give testimony before the Secretary or to appear and produce documents before the Secretary, or both, and any failure to obey such order of the court may be punished by such court as a
contempt thereof.
Page 180
16 USCS § 1540
(3) Notwithstanding any other provision of this Act, no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an act based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual from bodily harm, from any endangered or
threatened species.
(b) Criminal violations.
(1) Any person who knowingly violates any provision of this Act, of any permit or certificate issued hereunder, or of
any regulation issued in order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F); (a)(2)(A), (B), (C), or (D),
(c), (d) (other than a regulation relating to recordkeeping, or filing of reports), (f), or (g) of section 9 of this Act [16
USCS § 1538(a)(1)(A), (B), (C), (D), (E), or (F), (2)(A), (B), (C), or (D), (c), (d), (f), or (g)] shall, upon conviction, be
fined not more than $ 50,000 or imprisoned for not more than one year, or both. Any person who knowingly violates
any provision of any other regulation issued under this Act shall, upon conviction, be fined not more than $ 25,000 or
imprisoned for not more than six months, or both.
(2) The head of any Federal agency which has issued a lease, license, permit, or other agreement authorizing a person
to import or export fish, wildlife, or plants, or to operate a quarantine station for imported wildlife, or authorizing the
use of Federal lands, including grazing of domestic livestock, to any person who is convicted of a criminal violation of
this Act or any regulation, permit, or certificate issued hereunder may immediately modify, suspend, or revoke each
lease, license, permit, or other agreement. The Secretary shall also suspend for a period of up to one year, or cancel, any
Federal hunting or fishing permits or stamps issued to any person who is convicted of a criminal violation of any provision of this Act or any regulation, permit, or certificate issued hereunder. The United States shall not be liable for the
payments of any compensation, reimbursement, or damages in connection with the modification, suspension, or revocation of any leases, licenses, permits, stamps, or other agreements pursuant to this section.
(3) Notwithstanding any other provision of this Act, it shall be a defense to prosecution under this subsection if the
defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member
of his or her family, or any other individual, from bodily harm from any endangered or threatened species.
(c) District court jurisdiction. The several district courts of the United States, including the courts enumerated in section 460 of title 28, United States Code [28 USCS § 460], shall have jurisdiction over any actions arising under this Act.
For the purpose of this Act, American Samoa shall be included within the judicial district of the District Court of the
United States for the District of Hawaii.
(d) Rewards and certain incidental expenses. The Secretary or the Secretary of the Treasury shall pay, from sums received as penalties, fines, or forfeitures of property for any violation of this Act or any regulation issued hereunder (1) a
reward to any person who furnishes information which leads to an arrest, a criminal conviction, civil penalty assessment, or forfeiture of property for any violation of this Act or any regulation issued hereunder, and (2) the reasonable
and necessary costs incurred by any person in providing temporary care for any fish, wildlife, or plant pending the disposition of any civil or criminal proceeding alleging a violation of this Act with respect to that fish, wildlife, or plant.
The amount of the reward, if any, is to be designated by the Secretary or the Secretary of the Treasury, as appropriate.
Any officer or employee of the United States or any State or local government who furnishes information or renders
service in the performance of his official duties is ineligible for payment under this subsection. Whenever the balance of
sums received under this section and section 6(d) of the Act of November 16, 1981 (16 U.S.C. 3375(d)), as penalties or
fines, or from forfeitures of property, exceed $ 500,000, the Secretary of the Treasury shall deposit an amount equal to
such excess balance in the cooperative endangered species conservation fund established under section 6(i) of this Act
[16 USCS § 1535(i)].
(e) Enforcement.
(1) The provisions of this Act and any regulations or permits issued pursuant thereto shall be enforced by the Secretary, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating, or all such
Secretaries. Each such Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and
facilities of any other Federal agency or any State agency for purposes of enforcing this Act.
(2) The judges of the district courts of the United States and the United States magistrates [magistrate judges] may,
within their respective jurisdictions, upon proper oath or affirmation showing probable cause, issue such warrants or
other process as may be required for enforcement of this Act and any regulation issued thereunder.
(3) Any person authorized by the Secretary, the Secretary of the Treasury, or the Secretary of the Department in
which the Coast Guard is operating, to enforce this Act may detain for inspection and inspect any package, crate, or
Page 181
16 USCS § 1540
other container, including its contents, and all accompanying documents, upon importation or exportation. Such person
may make arrests without a warrant for any violation of this Act if he has reasonable grounds to believe that the person
to be arrested is committing the violation in his presence or view, and may execute and serve any arrest warrant, search
warrant, or other warrant or civil or criminal process issued by any officer or court of competent jurisdiction for enforcement of this Act. Such person so authorized may search and seize, with or without a warrant, as authorized by law.
Any fish, wildlife, property, or item so seized shall be held by any person authorized by the Secretary, the Secretary of
the Treasury, or the Secretary of the Department in which the Coast Guard is operating pending disposition of civil or
criminal proceedings, or the institution of an action in rem for forfeiture of such fish, wildlife, property, or item pursuant
to paragraph (4) of this subsection; except that the Secretary may, in lieu of holding such fish, wildlife, property, or
item, permit the owner or consignee to post a bond or other surety satisfactory to the Secretary, but upon forfeiture of
any such property to the United States, or the abandonment or waiver of any claim to any such property, it shall be disposed of (other than by sale to the general public) by the Secretary in such a manner, consistent with the purposes of this
Act, as the Secretary shall by regulation prescribe.
(4) (A) All fish or wildlife or plants taken, possessed, sold, purchased, offered for sale or purchase, transported, delivered, received, carried, shipped, exported, or imported contrary to the provisions of this Act, any regulation made
pursuant thereto, or any permit or certificate issued hereunder shall be subject to forfeiture to the United States.
(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other means of transportation used to
aid the taking, possessing, selling, purchasing, offering for sale or purchase, transporting, delivering, receiving, carrying, shipping, exporting, or importing of any fish or wildlife or plants in violation of this Act, any regulation made pursuant thereto, or any permit or certificate issued thereunder shall be subject to forfeiture to the United States upon conviction of a criminal violation pursuant to section 11(b)(1) of this Act [subsec. (b)(1) of this section].
(5) All provisions of law relating to the seizure, forfeiture, and condemnation of a vessel for violation of the customs
laws, the disposition of such vessel or the proceeds from the sale thereof, and the remission or mitigation of such forfeiture, shall apply to the seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this
Act, insofar as such provisions of law are applicable and not inconsistent with the provisions of this Act; except that all
powers, rights, and duties conferred or imposed by the customs laws upon any officer or employee of the Treasury Department shall, for the purposes of this Act, be exercised or performed by the Secretary or by such persons as he may
designate.
(6) The Attorney General of the United States may seek to enjoin any person who is alleged to be in violation of any
provision of this Act or regulation issued under authority thereof.
(f) Regulations. The Secretary, the Secretary of the Treasury, and the Secretary of the Department in which the Coast
Guard is operating, are authorized to promulgate such regulations as may be appropriate to enforce this Act, and charge
reasonable fees for expenses to the Government connected with permits or certificates authorized by this Act including
processing applications and reasonable inspections, and with the transfer, board, handling, or storage of fish or wildlife
or plants and evidentiary items seized and forfeited under this Act. All such fees collected pursuant to this subsection
shall be deposited in the Treasury to the credit of the appropriation which is current and chargeable for the cost of furnishing the services. Appropriated funds may be expended pending reimbursement from parties in interest.
(g) Citizen suits.
(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf-(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to
the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision
of this Act or regulation issued under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section 6(g)(2)(B)(ii) of this Act [16 USCS § 1535(g)(2)(B)(ii)],
the prohibitions set forth in or authorized pursuant to section 4(d) or section 9(a)(1)(B) of this Act [16 USCS §§
1533(d), 1538(a)(1)(B)] with respect to the taking of any resident endangered species or threatened species within any
State; or
(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section
4 [16 USCS § 1533] which is not discretionary with the Secretary.
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may
be. In any civil suit commenced under subparagraph (B) the district court shall compel the Secretary to apply the prohibition sought if the court finds that the allegation that an emergency exists is supported by substantial evidence.
(2) (A) No action may be commenced under subparagraph (1)(A) of this section--
Page 182
16 USCS § 1540
(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged
violator of any such provision or regulation;
(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this section; or
(iii) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United
States or a State to redress a violation of any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of this section-(i) prior to sixty days after written notice has been given to the Secretary setting forth the reasons why an
emergency is thought to exist with respect to an endangered species or a threatened species in the State concerned; or
(ii) if the Secretary has commenced and is diligently prosecuting action under section 6(g)(2)(B)(ii) of this Act
[16 USCS § 1535(g)(2)(B)(ii)] to determine whether any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of this section prior to sixty days after written notice has been given to the Secretary; except that such action may be brought immediately after such notification in the
case of an action under this section respecting an emergency posing a significant risk to the well-being of any species of
fish or wildlife or plants.
(3) (A) Any suit under this subsection may be brought in the judicial district in which the violation occurs.
(B) In any such suit under this subsection in which the United States is not a party, the Attorney General, at the
request of the Secretary, may intervene on behalf of the United States as a matter of right.
(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award
costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines
such award is appropriate.
(5) The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons)
may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief
(including relief against the Secretary or a State agency).
(h) Coordination with other laws. The Secretary of Agriculture and the Secretary shall provide for appropriate coordination of the administration of this Act with the administration of the animal quarantine laws (as defined in section
2509(f) of the Food, Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 136a(f)) and section 306 of the Tariff
Act of 1930 (19 U.S.C. 1306). Nothing in this Act or any amendment made by this Act shall be construed as superseding or limiting in any manner the functions of the Secretary of Agriculture under any other law relating to prohibited or
restricted importations or possession of animals and other articles and no proceeding or determination under this Act
shall preclude any proceeding or be considered determinative of any issue of fact or law in any proceeding under any
Act administered by the Secretary of Agriculture. Nothing in this Act shall be construed as superseding or limiting in
any manner the functions and responsibilities of the Secretary of the Treasury under the Tariff Act of 1930, including,
without limitation, section 527 of that Act (19 U.S.C. 1527), relating to the importation of wildlife taken, killed, possessed, or exported to the United States in violation of the laws or regulations of a foreign country.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 11, 87 Stat. 897; July 12, 1976, P.L. 94-359, § 4, 90 Stat. 913; Nov. 10, 1978, P.L.
95-632, §§ 6-8, 92 Stat. 3761; Nov. 16, 1981, P.L. 97-79, § 9(e), 95 Stat. 1079; Oct. 13, 1982, P.L. 97-304, §§ 7, 9(c),
96 Stat. 1425, 1427; June 25, 1984, P.L. 98-327, § 4, in part, 98 Stat. 271; Oct. 7, 1988, P.L. 100-478, Title I, § 1007,
102 Stat. 2309; May 13, 2002, P.L. 107-171, Title X, Subtitle E, § 10418(b)(3), 116 Stat. 508.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This Act", referred to in this section, is Act Dec. 28, 1973, P.L. 93-205, which appears generally as 16 USCS §§
1531 et seq. For full classification of such Act, consult USCS Tables volumes.
The "customs laws", referred to in this section, appear generally as 19 USCS §§ 1 et seq.
"Any amendment made by this Act", referred to in this section, is a reference to the amendments made by Act Dec.
28, 1973, P.L. 93-205. For full classification of such Act, consult USCS Tables volumes.
The "Tariff Act of 1930", referred to in subsec. (h), is Act June 17, 1930, Ch 497, 46 Stat. 590, which appears generally as 19 USCS §§ 1202 et seq. Section 306 of such Act was repealed by Act May 13, 2002, P.L. 107-171, Title X, §
10418(a)(5), 116 Stat. 507. For full classification of such Act, consult USCS Tables volumes.
Page 183
16 USCS § 1540
Explanatory notes:
The bracketed words "magistrate judges" were inserted in subsec. (e)(2) on the authority of Act Dec. 1, 1990, P.L.
101-650, Title III, § 321, which appears as 28 USCS § 631 note.
Effective date of section:
This section became effective on enactment, pursuant to § 16 of Act Dec. 28, 1973, P.L. 93-205, which appears as 16
USCS § 1531 note.
Amendments:
1976. Act July 12, 1976, in subsec. (e)(3), inserted "make arrests without a warrant for any violation of this Act if he
has reasonable grounds to believe that the person to be arrested is committing the violation in his presence or view, and
may" and ", but upon forfeiture of any such property to the United States, or the abandonment or waiver of any claim to
any such property, it shall be disposed of (other than by sale to the general public) by the Secretary in such a manner,
consistent with the purposes of this Act, as the Secretary shall by regulation prescribe".
1978. Act Nov. 10, 1978, in subsec. (a), substituted "and any person engaged in business as an importer or exporter of
fish, wildlife, or plants who violates" for "or who knowingly commits an act in the course of a commercial activity
which violates" wherever appearing, substituted "$ 500" for "$ 1,000", and added para. (3); in subsec. (b), in para. (1),
substituted "knowingly" for "willfully commits an act which" wherever appearing, in para. (2), inserted "a person to
import or export fish, wildlife, or plants, or to operate a quarantine station for imported wildlife, or authorizing", and
added para. (3).
1981. Act Nov. 16, 1981 (effective as provided by § 9(f) of such Act, which appears as a note to this section), substituted subsec. (d) for one which read: "Upon the recommendation of the Secretary, the Secretary of the Treasury is authorized to pay an amount equal to one-half of the civil penalty or fine paid, but not to exceed $ 2,500, to any person who
furnishes information which leads to a finding of civil violation or a conviction of a criminal violation of any provision
of this Act or any regulation or permit issued thereunder. Any officer or employee of the United States or of any State or
local government who furnishes information or renders service in the performance of his official duties shall not be eligible for payment under this section.".
1982. Act Oct. 13, 1982, in subsec. (a)(1), substituted "(C), or (D)" for "or (C)" following "(a)(2)(A), (B),"; in subsec.
(b)(1), substituted "(C), or (D)" for "or (C)" following "(a)(2)(A), (B),"; in subsec. (e), added para. (6); in subsec. (g), in
para. (1), in subpara. (B), substituted "any State; or" for "any State.", added subpara. (C), and in the concluding matter,
inserted "or to order the Secretary to perform such act or duty,", and in para. (2), added para. (C).
1984. Act June 25, 1984, in subsec. (d), substituted a comma for "a reward" following "shall pay", inserted "(1) a reward", and inserted ", and (2) the reasonable and necessary costs incurred by any person in providing temporary care for
any fish, wildlife, or plant pending the disposition of any civil or criminal proceeding alleging a violation of this Act
with respect to that fish, wildlife, or plant".
Page 184
16 USCS § 1540
1988. Act Oct. 7, 1988, in subsec. (a)(1), substituted "$ 25,000" for "$ 10,000" and "$ 12,000" for "$ 5,000"; in subsec.
(b)(1), substituted "$ 50,000" for "$ 20,000" and "$ 25,000" for "$ 10,000"; and, in subsec. (d), added the sentence beginning "Whenever the balance of sums . . . .".
2002. Act May 13, 2002, in subsec. (h), substituted "animal quarantine laws (as defined in section 2509(f) of the Food,
Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 136a(f))" for "animal quarantine laws (21 U.S.C. 101-105,
111-135b, and 612-614)".
Transfer of functions:
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of
related references, see 6 USCS §§ 468(b), 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.
For transfer of functions of the Secretary of Agriculture relating to agricultural import and entry inspection activities
under this section to the Secretary of Homeland Security, and for treatment of related references, see 6 USCS §§ 231,
551(d), 552(d), and 557, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as
modified, which appears as 6 USCS § 542 note.
Other provisions:
Effective date and application of amendment to subsec. (d) by Act Nov. 16, 1981. Act Nov. 16, 1981, P.L. 97-79,
§ 9(f), 95 Stat. 1080, provided: "The amendment specified in subsection 9(e) of this Act [amending subsec. (d) of this
section] shall take effect beginning in fiscal year 1983.".
NOTES:
Code of Federal Regulations:
Office of the Secretary of Agriculture--Administrative regulations, 7 CFR 1.1 et seq.
Animal and Plant Health Inspection Service, Department of Agriculture--Endangered species regulations concerning
terrestrial plants, 7 CFR 355.1 et seq.
Animal and Plant Health Inspection Service, Department of Agriculture--Forfeiture procedures, 7 CFR 356.1 et seq.
Animal and Plant Health Inspection Service, Department of Agriculture--Rules of practice governing proceedings
under certain acts, 7 CFR 380.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Civil procedures, 50 CFR 11.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Seizure and forfeiture procedures, 50 CFR 12.1
et seq.
United States Fish and Wildlife Service, Department of the Interior--General permit procedures, 50 CFR 13.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Importation, exportation, and transportation of
wildlife, 50 CFR 14.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Endangered and threatened wildlife and plants,
50 CFR 17.1 et seq.
United States Fish and Wildlife Service, Department of the Interior--Importation and exportation of plants, 50 CFR
24.1 et seq.
Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce--Fisheries of the Exclusive Economic Zone off Alaska, 50 CFR 679.1 et seq.
Related Statutes & Rules:
Sentencing Guidelines for the United States Courts, 18 USCS Appx § 2Q2.1.
Page 185
16 USCS § 1540
This section is referred to in 6 USCS § 231; 16 USCS §§ 742l, 1536, 1539, 4224, 5305a; 28 USCS § 524; 42 USCS §
10601.
Research Guide:
Federal Procedure:
10 Moore's Federal Practice (Matthew Bender 3d ed.), ch 54, Judgment; Costs § 54.171.
6 Administrative Law (Matthew Bender), ch 50, Standing § 50.04.
4 Fed Proc L Ed, Aviation and Space § 7:921.
8 Fed Proc L Ed, Courts and Judicial System § 20:444.
11 Fed Proc L Ed, Environmental Protection §§ 32:117, 119, 125.
12B Fed Proc L Ed, Farms, Ranches, and Agricultural Products §§ 34:1, 126.
24A Fed Proc L Ed, Natural and Marine Resources §§ 56:2074, 2105, 2132, 2153-2159, 2164, 2165, 2176, 2200,
2215, 2336.
25 Fed Proc L Ed, Parties § 59:3.
Am Jur:
35A Am Jur 2d, Fish, Game, and Wildlife Conservation §§ 69-71.
67 Am Jur 2d, Rewards § 7.
Am Jur Proof of Facts:
35 Am Jur Proof of Facts 3d, Proof of Standing in Environmental Citizen Suits, p. 493.
86 Am Jur Proof of Facts 3d, Citizen Suit for Injunctive Relief Pending Federal Agency's Compliance with National
Environmental Policy Act, p. 99.
89 Am Jur Proof of Facts 3d, Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act, p. 125.
Forms:
10B Fed Procedural Forms L Ed, Highways and Bridges (2006) § 38:17.
13 Fed Procedural Forms L Ed, Natural and Mineral Resources (2005) §§ 50:209, 211, 212, 214.
12 Am Jur Pl & Pr Forms (2008), Fish and Game, § 30.
13A Am Jur Pl & Pr Forms (2009), Highways, Streets, and Bridges, § 219.
19C Am Jur Pl & Pr Forms (2007), Pollution Control, § 157.
Annotations:
Criminal prosecution under Endangered Species Act of 1973 (16 USCS §§ 1531-1543). 128 ALR Fed 271.
Attorney's Fees Under § 11(g)(4) of Endangered Species Act (16 U.S.C.A. § 1540(g)(4) [16 USCS 1540(g)(4)]).
171 ALR Fed 419.
Texts:
1 Environmental Law Practice Guide (Matthew Bender), ch 4, Information Disclosure and Access § 4.02.
2A Environmental Law Practice Guide (Matthew Bender), ch 12A, Citizen Suits §§ 12A.04, 12A.05, 12A.09.
Page 186
16 USCS § 1540
2A Environmental Law Practice Guide (Matthew Bender), ch 12C, Criminal Enforcement §§ 12C.02, 12C.03,
12C.05, 12C.08.
2A Environmental Law Practice Guide (Matthew Bender), ch 13, Attorneys' Fees and Conflicts of Interest § 13.01.
4 Environmental Law Practice Guide (Matthew Bender), ch 24, Wildlife and Habitat Protection § 24.03.
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.
Law Review Articles:
The Extraterritorial Application of Section 7 of the Endangered Species Act. 13 Colum J Envt'l L 129, 1987.
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
Johnson. Private Plaintiffs, Public Rights: Article II and Environmental Citizen Suits. 49 Kan L Rev 383, January
2001.
Arnold. Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use
development. 10 Stan Envtl L J 1, 1991.
Craig. Will Separation of Powers Challenges "Take Care" of Environmental Citizen Suits? Article II, Injury-in-Fact,
Private "Enforcers," and Lessons From Qui Tam Litigation. 72 U Colo L Rev 93, Winter 2001.
May. Now More Than Ever: Trends in Environmental Citizen Suits at 30. 10 Wid L Symp J 1, 2003.
Parenteau. Citizen Suits under the Endangered Species Act: Survival of the Fittest. 10 Widener L Rev 321, 2004.
Interpretive Notes and Decisions:
I.IN GENERAL 1. Civil penalties 2.--Particular circumstances 3. Criminal violations 4.--Elements of offense
5.--Sentence 6. Enforcement 7.--Evidence 8.--Seizure 9.--Forfeiture 10. Promulgation of regulations 11. Miscellaneous
II.CITIZEN SUITS 12. Jurisdiction 13.--Notice requirements 14.----Requirements not applicable 15.----Violation
of requirement 16. Standing 17.--Environmental groups 18.--Trade associations 19. Intervention 20. Ripeness 21. Complaint 22. Injunctions 23. Scope and standard of review 24. Costs 25. Attorney fees 26.--Particular circumstances
I.IN GENERAL 1. Civil penalties
16 USCS § 1540(a)(1) does not impose strict liability upon commercial operators for totally innocent conduct;
however, commercial operators are held to higher standard of conduct and will be liable for civil penalties if they knew
or should have known that particular species was endangered. Newell v Baldridge (1982, WD Wash) 548 F Supp 39,
13 ELR 20476.
Penalty assessed in notice of violation and assessment is presumed appropriate and ALJ must show good reason for
adjustment. Paul J. von Hartmann (1991, NOAA App) 6 ORW 576.
When alleged violator asserts that recommended penalty should be reduced or rescinded because of inability to pay,
he bears burden of proving such inability by providing verifiable, complete and accurate financial information to NOAA. Darren J. Plaisance (1992, NOAA App) 6 ORW 654.
2.--Particular circumstances
Appeals board did not err in assessing $ 12,000 penalty against commercial operator who shipped 3 endangered
turtles in violation of § 1540(a)(1). Newell v Baldridge (1982, WD Wash) 548 F Supp 39, 13 ELR 20476.
ALJ abused his discretion by assessing penalty of $ 6,000 in proceeding involving violation of 50 CFR § 222.31,
which prohibits boats from approaching humpback whales in waters designated as cow/calf waters, where penalty assessed in notice of violation and assessment (NOVA) was only $ 400.00, and ALJ did not provide in his initial decision
adequate justification for such profound increase. Paul J. von Hartmann (1991, NOAA App) 6 ORW 576.
In civil penalty proceeding involving individual who violated 16 USCS § 1538(a)(1)(F) by selling in interstate
commerce, for commercial purpose, live captive-bred snow leopard, ALJ improperly increased penalty assessed by
FWS from $ 7,000 to $ 15,000, based on aggravating circumstances (individual's experience in field, his attempt to cir-
Page 187
16 USCS § 1540
cumvent law by creating false documents, and his lack of remorse), because penalty assessed by agency is presumed
appropriate and ALJ did not show good cause for adjustment; aggravating circumstances cited by ALJ were all apparent
to FWS when it assessed penalty, so that they could not constitute good cause for adjustment. Fish and Wildlife Service v Tatum (1993, FWS App) 7 ORW 220.
Given circumstances of case, civil penalty of $ 700 was appropriate with respect to kayaker who violated Federal
regulations by approaching within 100 yards of humpback whale. In the Matter of: Jorge Rundle, Respondent (NOAA,
June 9, 2009) 2009 NOAA LEXIS 13.
Individual who unlawfully approached humpback whale within 100 yards in water for purpose of taking video that
he intended to sell was subject to $ 1000 penalty as first time offender, where he was more hobbyist than commercial
operator, and evidence did not establish that he willfully ignored instructions to get out of water or that he was responsible for second individual's boat approaching within 100 yards. In the Matter of: Porter Watson, Respondent (NOAA,
July 21, 2010) 2010 NOAA LEXIS 8.
3. Criminal violations
Hawaiian native cannot plead abrogation of treaty in defense of prosecution under 16 USCS § 1538 where no evidence shows treaty giving Hawaiians right to hunt green sea turtles or monk seals, nor that they are traditional aspect of
native Hawaiian life. United States v Nuesca (1991, CA9 Hawaii) 945 F2d 254, 91 CDOS 7480, 91 Daily Journal
DAR 11459, 34 Envt Rep Cas 1394.
Regulations regarding importation of banned goods, pursuant to which defendant was convicted of violating "contrary to law" provision of 18 USCS § 545, were promulgated pursuant to statutes, including 16 USCS § 1540, that contain express grant of authority to Secretary of Interior to promulgate such regulations as may be appropriate; regulations
affect individual rights and obligations and are promulgated pursuant to congressional grant of authority and are therefore substantive rules having force and effect of law. United States v Mitchell (1994, CA4 Va) 39 F3d 465, cert den
(1995) 515 US 1142, 132 L Ed 2d 828, 115 S Ct 2578.
Defendant charged with misdemeanor of knowingly taking grizzly bear under 16 USCS §§ 1538(a)(1) and
1540(b)(1) is not entitled to bill of particular nor protective order against U.S. States Marshal Service, because (1) language of existing information adequately apprises defendant of offense with which he is charged, making amendment to
allege separate crimes for wounding and killing of bear unnecessary, and (2) marshals' administrative function of obtaining information from defendant during or following arraignment is proper, but no fingerprints or photographs shall
be taken except by further court order. United States v St. Onge (1987, DC Mont) 676 F Supp 1041.
Rancher, who was searching for grizzly bear he may have wounded previous night, was not aggressor in confrontation with bear who charged at him and so was not precluded from asserting self-defense exception, under 16 USCS §
1540(a)(3), to liability for killing bear, where rancher did not provoke bear and was in imminent danger when he shot
bear. Shuler v Babbitt (1998, DC Mont) 49 F Supp 2d 1165.
4.--Elements of offense
To sustain conviction under 16 USCS § 1540, it is sufficient that defendant knew he was in possession of turtle;
government is not required to prove that defendant knew turtle to be threatened species or that it is illegal to transport or
import it. United States v Oanh Vu Nguyen (1990, CA5 Tex) 916 F2d 1016, 21 ELR 20486.
Indian tribe member committed "knowing" violation of Endangered Species Act (16 USCS §§ 1531 et seq.) by taking and possessing Florida panther on reservation, because knowing violation only requires proof of general intent and
member need not have known Act applied to hunting endangered species on reservation. United States v Billie (1987,
SD Fla) 667 F Supp 1485, 18 ELR 20209.
In order to convict defendant for illegally taking grizzly bear under Endangered Species Act of 1973 (16 USCS §§
1538(a)(1) and 1540(b)(1)), government must prove (1) that defendant knowingly took animal within United States, (2)
that animal was grizzly bear, and (3) that defendant did not have permission to take bear; government need not prove
that defendant knew he was shooting grizzly bear when he pulled trigger. United States v St. Onge (1988, DC Mont)
676 F Supp 1044, 18 ELR 20733.
5.--Sentence
Page 188
16 USCS § 1540
4-level upward adjustment under sentencing guidelines for offense of capturing endangered species, is proper in
view of court's finding that one Kemp's Ridley female sea turtle is "substantial" in relation to total population of sea
turtles. United States v Tran (1992, CA5 Tex) 955 F2d 288, cert den (1992) 506 US 842, 121 L Ed 2d 82, 113 S Ct
127.
District Court improperly applied 4-level enhancement of Sentencing Guidelines to defendants convicted of importing baby crocodiles where no evidence was presented showing that 39 African Dwarf crocodiles or 8 Nile crocodiles were substantial in relation to overall populations of species or to discrete subpopulations of species. United
States v Stubbs (1993, CA6 Ohio) 11 F3d 632, 37 Envt Rep Cas 2096, 24 ELR 20245 (criticized in United States v
Mansoori (2002, CA7 Ill) 304 F3d 635, 59 Fed Rules Evid Serv 1109).
Defendant's agreed fine of $ 150,000 under plea agreement for violations of Lacey Act, Marine Mammal Protection
Act, and Endangered Species Act did not exceed statutory maximum, as total maximum fine was $ 400,000; 18 USCS §
3571 implicitly repealed maximum fines under Lacey Act and Marine Mammal Protection Act, 16 USCS §§
3373(d)(1)(B) and 1375(b), and replaced them with maximum fines of $ 250,000 and $ 100,000 respectively; however,
amendment to 16 USCS § 1540(b)(1) increasing maximum fine to $ 50,000 controlled over requirement under 18 USCS
§ 3571(e) that lower fines be specifically exempted from § 3571. United States v Eisenberg (2007, ED Pa) 496 F Supp
2d 578.
6. Enforcement
District court properly dismissed action filed under 16 USCS § 1540(g)(1)(C), part of Endangered Species Act
(ESA), 16 USCS §§ 1531 et seq., which was filed by environmental groups alleging that Secretary of Interior violated
nondiscretionary duty under 16 USCS § 1533(b)(6)(A), (C)(ii) to designate critical habitat for two threatened species of
minnows--Blue Shiner and Goldline Darter; suit was untimely under 28 USCS § 2401(a)'s six-year statute of limitations, and Secretary's failure to designate critical habitat did not constitute continuing violation of ESA. Ctr. for Biological Diversity v Hamilton (2006, CA11 Ga) 453 F3d 1331, 62 Envt Rep Cas 1641, 19 FLW Fed C 701 (criticized in Inst.
for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 66 Envt Rep Cas 1620) and (criticized in Sierra
Club v Johnson (2009, ND Cal) 69 Envt Rep Cas 1919, 39 ELR 20051).
Claim brought by non-profit organizations dedicated to protection of wild fishes under § 9 of Endangered Species
Act of 1973 (ESA), 16 USCS § 1538, was properly dismissed for lack of subject matter jurisdiction because statute
made clear discretionary nature of defendants' enforcement powers; citizen suit provisions under § 11(g)(1)(A) of ESA,
16 USCS § 1540(g)(1)(A), also did not provide independent jurisdiction to challenge federal agency's implementation of
ESA. 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) 2008 US App LEXIS
25358, 30 BNA Intl Trade Rep 1873, 39 ELR 20304.
16 USCS § 1540(g)(1)(A) did not provide any independent jurisdiction for nonprofit environmental organizations to
challenge decision of several federal agencies and officials regarding implementation or enforcement of Endangered
Species Act's ban on importation of endangered species. Salmon Spawning & Recovery Alliance v United States Customs & Border Prot. (2008, CA FC) 550 F3d 1121, 68 Envt Rep Cas 1041, 30 BNA Intl Trade Rep 1865, 39 ELR
20304.
Tenth Amendment does not restrict enforcement of Endangered Species Act (16 USCS §§ 1531 et seq.) because of
powers of Congress to enact legislation implementing valid treaties and to regulate commerce; having bound itself under its own law to refrain from "taking" federally-designated endangered species, having sought to secure financial advantages under Endangered Species Act, and having sought to retain managerial control over resident wildlife subject to
provisions of Act, state impliedly consented to be sued under Act. Palila v Hawaii Dep't of Land & Natural Resources
(1979, DC Hawaii) 471 F Supp 985, 14 Envt Rep Cas 1204, 9 ELR 20426, affd (1981, CA9 Hawaii) 639 F2d 495, 15
Envt Rep Cas 1741, 11 ELR 20446.
In issuing biological opinion (BO), defendant U.S. Fish and Wildlife Service was consulting agency, not action
agency, and cannot be held responsible for "maladministration" of its BO; thus, plaintiff Indian Tribe's claim under § 9
of Endangered Species Act, 16 USCS §§ 1538(a)(1)(B), 1540(g)(1)(A), failed. Miccosukee Tribe of Indians v United
States (2006, SD Fla) 430 F Supp 2d 1328, 19 FLW Fed D 833, motions ruled upon (2007, SD Fla) 2007 US Dist LEXIS 32612, summary judgment gr, motion den, as moot (2007, SD Fla) 528 F Supp 2d 1317, affd in part and revd in part
on other grounds, remanded (2009, CA11 Fla) 566 F3d 1257, 68 Envt Rep Cas 1929, 39 ELR 20097, 21 FLW Fed C
1780.
Page 189
16 USCS § 1540
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.
7.--Evidence
Government did not prove beyond reasonable doubt that falcons defendant transported were anatum peregrine falcons, which are endangered species, where witness conceded that he could not make conclusive identification on bird's
features, and thus, conviction under Endangered Species Act, 16 USCS §§ 1538(a)(1)(E) and 1540(b)(1), for purchase
and transport of anatum peregrine falcons, could not be sustained. United States v Doyle (1986, CA9 Mont) 786 F2d
1440, 16 ELR 20519, cert den (1986) 479 US 984, 93 L Ed 2d 576, 107 S Ct 572.
Endangered Species Act (16 USCS §§ 1531 et seq.) and National Oceanic Atmospheric Administration (NOAA)
regulations do not shift burden of proof for establishing failure to use turtle excluder device while shrimping, in violation of Act, and burden remains on government; thus, district court erred in granting summary judgment against
shrimpers where only evidence before ALJ was NOAA's Notice of Violation and Assessment, which is unsworn document containing only factual allegation of charged crime. United States v Menendez (1995, CA5 La) 48 F3d 1401, 40
Envt Rep Cas 1629, 32 FR Serv 3d 301, 25 ELR 20938, on remand, summary judgment gr sub nom United States v
Dung Van Nguyen (1995, ED La) 1995 US Dist LEXIS 17146.
Use of hearsay evidence during hearing in civil penalty proceeding, and ALJ's reliance upon such evidence, does
not violate due process rights of one charged with violating Act; strict rules of evidence do not apply in administrative
context, and hearsay evidence is admissible in administrative hearings. Fish and Wildlife Service v Tatum (1993, FWS
App) 7 ORW 220.
8.--Seizure
Endangered fish or wildlife imported pursuant to exemption permit issued under former Endangered Species Act of
1969, if held in course of commercial activity on date of enactment of Endangered Species Act of 1973 (16 USCS §§
1531 et seq.), was subject to all provisions of 1973 Act, including seizure pursuant to enforcement provisions contained
in 16 USCS § 1540(e). Delbay Pharmaceuticals, Inc. v Department of Commerce (1976, DC Dist Col) 409 F Supp
637, 6 ELR 20211.
Government's motion for summary judgment was granted on several consignees' action seeking declaratory and injunctive relief to compel immediate delivery to them of their shipments of bigleaf mahogany lumber, where consignees
argued that each shipment was accurately reflected in accompanying export permit duly issued and signed by Brazil's
management authority, and that neither United States Fish and Wildlife Service (FWS) nor Animal and Plant Health
Inspection Service (APHIS) was empowered to go behind export permit to verify what it purported to certify, namely
that lumber was lawfully obtained in country of origin; government agencies' seizure, holding, and effectively expropriating shipments was lawful under Convention on International Trade in Endangered Species and Endangered Species
Act of 1973, 16 USCS §§ 1531 1544, specifically 16 USCS § 1540(e)(4)(A). Castlewood Prods. v Norton (2003, DC
Dist Col) 264 F Supp 2d 9, 56 Envt Rep Cas 2049, affd (2004, App DC) 361 US App DC 151, 365 F3d 1076, 58 Envt
Rep Cas 1353, 26 BNA Intl Trade Rep 2145.
9.--Forfeiture
Forfeiture under 16 USCS § 1540 does not constitute taking without just compensation violative of due process
clause of Fifth Amendment, because Act does not prevent all sales of endangered wildlife, but only those sales in interstate or foreign commerce, and even these sales are permitted if Secretary of Interior approves them for scientific purposes or to enhance propagation or survival of affected species. United States v Kepler (1976, CA6 Ky) 531 F2d 796, 6
ELR 20340.
Given similarity in language and purpose between attorney's fees provisions of Civil Rights Act and Endangered
Species Act, court is mandated to apply Civil Rights standards for awarding fees to prevailing defendants in ESA cases.
Marbled Murrelet v Babbitt (1999, CA9 Cal) 182 F3d 1091, 99 CDOS 5408, 99 Daily Journal DAR 6899, 48 Envt Rep
Cas 1983, 49 Envt Rep Cas 2015, 29 ELR 21326, cert den (2000) 528 US 1115, 145 L Ed 2d 812, 120 S Ct 933, 50 Envt
Rep Cas 1384.
Page 190
16 USCS § 1540
Seized items are forfeited to U.S., where government alleged that items were subject to forfeiture because they
were manufactured from hides of crocodilians designated as endangered, and where owner of items claimed to be innocent owner, because Lacey Act provides for forfeiture on strict liability basis, since to permit importer to recover property because he or she lacks culpability would lend support to continued commercial traffic of forbidden wildlife, and,
therefore, innocent owner defense is not available in forfeiture proceeding based on violations of Endangered Species
Act. United States v One Handbag of Crocodilus Species (1994, ED NY) 856 F Supp 128.
10. Promulgation of regulations
Although Secretary of Interior failed to take timely action on petition to list red-legged frog as endangered species,
and although statutory rider, Public Law 104-06, did not repeal or modify Endangered Species Act, Secretary was unable to comply with listing duty under Act where rider rescinded funding for making final determination that species was
endangered, and therefore necessarily restricted Secretary's ability to comply with his duty. Environmental Defense Ctr.
v Babbitt (1995, CA9 Cal) 73 F3d 867, 95 CDOS 9368, 95 Daily Journal DAR 16341, 41 Envt Rep Cas 1865, 26 ELR
20359.
Commerce Secretary/National Marine Fisheries Service's promulgation of regulations requiring shrimp trawlers to
use turtle exclusion devices or in some instances to reduce tow times was procedurally proper under 5 USCS § 553(b),
where agency published proposed rules in Federal Register, conducted 16 public hearings that were properly noticed,
and changed proposed rules to include reduced tow times provision upon frequent suggestion through public comment,
because agency was not even required to hold public hearings on these regulations pursuant to Endangered Species Act
(16 USCS §§ 1531 et seq.), but did in fact notify many concerned parties through various means, hold hearings, and
achieve final regulations that were no surprise to plaintiffs. La. ex rel. Guste v Verity (1988, ED La) 681 F Supp 1178,
18 ELR 20944, affd (1988, CA5 La) 850 F2d 211, cert den (1989) 488 US 1004, 102 L Ed 2d 775, 109 S Ct 783.
Commerce Secretary/National Marine Fisheries Service's promulgation of regulations under Endangered Species
Act (16 USCS §§ 1531 et seq.) requiring shrimp trawlers to reduce incidental catch and mortality of sea turtles has rational basis and is not arbitrary or capricious under 5 USCS § 706(2)(A), despite claim by Louisiana and its shrimpers
that regulators failed to consider best scientific data available, because administrative record demonstrates that scientific
information was collected from numerous sea turtle experts and shrimping organizations, and that regulations were tailored to reflect limited scientific data in some areas. La. ex rel. Guste v Verity (1988, ED La) 681 F Supp 1178, 18
ELR 20944, affd (1988, CA5 La) 850 F2d 211, cert den (1989) 488 US 1004, 102 L Ed 2d 775, 109 S Ct 783.
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, inter alia,
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.
Fish and Wildlife Service (FWS) was entitled to summary judgment in action under 16 USCS § 1540(g)(1)(A),
which was filed by builder associations challenging FWS' designation of Central California population of California
tiger salamander as "threatened" under Endangered Species Act, 16 USCS §§ 1531 et seq.; FWS considered inadequacy
of existing regulatory mechanisms as required by 16 USCS § 1533(a)(1), and it rationally concluded that there was inadequate protection under Clean Water Act, 33 USCS §§ 1251 et seq., California Streambed Alteration Act, Cal. Fish &
Game Code §§ 1600 et seq., California Environmental Quality Act, Cal. Pub. Res. Code §§ 21000 et seq., and California Porter-Cologne Water Quality Control Act, Cal. Water Code §§ 13000 et seq.; further, FWS articulated standard,
which was five-factor threats analysis under 16 USCS § 1533(a)(1) and standard under 16 USCS § 1532(20), for ascertaining salamander's threatened status; listing was not rendered arbitrary and capricious under 5 USCS § 706(2)(A) just
because threat estimates decreased as other facts, such as habitat loss and development risks, supported listing. Home
Builders Ass'n v United States Fish & Wildlife Serv. (2007, ND Cal) 529 F Supp 2d 1110, affd (2009, CA9 Cal) 321
Fed Appx 704, 39 ELR 20086.
11. Miscellaneous
Page 191
16 USCS § 1540
Designation of spotted owl as endangered species does not require remand of case challenging timber sales in
which it had been held that environmental impact statement conformed with NEPA. Headwaters, Inc. v Bureau of
Land Management Medford Dist. (1991, CA9) 940 F2d 435, 91 CDOS 5763, 91 Daily Journal DAR 8893, 21 ELR
21237.
First phase of construction of project was immune from reconsultation requirement where, although Fish and Wildlife Service had proposed placing red squirrel on endangered list, Service had not made final decision by date project
was begun. Mount Graham Red Squirrel v Madigan (1992, CA9 Ariz) 954 F2d 1441, 92 CDOS 775, 92 Daily Journal
DAR 906, 21 FR Serv 3d 1301, 22 ELR 20391, appeal after remand sub nom Mount Graham Red Squirrel v Espy (1993,
CA9 Ariz) 986 F2d 1568, 93 CDOS 1525, 93 Daily Journal DAR 2800, 23 ELR 20691, subsequent app sub nom Apache
Survival Coalition v United States (1994, CA9 Ariz) 21 F3d 895, 94 CDOS 2469, 94 Daily Journal DAR 4698, 24 ELR
20854, subsequent app sub nom Mount Graham Coalition v Thomas (1995, CA9 Ariz) 53 F3d 970, 95 CDOS 3192, 95
Daily Journal DAR 5213, 40 Envt Rep Cas 1851, 25 ELR 20904, subsequent app (1996, CA9 Ariz) 96 CDOS 4491, 96
Daily Journal DAR 6956, amd on other grounds (1996, CA9) 96 CDOS 5427 and amd on other grounds (1996, CA9
Ariz) 89 F3d 554, 96 Daily Journal DAR 9093, 27 ELR 20218, subsequent app (1997, CA9 Ariz) 108 F3d 1100, 97
CDOS 1740, 97 Daily Journal DAR 3265, subsequent app (1997, CA9 Ariz) 118 F3d 663, 97 CDOS 5231, 97 Daily
Journal DAR 8486, 27 ELR 21209.
Forest Service violated § 7 of Endangered Species Act, 16 USCS § 1536, when it failed to re-initiate consultation
with Fish and Wildlife Service after it failed for several years to adequately monitor cattle grazing on plot of national
forest land; although it initiated informal consultation, action was not moot and declaratory judgment was appropriate in
environmental group's 16 USCS § 1540(g) action against it because such judgment would govern Forest Service's actions for remainder of grazing permit period. Forest Guardians v Johanns (2006, CA9 Ariz) 450 F3d 455, 36 ELR
20109.
Animal defense group's challenge to proposed transfer of lowland gorilla between zoos for purposes of mating must
be dismissed with prejudice, where federal law completely occupies field of interstate commerce in gorillas, because
Animal Welfare Act (7 USCS §§ 2131 et seq.) does not provide for private suits to enforce its terms, and group failed to
comply with mandatory prerequisite to claim brought under 16 USCS § 1540(g)(1)(A)--60 days' notice to Interior Secretary and alleged violator. In Defense of Animals v Cleveland Metroparks Zoo (1991, ND Ohio) 785 F Supp 100.
Recreation groups' action against EPA under 5 USCS § 704 must be dismissed, where they claim EPA was obligated to consult with Interior and Commerce Secretaries before approving various "clean water" actions by state to insure that such actions did not jeopardize any endangered or threatened species, because 16 USCS § 1540(g)(1)(A) provides cause of action for concerned citizens, precluding Administrative Procedure Act (5 USCS §§ 701 et seq.) action.
American Canoe Ass'n v United States EPA (1998, ED Va) 30 F Supp 2d 908, 47 Envt Rep Cas 2100, 29 ELR 20383
(criticized in Save the Valley, Inc. v United States EPA (2002, SD Ind) 223 F Supp 2d 997, 55 Envt Rep Cas 1171) and
(criticized in Wilderness Soc'y v Norton (2005, DC Dist Col) 2005 US Dist LEXIS 18734) and (criticized in Inst. for
Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).
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.
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.
Administrative Procedure Act (APA) does not provide cause of action where adequate remedy at law is otherwise
provided; APA did not provide cause of action to environmental groups seeking to enforce provisions of Endangered
Species Act (ESA) because ESA contained citizen suit provision, which allowed them to sue for injunctive/declaratory
relief for Department of Interior's failure to take action required by ESA, and such provision provided adequate remedy
at law to environmental groups. Cal. Native Plant Soc'y v Norton (2004, DC Dist Col) 311 F Supp 2d 9.
Page 192
16 USCS § 1540
Non-profit environmental organizations could not obtain relief under Administrative Procedure Act for government
officials' failure to designate critical habitat for two endangered minnow species because Endangered Species Act provided exclusive remedy for such failure. Ctr. for Biological Diversity v Hamilton (2005, ND Ga) 385 F Supp 2d 1330.
Because Secretary of Department of Interior is unequivocally required to designate critical habitat unless doing so
would not be prudent, Secretary's duty under law continues until final regulation is published, thus, even if plaintiff's
right of action was to have accrued when deadline passed and statute of limitations expired in six years under 28 USCS
§ 2401, Secretary's violation is ongoing and does not constitute discrete one-time violation with lingering effects or
consequences; continuing violation doctrine applies to such instances. Schoeffler v Kempthorne (2007, WD La) 493 F
Supp 2d 805 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist
LEXIS 90969).
Because defendant Secretary of Department of Interior proposed Louisiana Black Bear's critical habitat several
times for decade without ever making final habitat listing or "not prudent" determination, his only two options under 16
USCS § 1533, plaintiff environmentalist's suit to compel action was not time barred by 28 USCS § 2401(a)'s six year
limitations period. Schoeffler v Kempthorne (2007, WD La) 493 F Supp 2d 805 (criticized in Inst. for Wildlife Prot. v
United States Fish & Wildlife Serv. (2007, DC Or) 2007 US Dist LEXIS 90969).
Although group attempted to bring its claims pursuant to Administrative Procedure Act (APA), 5 USCS § 702, as
alternative to Endangered Species Act, 16 USCS §§ 1533 et seq., relevant provision of APA provided that person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within meaning of
relevant statute, was entitled to judicial review thereof and allowed court to order injunctive or declaratory relief; however, APA jurisdiction was dependent upon lack of alternative adequate remedy, and because ESA "citizen suit" provision provided group with adequate remedy, 16 USCS § 1540(g)(1), group's claims under APA were dismissed. Friends
of Animals v Salazar (2009, DC Dist Col) 670 F Supp 2d 7.
II.CITIZEN SUITS 12. Jurisdiction
Court of Appeals has exclusive jurisdiction over any suit challenging final actions of Bonneville Power Administration; thus, district court properly dismissed suit brought against Administration by environmental groups under Endangered Species Act. Northwest Resource Info. Ctr. v National Marine Fisheries Serv. (1994, CA9 Wash) 25 F3d 872,
94 CDOS 4035, 94 Daily Journal DAR 7545, 39 Envt Rep Cas 1613, 24 ELR 21117.
District Court erred in refusing to abstain and in granting environmental organization preliminary injunction regulating withdrawal of water from aquifer that fed spring at which endangered species lived, where matter was one of
great state concern and state had enacted regulatory scheme to control and manage aquifer. Sierra Club v City of San
Antonio (1997, CA5 Tex) 112 F3d 789, 44 Envt Rep Cas 1982, 27 ELR 21051, reh, en banc, den (1997, CA5 Tex) 118
F3d 1580 and cert den (1998) 522 US 1089, 139 L Ed 2d 868, 118 S Ct 879, 46 Envt Rep Cas 1576.
District court properly dismissed for lack of subject matter jurisdiction environmental group's action against Federal Communications Commission under 16 USCS § 1540(g), citizen-suit provision of Endangered Species Act (ESA);
group could not elude exclusive review provisions under 47 USCS § 402(a) of Communications Act of 1934, 47 USCS
§§ 151 et seq., and under Hobbs Act, 28 USCS § 2342, by disguising its true objection to seven communication tower
registrations in Hawaii as failure to act under ESA. Am. Bird Conservancy v FCC (2008, CA9 Hawaii) 545 F3d 1190, 67
Envt Rep Cas 1833, 38 ELR 20257.
Court of International Trade was without jurisdiction to issue order enforcing its judgment that State Department's
regulations invalidly limited scope of ban on shrimp imports taken without turtle excluder devices to "wider Caribbean
region" where plaintiff environmental group unilaterally and unconditionally withdrew its motion to enforce judgment
18 days prior to Court's order. Earth Island Inst. v Albright (1998, CA FC) 147 F3d 1352, 20 BNA Intl Trade Rep 1193,
28 ELR 21421.
16 USCS § 1540(g)(3)(A) is venue provision only; if personal jurisdiction exists, it must be asserted on basis of
state long-arm statute. Colorado River Water Conservation Dist. v Andrus (1979, DC Colo) 476 F Supp 966.
District Court does not lack jurisdiction over plaintiffs' claim under Endangered Species Act (15 USCS §§ 1531 et
seq.) relating to effects of government's cutting program in national forest on red-cockaded woodpecker, despite government's claim that plaintiff failed to comply with 60-day notice period provided for in § 1540(g)(2)(A), where (1)
plaintiffs sent notice of its objections to program on June 7, (2) government replied on July 2 and 5 indicating that cutting program was in full compliance with Act, (3) plaintiffs filed suit on July 12, and (4) agencies involved are not re-
Page 193
16 USCS § 1540
considering their position and government has not alleged or shown any prejudice due to timing of notice. Sierra Club
v Block (1985, DC Dist Col) 614 F Supp 488, 15 ELR 20775.
Claims by environmental groups alleging that Secretary of Commerce did not administer Endangered Species Act
properly in connection with U.S. government's development and deployment of sonar defense system could not be
brought under 16 USCS § 1540(g)(1)(A), but had to be brought under Administrative Procedure Act. Hawaii County
Green Party v Clinton (2000, DC Hawaii) 124 F Supp 2d 1173.
U.S. Fish and Wildlife Service's initial finding--that emergency listing was not warranted under 16 USCS §
1533(b)(7)--was not reviewable under 16 USCS § 1540(g)(1) because nothing in 16 USCS § 1533(b)(7) indicated that
option of emergency listing was non-discretionary with U.S. Secretary of Interior. Inst. for Wildlife Prot. v Norton
(2003, WD Wash) 303 F Supp 2d 1175.
District courts do not have jurisdiction under Endangered Species Act citizen suit provision over claims for maladministration or violations of 16 USCS § 1536; district court did not have jurisdiction under 16 USCS § 1540(g) over
claims brought by various applicants, who were seeking permits to construct structures on Florida waterways, because
claims were based upon allegations that Fish and Wildlife Service had failed to meet statutory deadlines for rendering
biological opinions and had applied erroneous standards in rendering opinions. Fla. Marine Contrs. v Williams (2004,
MD Fla) 17 FLW Fed D 706, motion gr, summary judgment den, judgment entered (2005, MD Fla) 378 F Supp 2d
1353, 18 FLW Fed D 785.
District court lacked jurisdiction over citizen suit brought by environmentalists under 16 USCS § 1540(g)(1), part
of Endangered Species Act (EAS) and which challenged open-ended delay by U.S. Fish and Wildlife Service in
amending critical habitat for three closely-related endangered species of beach mice, because (1) citizen suit provision
of EAS did not allow federal courts to exercise jurisdiction over claims of abuse of agency discretion and (2) facts did
not convert delay into decision not to act at all. Sierra Club v Norton (2004, SD Ala) 313 F Supp 2d 1291.
No requirement for final federal agency action existed with regard to Endangered Species Act (ESA), 16 USCS §§
1531 et seq., claim because employees of agency brought suit under 16 USCS § 1540(g), citizen suit provision of ESA.
Forest Serv. Emples. for Envtl. Ethics v United States Forest Serv. (2005, DC Mont) 397 F Supp 2d 1241.
Federal agencies' motion for protective order was granted with regard to discovery related to environmental groups'
National Environmental Protection Act (NEPA) claims and groups' request for jurisdictional discovery on Endangered
Species Act (ESA) claims because under 5 USCS § 704 of Administrative Procedure Act (APA), 5 USCS §§ 701 et seq.,
court lacked jurisdiction over those claims; furthermore, because final agency action was not required to show jurisdiction for ESA claims brought under citizen suit provision, 16 USCS § 1540, jurisdictional discovery was not warranted.
Ctr. for Biological Diversity v United States HUD (2006, DC Ariz) 241 FRD 495, 63 Envt Rep Cas 1084.
District court lacked subject matter jurisdiction to consider environmental group's challenge to Federal Communications Commission'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 28 USCS § 2342, part of Hobbs Act. 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.
Plaintiff builders association's claim that defendant officials of U.S. Fish and Wildlife Service and Department of
Interior failed to conduct 16 USCS § 1533's mandatory Environmental Species Act reviews was reviewable under 5
USCS § 704 as inaction made reviewable by statute because 16 USCS § 1540(g)(1)(C) explicitly provided private right
of action to compel nondiscretionary duties. Fla. Home Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330.
Plaintiff builders association's claim that defendant officials of U.S. Fish and Wildlife Service and Department of
Interior failed to conduct 16 USCS § 1533's mandatory Environmental Species Act reviews was reviewable under 5
USCS § 704 as inaction made reviewable by statute because 16 USCS § 1540(g)(1)(C) explicitly provided private right
of action to compel nondiscretionary duties, and, moreover, § 1540(g)(5) provided that injunctive relief provided by
citizen suit provision did not restrict any right which any person (or class of persons) had under any statute or common
law to seek enforcement of any standard or limitation or to seek any other relief against such officials. Fla. Home
Builders Ass'n v Norton (2007, MD Fla) 496 F Supp 2d 1330.
Page 194
16 USCS § 1540
Pursuant to 16 USCS § 1540(c), federal district court had jurisdiction to exercise its traditional equitable injunctive
powers in citizen action pursuant to 16 U.S.C. § 1540(g)(1)(A) alleging violation of Endangered Species Act, 16 USCS
§§ 1531 et seq., because regulatory gap presented immediate risk to Canada lynx, threatened species. 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.
Federal agencies were not entitled to Fed. R. Civ. P. 12(b)(1) dismissal of claim by environmental groups that federal agency was liable for violation of Endangered Species Act's "take" provision under 16 USCS § 1538 based on its
failure to comply with terms of Incidental Take Statement (ITS) that was issued pursuant to 16 USCS § 1536(b)(4);
notwithstanding 16 USCS § 1540(g)'s implied exclusion of suits alleging permit violations, groups' allegation of violation of § 1538(a) was not precluded by fact that it also turned on alleged violation of ITS, which was in some sense
permit. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2009, ED Cal) 629 F Supp 2d 1123, 70 Envt
Rep Cas 1054.
While at first glance 16 USCS § 1540(g)(1) may have granted plaintiffs cause of action against Bureau of Customs
and Border Protection's failure to enforce 16 USCS § 1538 ban on importation of endangered salmon, which already
was codified in 50 CFR § 223.203(a) and 19 CFR § 12.26(g), crux of inquiry was found in words of statute "which is
not discretionary with Secretary"; case law and constitutional concerns placed plaintiffs' claims squarely in category of
discretionary acts and duties, and, therefore, court could not require such actions on part of National Marine Fisheries
Service or Customs. 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.
Section 11 of Endangered Species Act (ESA), 16 USCS § 1540(g)(1)(A) did not conflict with broad residual jurisdiction encompassed in 28 USCS § 1581(i) because 28 USCS § 1581(i) was more specific and later enacted statute, and
as such took priority over general grant of jurisdiction to district courts in § 11 of ESA. Salmon Spawning & Recovery
Alliance v United States (2009, CIT) 626 F Supp 2d 1277, 31 BNA Intl Trade Rep 1410.
13.--Notice requirements
District Court did not abuse its discretion in sanctioning attorneys who brought private suit under Endangered Species Act one day after serving notice of intent to sue in violation of 60-day waiting period. Maine Audubon Soc. v
Purslow (1990, CA1 Me) 907 F2d 265, 16 FR Serv 3d 1264, 21 ELR 20044.
Notice provision (16 USCS § 1540(g)(2)(A)) provides agencies with opportunity to resolve dispute and take any
necessary corrective measures before resort to courts; notice must adequately inform agency of exact grievances against
it if it is to fulfill this purpose. Water Keeper Alliance v United States DOD (2001, CA1 Puerto Rico) 271 F3d 21, 53
Envt Rep Cas 1481, 32 ELR 20314.
Interior Department is entitled to dismissal of timber companies' challenges to biological opinions holding up timber sales, but companies maintain right to refile, where companies failed to file 60-day notice of intent to sue with respect to new claims challenging validity, not untimeliness, of opinions, because 60-day notice is jurisdictional and failure to comply is absolute bar to bringing action under 16 USCS § 1540. Lone Rock Timber Co. v United States Dep't of
Interior (1994, DC Or) 842 F Supp 433, 24 ELR 20873.
Landowners did not comply with notice-of-intent-to-sue requirement of 16 USCS § 1540(g)(2)(A) when they sent
notice to Secretary of Interior concerning suit involving hawksbill sea turtles and green sea turtles, where Secretary of
Commerce, not Secretary of Interior, maintained jurisdiction over and responsibility for species named in action.
Hawksbill Sea Turtle v FEMA (1996, DC VI) 35 VI 213, 939 F Supp 1195, revd, remanded on other grounds (1997,
CA3 VI) 37 VI 526, 126 F3d 461, 45 Envt Rep Cas 1241, 28 ELR 20101, summary judgment den, motion to strike den,
motion den, objection denied, application den (1998, DC VI) 39 VI 268, 11 F Supp 2d 529, 46 Envt Rep Cas 2050, 29
ELR 20100, remanded without op (2000, CA3 VI) 215 F3d 1314 and (criticized in Jean Alexander Cosmetics, Inc. v
L'Oreal USA, Inc. (2006, CA3 Pa) 458 F3d 244, 80 USPQ2d 1470).
In dispute involving use of water in reservoir, letter sent to agency almost two years before suit was brought met
notice requirement of 16 USCS § 1540(g) because challenged use of water was ongoing situation. San Carlos Apache
Page 195
16 USCS § 1540
Tribe v United States (2003, DC Ariz) 272 F Supp 2d 860, affd (2005, CA9 Ariz) 417 F3d 1091, subsequent app (2005,
CA9 Ariz) 144 Fed Appx 635, 35 ELR 20163.
Federal district court had jurisdiction to hear Florida's motion for injunctive relief to require Army Corps of Engineers to maintain water releases from dam located upstream of critical habitat for threatened and endangered mussel
species because Florida had complied with 60-day citizen suit notice requirement under 16 USCS § 1540 (g)(2)(A)(1),
part of Endangered Species Act by sending letter to Corps many months before, giving notice that it was challenging
ongoing operations of Corps' upstream reservoirs. Alabama v United States Army Corps of Eng'rs (2006, ND Ala) 441 F
Supp 2d 1123.
Even where need for 12-month finding remained speculative when intent to sue submitted on January 13, 2009, organizations and individuals' failure to provide 60 days' notice prior to bringing its claims with respect to 12-month finding meant those claims had to be dismissed; moreover, because organizations and individuals intent to sue letter did not
notify Secretary of Department of Interior that they intended to challenge his subsequent failure to issue 12-month finding, it would have been unfair to permit this claim to proceed; therefore, court dismissed organizations and individuals'
claim that Secretary's failure to issue 12-month finding violated 16 USCS § 1533. Conservation Force v Salazar (2010,
DC Dist Col) 715 F Supp 2d 99.
14.----Requirements not applicable
Sixty day notice requirement of 16 USCS § 1540(g) is only applicable to automatic standing provisions of § 1540,
and does not affect plaintiffs' standing to challenge defendants' actions under traditional guidelines for standing. Jackson Hole Alliance for Responsible Planning v Watt (1983, DC Wyo) 13 ELR 20994.
Failure to meet 60-day notice requirement under 16 USCS § 1540(g) was not fatal to claim that biological opinions
rendered by two consulting agencies were arbitrary and capricious because action was also alleged under Administrative
Procedure Act. NRDC v Rodgers (2005, ED Cal) 381 F Supp 2d 1212, 61 Envt Rep Cas 1771.
Environmental group was not required to give U.S. Fish and Wildlife Service (FWS) 60-day notice required by 16
USCS § 1540(g)(2)(C), before bringing suit that challenged FWS's decision to reject petitions to list greater sage-grouse
under 16 USCS § 1533; ESA notice requirement did not apply because group's suit was brought under Administrative
Procedure Act, 5 USCS §§ 701 et seq., to review discretionary decision of FWS. Western Watersheds Project v United
States Forest Serv. (2007, DC Idaho) 535 F Supp 2d 1173, 66 Envt Rep Cas 1693.
Plaintiff organizations' delay in filing claim under Endangered Species Act, 16 USCS §§ 1531 et seq., was not improper because they sent Maine Department of Inland Fisheries and Wildlife statutorily mandated sixty-day notice of
intent to sue letter pursuant to 16 USCS § 1540(g) within two months after opinion was written in similar case. 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.
15.----Violation of requirement
Plaintiff's notice under 16 USCS § 1540 to Secretary of Interior to file suit in regard to endangered sea turtles in
terrestrial habitat did not satisfy requirement of § 1540 that Secretary of Commerce be notified in same manner before
bringing suit in regard to same sea turtles in their marine habitat. Hawksbill Sea Turtle v Federal Emergency Mgmt.
Agency (1997, CA3 VI) 37 VI 526, 126 F3d 461, 45 Envt Rep Cas 1241, 28 ELR 20101, summary judgment den, motion
to strike den, motion den, objection denied, application den (1998, DC VI) 39 VI 268, 11 F Supp 2d 529, 46 Envt Rep
Cas 2050, 29 ELR 20100, remanded without op (2000, CA3 VI) 215 F3d 1314 and (criticized in Jean Alexander Cosmetics, Inc. v L'Oreal USA, Inc. (2006, CA3 Pa) 458 F3d 244, 80 USPQ2d 1470).
Citizen suit to enforce Endangered Species Act (16 USCS §§ 1531 et seq.) against private defendants is dismissed
without prejudice for failure to comply with requirement that no action may be commenced prior to 60 days after written notice of violation is given to Secretary of Interior, because notice requirement is strictly construed, and thus plaintiff's argument that imminent destruction of bald eagle nests is emergency justifying lack of notice could not excuse its
filing suit 1 day after notifying secretary. Maine Audubon Soc. v Purslow (1987, DC Me) 672 F Supp 528, 26 Envt Rep
Cas 2077, 18 ELR 20562.
Page 196
16 USCS § 1540
Humane society's challenge to authorization of deer hunting on national wildlife refuge under Endangered Species
Act (16 USCS §§ 1531 et seq.) will be dismissed, where society's only notice given to Fish and Wildlife Service was
announced intention to sue if rule were adopted, made in comments submitted during notice-and-comment period of
rulemaking, because such notice did not meet requirement of 60-day pre-suit notice under 16 USCS § 1540(g)(2)(A).
Humane Soc. of United States v Lujan (1991, DC Dist Col) 768 F Supp 360.
Jurisdiction is lacking to hear complaint of whale-watching tour operator that there are very few humpback whales
to see off coast of Hawaii due to sonar testing, even though operator has standing under 16 USCS § 1540(g)(1)(A), because operator has not given 60 days' notice to Interior Secretary and to researchers allegedly violating statute, as required by § 1540(g)(2)(A). Kanoa Inc. v Clinton (1998, DC Hawaii) 1 F Supp 2d 1088.
Suit challenging development and use of Navy sonar system was barred by failure to comply with notice provision,
16 USCS § 1540(g)(2)(A), part of Endangered Species Act; court declined to hold claim in abeyance until expiration of
60-day period to permit plaintiff to file notice. Cetacean Cmty. v President of the United States (2003, DC Hawaii) 249
F Supp 2d 1206, affd (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR 20120.
Non-profit group's claim that National Marine Fisheries Service (NMFS) violated Endangered Species Act, 16
USCS § 1531 et seq. (ESA), by allowing fishing of certain listed salmon types through regulation, incidental take permits, and ESA consultation process was dismissed where group appeared to be seeking wholesale improvement by court
decree of way in which NMFS made and effectuated listing determinations; judicial precedent made clear that final
agency action requirement in 5 USCS § 704 barred federal jurisdiction over suits for broad programmatic relief, and
non-profit group had not included claim in their 60-day notice letter as required under 16 USCS § 1540(g)(2)(A)(i).
Common Sense Salmon Recovery v Evans (2004, DC Dist Col) 329 F Supp 2d 96, 59 Envt Rep Cas 1081, dismd (2005,
App DC) 2005 US App LEXIS 1810.
Leaseholders' citizen suit with respect to alleged taking of endangered plover in violation of 16 USCS § 1532(19)
was improper because leaseholders failed to provide requisite 60-day notice under 16 USCS § 1540(g) that they intended to sue state officers for taking plover in process of removing leaseholders' mobile homes; leaseholders' notice failed
to even mention plover and, therefore, never provided State opportunity to rectify asserted Endangered Species Act, 15
USCS §§ 1531 et seq., violation with respect to plover. Pulaski v Chrisman (2005, CD Cal) 352 F Supp 2d 1105, affd
(2005, CA9 Cal) 127 Fed Appx 993.
Court granted Bureau of Reclamation and Army Corps of Engineers' motion to dismiss because plaintiff organization did not comply with 60-day notice provision, 16 USCS § 1540(g)(2)(A), before it filed its complaint, and due to
organization's failure to satisfy that mandatory condition precedent to suit, action had to be dismissed as barred by terms
of statute; further, organization could not cure its defective notice by sending Bureau and Corps Notice of Intent after
commencing suit and then waiting 60 days to file supplement complaint. Forest Guardians v United States Bureau of
Reclamation (2006, DC NM) 462 F Supp 2d 1177.
District court lacked subject matter jurisdiction over landowner's citizen suit, which alleged that National Marine
Fisheries Service (NMFS) acted contrary to procedural provisions of 16 USCS § 1533 in violation of 5 USCS § 706
when NMFS declined to review his petition to redefine southern boundary of California Central Coast evolutionarily-significant unit of coho salmon; landowner failed to give 60-day notice required under 16 USCS § 1540(g)(2)(C), and
APA could not provide jurisdiction under 5 USCS § 704 because Congress provided another adequate remedy under
ESA. McCrary v Gutierrez (2007, ND Cal) 528 F Supp 2d 995.
Because environmental group's complaint was silent with respect to any action taken to fulfill statutory notice provision in 16 USCS § 1540(g)(2)(A), court dismissed this claim as specifically pled under Endangered Species Act. Miccosukee Tribe of Indians of Fla. v United States (2008, SD Fla) 38 ELR 20205.
In case in which environmental group and others (plaintiffs) filed emergency motion for preliminary injunction to
halt construction of power plant, it appeared that district court lacked jurisdiction over federal defendants since plaintiffs
failed to provide federal defendants with requisite notices of intent to sue under 42 USCS § 7604(b)(1)(A), 16 USCS §
1540(g)(2)(A)(I), and 33 USCS § 1365(b)(1)(A), as required for suits under Clean Air Act, Endangered Species Act, and
Clean Water Act, respectively. Palm Beach County Envtl. Coalition v Florida (2008, SD Fla) 587 F Supp 2d 1254, motion gr, count dismd, motion den, motion to strike den, as moot (2009, SD Fla) 651 F Supp 2d 1328.
Group's claim that United States Fish and Wildlife Service (FWS), Secretary of Interior, and FWS Director violated
16 USCS § 1533(b)(3)(B) by failing to make 12-month finding on group's January 2008 petition had to be dismissed
because when bringing action pursuant to citizen suit provisions of Endangered Species Act, 16 USCS §§ 1533 et seq.,
Page 197
16 USCS § 1540
no plaintiff may commence action without giving Secretary 60-days prior written notice of its intent to sue, 16 USCS §
1540(g)(2), and group failed to provide 60-days' notice prior to bringing its claims with respect to 12-month finding;
moreover, group's request for leave to amend complaint was denied because allowing group leave to amend its complaint after commencing action without proper notice would undermine Fed. R. Civ. P. 3 and render notice requirement
meaningless. Friends of Animals v Salazar (2009, DC Dist Col) 670 F Supp 2d 7.
Unpublished Opinions
Unpublished: Plaintiffs' claim did not give Secretary of Interior "fair notice" that it challenged Secretary's final decision denying emergency listing of Mono Basin area sage grouse; had allegations been meant to challenge December
26, 2002 regulation rather than March 20, 2002 letter, plaintiffs should have incorporated them into claim for relief distinct from second claim for relief. Inst. for Wildlife Prot. v Norton (2005, CA9 Wash) 149 Fed Appx 627.
16. Standing
Parties challenging federal agency's biological opinion imposing lake-level restrictions to protect endangered species held to have standing under zone of interests test to bring §§ 1533 and 1536 claims under Endangered Species Act,
and § 1536 claim under Administrative Procedure Act. Bennett v Spear (1997) 520 US 154, 137 L Ed 2d 281, 117 S Ct
1154, 97 CDOS 2000, 97 Daily Journal DAR 3647, 44 Envt Rep Cas 1161, 27 ELR 20824, 10 FLW Fed S 354, on remand, remanded (1997, CA9) 112 F3d 402, 97 CDOS 2932, 97 Daily Journal DAR 5164, summary judgment gr, summary judgment den, in part sub nom Bennett v Spear (1998, DC Or) 5 F Supp 2d 882.
Environmental organization had standing under citizen suit provision of ESA or APA to bring suit against Department of Agriculture for violating 15 USCS § 1536 by failing to conserve endangered species dependent on specified
aquifer. Sierra Club v Glickman (1998, CA5 Tex) 156 F3d 606, 47 Envt Rep Cas 1566, 29 ELR 20159, reh den (1998,
CA5 Tex) 1998 US App LEXIS 33142.
Although U.S. Const. art. III did not prevent Congress from authorizing suit in name of animal, cetacean community, which consisted of all of world's whales, porpoises, and dolphins, did not have standing to sue under: (1) Endangered Species Act, 15 USCS §§ 1531 et seq., since there was no hint in definition of "person" in 16 USCS § 1532(13)
that "person" authorized to bring suit to protect endangered or threatened species could be animal that was itself endangered or threatened; (2) Administrative Procedure Act (APA), 5 USCS §§ 701 et seq., since § 10(a) (5 USCS § 702(a))
of APA did not define "person" to include animals; (3) Marine Mammal Protection Act (MMPA), 16 USCS §§ 1361 et
seq., since no court had ever held that animal, even marine mammal whose protection was at stake, had standing to sue
in its own name to require that party seek permit or letter of authorization under MMPA; and (4) National Environmental Policy Act (NEPA), 42 USCS §§ 4321 et seq., since although courts had recognized standing for individuals and
groups of individuals when they contend that challenged federal action will adversely affect environment, nothing in
NEPA permitted court to hold that animals who were part of environment had standing to bring suit on their own behalf.
Cetacean Cmty. v Bush (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR 20120.
Environmental groups' Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., claims against development
company were moot because Bald Eagle had been de-listed; therefore, no activities by company could constitute "take"
of bald eagle within meaning of ESA. Ctr. for Biological Diversity v Marina Point Dev. Co. (2008, CA9 Cal) 535 F3d
1026, 67 Envt Rep Cas 1289, 38 ELR 20200, reprinted as amd, reh den, reh, en banc, den, costs/fees proceeding, remanded (2009, CA9 Cal) 560 F3d 903, amd on other grounds (2009, CA9 Cal) 566 F3d 794 and op withdrawn, amd on
other grounds, petition den, as moot, remanded (2009, CA9 Cal) 560 F3d 903 and reprinted as amd, remanded (2009,
CA9 Cal) 566 F3d 794.
State and mining companies have standing under Endangered Species Act to challenge ICC's authorization of
abandonment of stretch of railroad track linking mining companies and other shippers in silver-producing area of state.
Idaho by & Through Idaho Pub. Utils. Comm'n v ICC (1994, App DC) 308 US App DC 268, 35 F3d 585, 39 Envt Rep
Cas 1658, 25 ELR 20191.
Former elephant handler's desire to visit elephants which might include attending circus performances, his experience with them, and his alleged ability to recognize effects of mistreatment were sufficient to give him standing in
bringing lawsuit under Endangered Species Act, 16 USCS §§ 1531 et seq. ASPCA v Ringling Bros. & Barnum & Bailey
Circus (2003, App DC) 354 US App DC 432, 317 F3d 334, 55 Envt Rep Cas 1904.
Plaintiff organizations clearly had standing under "citizens' suit" provision of Act since 16 USCS § 1540(g) confers
automatic standing on any person claiming violation thereof; in addition, plaintiffs alleged "injury in fact" to their
Page 198
16 USCS § 1540
members, and, as visitors and users of crane habitat, were within "zone of interest" intended to be protected by statute.
National Wildlife Federation v Coleman (1975, SD Miss) 400 F Supp 705, 5 ELR 20566, revd on other grounds (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.
Former owner of contaminated property lacks standing to challenge remedial plan under 16 USCS § 1540(g), where
challenge is based on allegation that plan's provision for draining marsh would harm endangered species and motivation
is for less costly remedial plan, because alleged injury to former owner is not caused by alleged endangered species violation. Mayock v INS (1990, ND Cal) 736 F Supp 1561.
Water districts' claims under Endangered Species Act (ESA) (16 USCS §§ 1531 et seq.) will not be dismissed for
lack of standing, where districts allege substantial injury from deprivation of their alleged water rights due to federal
decision reducing their agricultural allotments at least 50 percent for purposes of saving threatened fish species, because
these allegations are sufficient to confer standing under either § 1540(g) or "zone of interests" analysis. Westlands
Water Dist. v United States, Dep't of the Interior, Bureau of Reclamation (1994, ED Cal) 850 F Supp 1388 (Vacatur
noted in Delta Smelt Consol. Cases v Salazar (2009, ED Cal) 686 F Supp 2d 1026, 71 Envt Rep Cas 1135, 40 ELR
20263).
Allegations that Forest Service's failure to implement proper vegetation and snow management techniques caused
one plaintiff's water rights restriction and jeopardized another's future viewing of endangered aquatic species were sufficient to satisfy causation prong of test for standing to bring citizen suit under 16 USCS § 1540(g). Coalition for Sustainable Resources, Inc. v United States Forest Serv. (1999, DC Wyo) 48 F Supp 2d 1303, 48 Envt Rep Cas 1753, affd,
in part, vacated, in part on other grounds (2001, CA10 Wyo) 259 F3d 1244, 53 Envt Rep Cas 1368, 2001 Colo J C A R
4014, 31 ELR 20864.
Fact that U.S. Fish and Wildlife Service was not required under 16 USCS § 1540(g) to designate as critical habitat
for threatened species of minnows areas that plaintiff used to study minnows did not deprive plaintiff of standing to
bring action to force Service to designate critical habitat for minnows at earliest possible time, as long as there was reasonable probability that designation would include area. Southwest Ctr. for Biological Diversity v Clark (1999, DC NM)
90 F Supp 2d 1300.
Suit by community of whales, dolphins, and porpoises for alleged violations of Endangered Species Act (ESA) and
other federal statutes in connection with development of sonar system was dismissed for, inter alia, lack of standing
because animals were not "persons" as defined under 16 USCS § 1532(13), part of ESA; also, claims were not ripe because there had been no proposal to use sonar system in challenged manner. Cetacean Cmty. v President of the United
States (2003, DC Hawaii) 249 F Supp 2d 1206, affd (2004, CA9 Hawaii) 386 F3d 1169, 59 Envt Rep Cas 1257, 34 ELR
20120.
Interest group representing landowners had procedural standing under U.S. Const. art. III, where proper administration of Endangered Species Act within one member's land became actual injury when Fish and Wildlife Service issued
allegedly improper "not prudent" determinations regarding critical habitat for eight plant species, thereby establishing
concrete injury, and group had procedural right by virtue of its right to bring citizen's suit under 16 USCS § 1540(g)(1).
Bldg. Indus. Legal Def. Found. v Norton (2003, SD Cal) 259 F Supp 2d 1081, 56 Envt Rep Cas 1782.
With respect to monitoring activities that are required under 16 USCS § 1533(b)(3)(C)(iii), part of Endangered
Species Act (ESA), word "shall" of course connotes statutory command, but word "effectively" renders discretionary
details of how command is executed; ESA's citizen suit provisions, 16 USCS § 1540(g)(1)(C), are therefore inapplicable
to monitoring activities under § 1533(b)(3)(C)(iii). Cal. Native Plant Soc'y v Norton (2005, DC Dist Col) 60 Envt Rep
Cas 1119, dismd (2005, App DC) 2005 US App LEXIS 15621.
17.--Environmental groups
16 USCS § 1540(g) provides that "any person" may commence suit to enjoin any person who is alleged to be in violation of Endangered Species Act, and therefore, environmental associations need meet only constitutional requirements for standing for their claims under ESA; physical damage to place which individual personally visits or to animals that he actually observes is type of injury sufficient to confer standing under Constitution. Defenders of Wildlife,
Friends of Animals & Their Environment v Hodel (1988, CA8 Minn) 851 F2d 1035, 28 Envt Rep Cas 1129, 18 ELR
21343 (criticized in Bennett v Plenert (1995, CA9 Or) 63 F3d 915, 95 CDOS 6699, 95 Daily Journal DAR 11470, 41
Envt Rep Cas 1129, 25 ELR 21479).
Page 199
16 USCS § 1540
Citizen suit provision permitted environmental groups to sue EPA to enjoin EPA's alleged unauthorized taking of
species in violation of Endangered Species Act (16 USCS §§ 1531 et seq.) by continued registrations of strychnine.
Defenders of Wildlife v Administrator, EPA (1989, CA8 Minn) 882 F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440.
Environmental associations have standing to bring suit under Endangered Species Act to enjoin federal funding of
projects in foreign countries; Act's requirement that agency consult with Secretary of Interior regarding impact of such
funding on endangered species applies to projects in foreign countries. Defenders of Wildlife, Friends of Animals &
Their Environment v Lujan (1990, CA8 Minn) 911 F2d 117, 32 Envt Rep Cas 1213, 20 ELR 21442, reh den, en banc
(1990, CA8) 1990 US App LEXIS 22299 and revd, remanded on other grounds (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.
Nonprofit organization that seeks to protect threatened species has direct interest in seeing that Fish and Wildlife
Service complies with 16 USCS § 1536(a)(2); thus, such organization has standing to bring suit under 16 USCS § 1540.
Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal
DAR 7051, 53 Envt Rep Cas 2129, 31 ELR 20778.
National Audubon Society had standing to bring suit against U.S. Fish and Wildlife Service under 16 USCS §§
1531 et seq. since organization's activities in observing and studying wild condors may be set back by agency's action to
bring remaining wild condors into captivity, and activities of organization were within "zones of interests" protected by
Endangered Species Act. National Audubon Soc. v Hester (1986, App DC) 255 US App DC 191, 801 F2d 405.
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) 2008 US App LEXIS 25358, 30 BNA Intl Trade Rep 1873,
39 ELR 20304.
Private nonprofit associations and private nonprofit corporation dedicated to protecting and conserving earth's natural resources and wildlife, and scientist who studied endangered species of bird, had standing under Endangered Species Act to bring action to protect endangered species of bird whose habitat was threatened by feral sheep and goats
maintained by state for sport-hunting. Palila v Hawaii Dep't of Land & Natural Resources (1979, DC Hawaii) 471 F
Supp 985, 14 Envt Rep Cas 1204, 9 ELR 20426, affd (1981, CA9 Hawaii) 639 F2d 495, 15 Envt Rep Cas 1741, 11 ELR
20446.
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.
Environmental organizations had standing to bring action under 16 USCS § 1540(g) on behalf of their members to
enjoin logging company from conducting or allowing any logging activities within boundaries of timber harvest plans
pending completion of formal consultation with Fish and Wildlife Service and National Marine Fisheries Service, where
organizations' members derived aesthetic enjoyment from coho salmon in areas covered by timber harvest plans, coho
were present in areas, and expert testimony established link between logging operations and degradation of coho habitat. Environmental Protection Info. Ctr., Inc. v Pacific Lumber Co. (1999, ND Cal) 67 F Supp 2d 1090.
Citizen suit provision of Endangered Species Act, 16 USCS §§ 1531 et seq., did not impermissibly delegate legislative power to environmental group, private entity. Shields v Babbitt (2000, WD Tex) 229 F Supp 2d 638.
Programmatic relief is available under Endangered Species Act's citizen suit provision, regardless of whether such
relief is available when claim is brought solely under Administrative Procedure Act. Nat'l Wildlife Fed'n v FEMA (2004,
WD Wash) 345 F Supp 2d 1151, 59 Envt Rep Cas 1973.
Environmental organizations' claims against United States Fish and Wildlife Service (USFWS) alleged that
USFWS issued final rule for reintroduction of Mexican wolf and issued memorandum of understanding and standard
operating procedure, which resulted in final rule failing to conserve species; accordingly, claims should be brought under 16 USCS § 1540(g)(1)(A), instead of 16 USCS § 1540(g)(1)(C), or 5 USCS § 706. Defenders of Wildlife v Tuggle
(2009, DC Ariz) 607 F Supp 2d 1095.
Page 200
16 USCS § 1540
18.--Trade associations
Trade association of timber companies did not have standing to assert quality of life injuries under Endangered
Species Act and Forest and Rangeland Renewable Resources Planning Act, where such injuries were merely attenuated
versions of economic injuries already considered. Region 8 Forest Serv. Timber Purchasers Council v Alcock (1993,
CA11 Ga) 993 F2d 800, 23 ELR 20151, 7 FLW Fed C 459, cert den (1994) 510 US 1040, 126 L Ed 2d 651, 114 S Ct
683 and (criticized in Wyoming Timber Indus. Ass'n v United States Forest Serv. (2000, DC Wyo) 80 F Supp 2d 1245,
49 Envt Rep Cas 2095, 30 ELR 20296).
Building industry association's challenge to final rule listing Mojave Desert population of desert tortoise as endangered species is dismissed without prejudice, where final rule was issued on or about April 2, 1990 and complaint was
filed on April 13, 1990, because association failed to satisfy 60-day notice and delay period required by 16 USCS §
1540(g)(2)(c) prior to filing suit. Building Industry Ass'n v Lujan (1992, DC Dist Col) 785 F Supp 1020.
Claim of organizations representing agricultural interests of farmers and ranchers, seeking injunction to remove
mollusks from list of endangered or threatened species under Endangered Species Act (ESA) (16 USCS §§ 1531 et
seq.), is denied summarily, where plaintiffs alleged that listing will have adverse impact on members' aesthetic and recreational enjoyment of mollusk habitat, because plaintiffs cannot establish that area of river and water in which they
recreate or aesthetically enjoy will be destroyed or harmed by listing of mollusks, so plaintiffs' conclusory statements of
harm do not constitute injury which falls within zone of interests of ESA, so plaintiffs lack standing. Idaho Farm Bureau Fed'n v Babbitt (1995, DC Idaho) 900 F Supp 1349, 26 ELR 20491.
Home builders' associations lack standing to challenge Fish and Wildlife Service's technical correction which
changed listing of 2 endangered species to 4 based on scientific evidence, where associations could not show any threat
or adverse impact on their development interests based solely on correction, because associations lack standing to sue
under 16 USCS § 1540(g) citizen suit provision. National Ass'n of Home Builders of the United States v Babbitt (1997,
DC Dist Col) 990 F Supp 1, 28 ELR 20222.
19. Intervention
Government intervenors in suit brought by environmental interest group against Fish and Wildlife Service lacked
standing to appeal judgment in which original plaintiff and defendant agreed to accept "Clarified Judgment and Findings" without showing of some injury from judgment below. Sierra Club v Babbitt (1993, CA5 Tex) 995 F2d 571, 24
ELR 20891, reh den (1993, CA5 Tex) 1993 US App LEXIS 23493.
Indian Community with interest in government's recently completed "Additional Active Conservation Capacity"
behind dam, in which it had right to store water, was not necessary party to suit by environmental groups against government for violating Endangered Species Act where government would adequately represent Community's interest.
Southwest Ctr. for Biological Diversity v Babbitt (1998, CA9 Ariz) 150 F3d 1152, 98 CDOS 6173, 98 Daily Journal
DAR 8542, 41 FR Serv 3d 284, 28 ELR 21560.
International association of fish and wildlife agencies was permitted to intervene in action against federal defendants for alleged violations of Refuge Recreation Act (16 USCS §§ 660k et seq.), National Wildlife System Administration Act (16 USCS §§ 668dd et seq.), Endangered Species Act (16 USCS §§ 1531 et seq.), and National Environmental
Policy Act (42 USCS §§ 4321 et seq.), regarding management of national wildlife refuges, to represent state authorities
in administering fishing and hunting programs on refuges, since their participation contributed perspective that might
not otherwise have been represented. Humane Soc. of United States v Clark (1985, DC Dist Col) 109 FRD 518, 3 FR
Serv 3d 423.
One of 2 nonprofit organizations, which represented interests of recreational hunting and trapping enthusiasts in
rulemaking proceeding in which 15 national wildlife refuges were open to recreational hunting and fishing, was denied
permission to intervene in action against government defendants, alleging violations of Refuge Recreation Act (16
USCS §§ 660k et seq.), National Wildlife System Administration Act (16 USCS §§ 668dd et seq.), Endangered Species
Act (16 USCS §§ 1531 et seq.), and National Environmental Policy Act (42 USCS §§ 4321 et seq.), since it failed to
show difference between its position and that of organization granted permissive intervention to represent hunters.
Humane Soc. of United States v Clark (1985, DC Dist Col) 109 FRD 518, 3 FR Serv 3d 423.
Nonprofit organizations, which represented interests of recreational hunting and trapping enthusiasts in rulemaking
proceeding in which 15 national wildlife refuges were opened to recreational hunting and fishing, were not entitled to
intervene as of right in support of government defendants' decisions to add 28 refuges to list, in action alleging viola-
Page 201
16 USCS § 1540
tions of Refuge Recreation Act (16 USCS §§ 660k et seq.), National Wildlife System Administration Act (16 USCS §§
668dd et seq.), Endangered Species Act (16 USCS §§ 1531 et seq.), and National Environmental Policy Act (42 USCS
§§ 4321 et seq.), since intervenors failed to show difference between their interest and that of defendants. Humane
Soc. of United States v Clark (1985, DC Dist Col) 109 FRD 518, 3 FR Serv 3d 423.
In suit by animal rights group charging government with violating Endangered Species Act by permitting night club
performer to purchase and maintain orangutans, performer had right to intervene where he had substantial economic
interest in preserving his rights to use orangutans in his act. People for the Ethical Treatment of Animals v Babbitt
(1993, DC Dist Col) 151 FRD 6, 27 FR Serv 3d 1164.
In case in which intervenor-applicants, cattleman's association and two organizations, (1) satisfied requirements for
Article III standing because they demonstrated that would sustain direct injury if county and conservation groups obtained any of their requested relief; (2) established interest relating to designation of Gunnison sage-grouse as threatened or endangered by virtue of establishing constitutional standing; (3) showed that disposition of case could, as practical matter impair or impede intervenors' ability to protect their interest; and (4) demonstrated that their interests were
not adequately represented by existing parties, their Fed. R. Civ. P. 24(a) motion to intervene as matter of right was
granted. County of San Miguel v MacDonald (2007, DC Dist Col) 244 FRD 36, 68 FR Serv 3d 1434.
Hunting rights advocate established right to intervene under Fed. R. Civ. P. 24(a) in action under 16 USCS § 1540
challenging issuance by Bureau of Land Management of resource management plans for Arizona district because advocate established significantly protectable interest, that was not adequately protected by Bureau or Fish and Wildlife Service, related to claims of violations under 16 USCS § 1536 regarding lead ammunitions and California condor. Ctr. for
Biological Diversity v United States BLM (2010, DC Ariz) 266 FRD 369.
20. Ripeness
Environmental club letters, in 1990, 1994, and 1998, threatening legal action for Endangered Species Act violations
but disclaiming that it would bring suit against water user individually, if considered as written notices of violation for
purposes of 16 USCS § 1540(g)(2)(A), and followed by years of inactivity, presented no case or controversy for water
user's declaratory judgment action. Shields v Norton (2002, CA5 Tex) 289 F3d 832, 54 Envt Rep Cas 1477, 32 ELR
20639, reh den (2002, CA5 Tex) 2002 US App LEXIS 16596 and cert den (2002) 537 US 1071, 154 L Ed 2d 565, 123 S
Ct 663, 56 Envt Rep Cas 1032.
Application of Ash Creek factors required dismissal for lack of jurisdiction over plaintiffs' Endangered Species Act
(ESA) claims as claims were not yet ripe for review; case did not involve purely legal issues, there was no final agency
action as Fish and Wildlife Service had not finalized its interpretation of regulations pertaining to control of depredating
wolves, direct and immediate impact from agency inaction was uncertain, and addressing merits of case would not have
increased efficacy of administration of ESA. Gordon v Norton (2003, CA10 Wyo) 322 F3d 1213, 55 Envt Rep Cas 2135.
Action for protection of endangered species of bird is ripe for adjudication despite lack of final state determination
with respect to removal of feral sheep and goats from bird's habitat. Palila v Hawaii Dep't of Land & Natural Resources (1979, DC Hawaii) 471 F Supp 985, 14 Envt Rep Cas 1204, 9 ELR 20426, affd (1981, CA9 Hawaii) 639 F2d
495, 15 Envt Rep Cas 1741, 11 ELR 20446.
21. Complaint
Although count alleging violation of Endangered Species Act was not added to complaint until less than 60 days
before trial, count would not be dismissed where evidence was fully developed at trial, dismissal for failure to comply
with time limit of 16 USCS § 1540(g)(2)(A)(i) would work injustice to adjudication of claim, and further time allowance
for defendant to prepare would produce no added evidence which would help court in its decision. Sierra Club v
Froehlke (1976, CA8 Mo) 534 F2d 1289, 8 Envt Rep Cas 1944, 6 ELR 20448 (superseded by statute on other grounds as
stated in City of Oxford v FAA (2005, CA11) 428 F3d 1346, 35 ELR 20219, 18 FLW Fed C 1093).
District court properly dismissed county's "failure to act" causes of action against U.S. Fish and Wildlife Service
(FWS) under 5 USCS § 706(1), and under 16 USCS § 1540(g)(1)(C); 16 USCS § 1533(c)(2) did not incorporate deadlines of petition process under § 1533(b)(3) and, therefore, FWS's determination in five-year review mandated under §
1533(c)(2) that listed marbled murrelets were not distinct population segment did not trigger judicially-enforceable duty
to promptly publish proposed rule delisting murrelets. Coos County Bd. of County Comm'rs v Kempthorne (2008, CA9
Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.
Page 202
16 USCS § 1540
When defendant Fish & Wildlife Service's 16 USCS § 1533(c)(2)(A) five-year review determined that tri-state population endangered bird listing should not be changed, but imposed no new legal obligations and did not deny plaintiff
forest products trade association any rights, it was not final agency action subject to review under 5 USCS § 704; association's 16 USCS § 1540(g)(1)(A) citizen suit challenge was dismissed for failure to state claim. Am. Forest Res. Council v Hall (2008, DC Dist Col) 533 F Supp 2d 84, dismd, as moot (2009, App DC) 2009 US App LEXIS 15421.
22. Injunctions
Ordinary test for preliminary injunction is not test under Endangered Species Act since balance of hardships and
public interest tip heavily in favor of endangered species and Sierra Club is entitled to injunctive relief if Corps of Engineers violated substantive or procedural provision of Act by allowing construction of flood control channel in face of
county's failure to transfer mitigation lands or by refusing to reinitiate consultation with Fish and Wildlife Service.
Sierra Club v Marsh (1987, CA9 Cal) 816 F2d 1376, 17 ELR 20717.
District Court properly denied preliminary injunction requested by conservation group seeking to stop controlled
hunting of deer in bald eagle preserve where group made no showing that hunt caused actual harm through eagles' ingestion of lead shot in deer killed but not recovered during hunt. American Bald Eagle v Bhatti (1993, CA1 Mass) 9
F3d 163, 24 ELR 20173.
Railroad's acts of striking and killing grizzly bears attracted to accidental corn spillages along its tracks amounted
to taking for purposes of Endangered Species Act; however, railroad's efforts to clean up spill, and facts that bears had
not become habituated to area and that no bears had been killed since clean up made likelihood of future deaths insufficient for injunction. National Wildlife Fed'n v Burlington N. R.R. (1994, CA9 Mont) 23 F3d 1508, 94 CDOS 3220, 94
Daily Journal DAR 6129, 24 ELR 20802 (criticized in Greenpeace v National Marine Fisheries Serv. (2000, WD Wash)
106 F Supp 2d 1066, 51 Envt Rep Cas 1119).
In environmental organization's action against Bureau of Land Management for failing to consult Fish and Wildlife
service regarding impact of Bureau's management schedule for wilderness study area, district court did not err in denying injunctive relief to compel consultation with Service and holding claim moot where, after Bureau issued management schedule, it consulted with Service and received Service's written concurrence with schedule. Southern Utah Wilderness Alliance v Smith (1997, CA10 Utah) 110 F3d 724, 44 Envt Rep Cas 1460, 27 ELR 21035.
Land and Resource Management Plans (LRMP) were framework for making later project decisions rather than collection of project decisions, and standards, guidelines, policies, criteria, land designations, and like appearing within
LRMP did not constitute "action" requiring consultation under 16 USCS § 1536(a)(2); instead, activities or programs
authorized, funded, or carried out, by U.S. Forest Service were "action" of which § 1536(a)(2) spoke; therefore, because
groups had not alleged any activity, project, or program authorized, funded, or carried out by Forest Service that constituted "action" within § 1536(a)(2), Forest Service had no duty to consult with Fish and Wildlife Service, and district
court's dismissal of request for mandatory injunctive relief was affirmed. Forest Guardians v Forsgren (2007, CA10
NM) 478 F3d 1149, 64 Envt Rep Cas 1225, 37 ELR 20053.
Plaintiffs are denied preliminary injunction against Navy's practice bombing on island of Vieques, even though
they cite numerous defects in Navy's biological assessment for U.S. Fish and Wildlife Service under 16 USCS §
1540(g), where Navy's counter-arguments make plaintiffs unlikely to succeed on their challenge, because court cannot
find that balancing of relative hardships favors plaintiffs at this stage of proceedings. Water Keeper Alliance v United
States DOD (2001, DC Puerto Rico) 152 F Supp 2d 155, affd (2001, CA1 Puerto Rico) 271 F3d 21, 53 Envt Rep Cas
1481, 32 ELR 20314.
Conservation organizations were granted injunction against defendants, Secretary of Interior and United States Fish
and Wildlife Service, requiring formal consultation, in conjunction with issuance of biological opinion, prior to taking
of any agency action that might affect lynx or its critical habitat, after defendants declared lynx to be threatened rather
than endangered and failed to designate critical habitat. Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp
2d 9, remanded (2004, App DC) 89 Fed Appx 273.
Claimants failed to meet their burden for preliminary injunction in citizen suit under Endangered Species Act, 16
USCS §§ 1531 et seq., specifically 16 USCS § 1540(g), to prevent county from authorizing public motor vehicle traffic
on county beaches because they did not show that daytime vehicle traffic was reasonably likely to result in taking of
endangered sea turtles in violation of 16 USCS § 1538(a)(1)(B); there was no evidence that hatchlings perished after
being stuck in tire ruts or that false crawls occurred because of tire ruts; further, effects of recent hurricanes had more of
Page 203
16 USCS § 1540
effect on turtle nesting because of storm surges and excess sand deposits burying nests. Leatherback Sea Turtle v Flagler County Bd. of County Comm'rs (2004, MD Fla) 359 F Supp 2d 1209.
Environmental groups were entitled to permanent injunction, preventing FEMA from issuing flood insurance for
any new development in suitable habitats of several endangered and threatened species in Florida Keys until FEMA and
U.S. Fish and Wildlife Service had complied with requirements of Endangered Species Act, 16 USCS §§ 1531 et seq.,
and Administrative Procedure Act, 5 USCS §§ 551 et seq. and §§ 701 et seq., because environmental harm was likely
absent permanent injunction and, even if public interest factors were relevant, public interest relating to protection of
endangered species outweighed all other interests, including cost of development in Florida Keys. Fla. Key Deer v
Brown (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas
1225, 38 ELR 20083, 21 FLW Fed C 515.
FEMA had authority to limit availability of flood insurance in suitable habitats of several endangered and threatened species in Florida Keys because FEMA had sufficient discretion to implement National Flood Insurance Program
in manner consistent with Endangered Species Act, 16 USCS §§ 1531 et seq., and FEMA's discretion, or lack thereof, to
curtail availability of flood insurance within otherwise eligible community did not limit court's ability to enjoin FEMA
from issuing flood insurance to new developments within suitable habitat of listed species during remand period. Fla.
Key Deer v Brown (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890, affd (2008, CA11 Fla) 522 F3d 1133, 66
Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.
Where environmental groups sought permanent injunction, preventing FEMA from issuing flood insurance for any
new development in suitable habitats of several endangered and threatened species in Florida Keys until FEMA and
U.S. Fish and Wildlife Service had complied with requirements of Endangered Species Act, 16 USCS §§ 1531 et seq.,
and Administrative Procedure Act, 5 USCS §§ 551 et seq. and §§ 701 et seq., granting motion would not require FEMA
to violate Congress' mandate that FEMA make flood insurance available because endangered species had priority over
primary missions of federal agencies. Fla. Key Deer v Brown (2005, SD Fla) 386 F Supp 2d 1281, 18 FLW Fed D 890,
affd (2008, CA11 Fla) 522 F3d 1133, 66 Envt Rep Cas 1225, 38 ELR 20083, 21 FLW Fed C 515.
Because United States Forest Service's issuance of 16 USCS § 1536(d) determination qualified as affirmative
"agency action" under 16 USCS § 1536(a)(2), court had authority to issue injunction after reinitiation of consultation to
prohibit activities that potentially violated ESA during consultation process; court prohibited all snowmobiling and
snowmobile trail grooming within designated caribou recovery area inside Idaho Panhandle National Forest until completion of formal consultation. Defenders of Wildlife v Martin (2006, ED Wash) 454 F Supp 2d 1085, 64 Envt Rep Cas
1337, summary judgment gr, claim dismissed, claim allowed, injunction gr (2007, ED Wash) 2007 US Dist LEXIS
13061.
Court denied conservationist's motion for preliminary injunction where (1) because conservationist presented no
conclusive evidence that demonstrated that protected whales had, since 2002, become entangled in state coastal waters
or in fishing gear licensed by officers, conservationist had not made "strong showing" of likelihood of success on merits
of his underlying claim that officers violated Endangered Species Act (ESA), (2) recent change in state fishing regulations undermined contention that whale entanglements were inevitable and because injunctive relief could have been
granted only upon showing that alleged activity would have "actually" caused harm to endangered animals, and (3)
presumption in cases arising under ESA was that balancing of harms and effect on public interest tipped in favor of
protecting endangered animals; however, consistent with equitable powers conferred by 15 USCS § 1540(g)(1), court
entered order that would ensure temporary monitoring of threat posed to endangered whales by fixed fishing gear without unduly disrupting commercial fishing industry. Strahan v Pritchard (2007, DC Mass) 473 F Supp 2d 230, motion
den, summary judgment gr, partial summary judgment den, motion den, as moot (2010, DC Mass) 2010 US Dist LEXIS
133469.
Injunctive remedy enjoining state from allowing taking of lynx, as expressly authorized by 16 USCS §
1540(g)(1)(A), is well within federal district court's traditional equitable injunctive powers, and acting alone does not
injure private plaintiffs' likelihood of success on merits. Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d
70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC
Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009, DC Me) 668 F Supp 2d 254, 71 Envt
Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.
Fisherman "captured" humpback whale when it became entangled in his lobster gear, and although whale eventually broke free of fisherman's trawl and was later disentangled from gear stuck in its baleen, it was "taken captive" by
fisherman's gear for at least some period of time; therefore, fisherman violated 16 USCS § 1538 when humpback whale
Page 204
16 USCS § 1540
became entangled, and fact that taking was accidental was irrelevant; however, because there was no risk of irreparable
harm to humpback whale in absence of injunction and burden of injunction upon fisherman, being prevented from pursuing his livelihood, outweighed its benefits, court refused to enter injunction under 16 USCS § 1540(g)(1)(A). Strahan
v Holmes (2009, DC Mass) 595 F Supp 2d 161.
Federal agencies were entitled to dismissal of action arising from their seizure of sport-hunted leopard trophies that
were brought into United States in violation of 16 USCS § 1538(a), (c); hunters' claim for alleged violation of 16 USCS
§ 1537 could not be brought under 16 USCS § 1540 (g)(1)(A) because hunters' allegation that agencies failed to cooperate with foreign nations' conservation programs alleged nothing more than maladministration of ESA, and adjudicating
error on part of Secretary of Interior in administering ESA would effect wholesale abrogation of final agency action
requirement under 5 USCS § 704. Conservation Force v Salazar (2009, ND Cal) 677 F Supp 2d 1203.
Unpublished Opinions
Unpublished: District court did not abuse its discretion in denying injunctive relief under Endangered Species Act,
16 USCS § 1540(g)(1)(A), to residents who sought to enjoin state agencies from enforcing removal of mobile homes
that were located in state park where residents failed to show that violation of Act was likely to occur in connection with
removal of their mobile homes. Pulaski v Chrisman (2005, CA9 Cal) 127 Fed Appx 993.
23. Scope and standard of review
Court of Appeals will review attorney fee awards under 16 USCS § 1540(g)(4) for abuse of discretion, and to see if
District Court applied correct legal standard. Carson-Truckee Water Conservancy Dist. v Secretary of Interior (1984,
CA9 Nev) 748 F2d 523, 21 Envt Rep Cas 2115, 15 ELR 20026, cert den (1985) 471 US 1065, 85 L Ed 2d 497, 105 S Ct
2139, 22 Envt Rep Cas 1784 and (ovrld on other grounds by Marbled Murrelet v Babbitt (1999, CA9 Cal) 182 F3d
1091, 99 CDOS 5408, 99 Daily Journal DAR 6899, 48 Envt Rep Cas 1983, 49 Envt Rep Cas 2015, 29 ELR 21326) and
(ovrld on other grounds as stated in Klamath Siskiyou Wildlands Ctr. v Babbitt (2000, DC Or) 105 F Supp 2d 1132, 30
ELR 20767) and (criticized on other grounds in Envtl. Prot. Info. Ctr. v Pac. Lumber Co. (2002, ND Cal) 229 F Supp 2d
993, 55 Envt Rep Cas 1886).
District Court may prohibit or condition action by defendants pending their formulation of proper timber management plan for national forest that adequately addresses effects of contemplated actions on endangered species' habitat;
however, District Court may not in advance mandate specific feature of such plan. Sierra Club v Yeutter (1991, CA5
Tex) 926 F2d 429, 21 ELR 20755, summary judgment gr sub nom Sierra Club v Madigan (1992, ED Tex) 1992 US Dist
LEXIS 21494, judgment entered (1993, WD Tex) 36 Envt Rep Cas 1533 and adopted, in part, motion gr, summary
judgment den sub nom Sierra Club v Espy (1993, ED Tex) 822 F Supp 356, 24 ELR 20051, revd on other grounds
(1994, CA5 Tex) 18 F3d 1202, 38 Envt Rep Cas 1421, 28 FR Serv 3d 1293, 24 ELR 20888 and vacated, remanded on
other grounds (1994, CA5 Tex) 38 F3d 792, 25 ELR 20426, reh den (1994, CA5 Tex) 1994 US App LEXIS 37197, subsequent app (1995, CA5 Tex) 67 F3d 90, 41 Envt Rep Cas 2048, 26 ELR 20160, judgment entered (1997, ED Tex) 974
F Supp 905, 28 ELR 20344, affd (1999, CA5 Tex) 185 F3d 349, 49 Envt Rep Cas 1204, 29 ELR 21432, motion den,
motion gr, motion to strike gr, in part (1999, ED Tex) 1999 US Dist LEXIS 17306 and reh, en banc, gr, vacated (2000,
CA5 Tex) 204 F3d 580 and vacated, remanded (2000, CA5 Tex) 228 F3d 559, 51 Envt Rep Cas 1385, 31 ELR 20135,
reh den (2000, CA5 Tex) 2000 US App LEXIS 31850 and cert den (2001, App DC) 2001 US App LEXIS 4010.
Because organizations brought challenge under 16 USCS § 1540(g)(1), citizen-suit provision of Endangered Species Act (ESA), to amended regulations adopted by Bureau of Land Management regarding grazing on public lands,
court looked to ESA rather than Administrative Procedure Act (APA); however, because ESA contained no internal
standard of review, "arbitrary and capricious" standard under 5 USCS § 706 applied. Western Watersheds Project v
Kraayenbrink (2010, CA9 Idaho) 620 F3d 1187, 71 Envt Rep Cas 1449, 40 ELR 20235.
16 USCS § 1540(g)(1) does not direct trial courts to conduct de novo review in adjudicating citizens suits, and thus
appropriate standard of review under § 1540(g)(1) is arbitrary and capricious standard provided by 5 USCS § 706(2)(A).
Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v Peterson (1982, App DC) 222 US App DC 228, 685
F2d 678, 17 Envt Rep Cas 1844, 12 ELR 21058.
"Arbitrary or capricious" standard of judicial review provisions of Administrative Procedure Act, 5 USCS § 706,
applies in citizen suit to actions taken pursuant to Endangered Species Act (16 USCS §§ 1531 et seq.). National
Audubon Soc. v Hester (1986, DC Dist Col) 627 F Supp 1419, 16 ELR 20445, revd without op (1986, App DC) 791 F2d
210 and revd on other grounds (1986, App DC) 16 ELR 20940.
Page 205
16 USCS § 1540
Discovery is limited to administrative record in environmental groups' citizen suit challenging EPA's stewardship
of Virginia's rivers, streams, and coastlines, where 16 USCS § 1540(g) and 33 USCS § 1365(a) provide for judicial review via citizen suit but do not set forth standard for that review, because limiting judicial review to administrative record in typical citizen suits is consistent with sensible reluctance to involve judiciary too deeply in administrative decisionmaking, but circumstances of particular case may justify expanding record and groups may make more particularized request for extra-record discovery. American Canoe Ass'n v United States EPA (1999, ED Va) 46 F Supp 2d 473,
29 ELR 21315.
Lawsuit brought by environmental group that challenged procedure used by Secretary of Department of Interior
and Fish and Wildlife Service to circumvent notice and hearing procedure set forth in 16 USCS § 1533(b)(3), part of
Endangered Species Act, 16 USCS § 1531 et seq, was citizens' suit brought pursuant to 16 USCS § 1540 and scope of
review by court was standard of review set forth for agency action in 5 USCS § 706 (2) (A), part of Administrative Procedure Act, 5 USCS §§ 701 to 706. Am. Lands Alliance v Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137,
reconsideration gr, vacated, in part on other grounds (2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist
Col) 2004 US Dist LEXIS 27533, dismd on other grounds (2004, App DC) 2004 US App LEXIS 15243.
United States Fish and Wildlife Service's (FWS) exclusions of critical habitat pursuant to § 4(b)(2) of Endangered
Species Act, 16 USCS § 1533(b)(2), had to be remanded to FWS for further action and consideration consistent with all
applicable laws and with reasoning of court's order. Home Builders Ass'n v United States Fish & Wildlife Serv. (2006,
ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226, motion withdrawn, motion den, remanded on other grounds (2007, ED
Cal) 2007 US Dist LEXIS 5208.
In 16 USCS § 1540(g) citizen suit wherein plaintiffs were seeking 16 USCS § 1533 endangered species listing for
Gunnison sage-grouse under Endangered Species Act (ESA), 16 USCS §§ 1531-1544, two stipulated documents from
prior case should have been included in agency record on appeal; twenty-eight remaining documents provided on Freedom of Information Act (FOIA), 5 USCS § 552, request consisted of maps showing species' limited range, proposals for
critical habitat which hinged on listing, and listing drafts with accompanying public outreach materials; documents were
adverse to agency's final determination and defendant Fish and Wildlife Service acknowledged that they represented all
public documents considered in decision-making process; thus court found that they should have been provided as part
of record. County of San Miguel v Kempthorne (2008, DC Dist Col) 587 F Supp 2d 64.
Claims arising directly under Endangered Species Act Citizen Suit Provision at 16 USCS § 1540(g)(1)(A), based
upon events occurring in aftermath of agency decisions, are not limited by Administrative Procedure Act scope of review. Or. Natural Desert Ass'n v Kimbell (2009, DC Or) 593 F Supp 2d 1217, motion gr, in part, injunction gr, in part
(2009, DC Or) 2009 US Dist LEXIS 50361.
Unpublished Opinions
Unpublished: Letter of Secretary of Department of Interiors challenged by plaintiffs did not constitute failure to
perform "act or duty;" rather, letter said nothing more about emergency listing than that Secretary's "initial review" of
petition suggested that circumstances did not justify emergency listing, and, thus, was nothing more than gratuitous status update on ongoing and incomplete process, which, at time, did not compel conduct by anyone. Inst. for Wildlife
Prot. v Norton (2005, CA9 Wash) 149 Fed Appx 627.
24. Costs
In Freedom of Information Act request for documents related to administrative record of Fish and Wildlife Service's decision not to list western pond turtle under Endangered Species Act, 16 USCS §§ 1531 et seq., public interest
environmental organizations showed prima facie case for waiver of duplication fees; fact that Service had public reading room for documents located 100 miles from organizations was, alone, not sufficient to rebut prima facie case.
Friends of the Coast Fork v United States DOI (1997, CA9 Or) 110 F3d 53, 97 CDOS 2222, 97 Daily Journal DAR
4065, 27 ELR 21047.
Under Endangered Species Act, 16 USCS §§ 1531-1544, defendants are not entitled to costs and fees unless plaintiff's litigation was frivolous. Ocean Conservancy, Inc. v Nat'l Marine Fisheries Order Serv. (2004, CA9) 59 FR Serv 3d
491.
Because plaintiffs' case was not frivolous and under Endangered Species Act (ESA), 16 USCS §§ 1531-1544, defendants were not entitled to costs and fees unless plaintiff's litigation was frivolous, defendants were not entitled to
Page 206
16 USCS § 1540
their costs on appeal under Fed. R. App. P. 39(a)(1) because provisions of ESA overrode Rule 39. Ocean Conservancy,
Inc. v Nat'l Marine Fisheries Order Serv. (2004, CA9) 59 FR Serv 3d 491.
Plaintiff is not entitled to award of costs by District Court where plaintiffs' claim for appellate printing costs and
fees were not allowed under appellate court's mandate issued in case, items were not claimed in either of appellate
courts, and neither court awarded such items. Hill v Tennessee Valley Authority (1979, ED Tenn) 84 FRD 226, 29 FR
Serv 2d 691.
Plaintiff was entitled to out-of-pocket cost, and expenses not included in Bill of Costs consisting of depositions
taken in case but not actually used in trial and therefore not includable in Bill, and travel expenses of counsel and expert
witnesses to prepare for trial, as opposed to travel expenses for trial itself, which costs were included in Bell. Palila v
Hawaii Dep't of Land & Natural Resources (1987, DC Hawaii) 118 FRD 125.
Pro se plaintiff who brought action against commercial lobster fisherman who had committed taking of humpback
whale was not entitled to recover costs against fisherman pursuant to 16 USCS § 1540(g)(4) because plaintiff was entitled to trial transcript at government expense pursuant to 28 USCS § 753(f), plaintiff did not specify any other expenses
that he incurred in litigating case, and pro se litigants were not entitled to attorney's fees. Strahan v Holmes (2010, DC
Mass) 686 F Supp 2d 129.
25. Attorney fees
Interpretation of word "appropriate" in 42 USCS § 7607(f), under which party must have some success on merits
before it becomes eligible for attorneys' fee award, controls construction of same term in 16 USCS § 1540(g)(4).
Ruckelshaus v Sierra Club (1983) 463 US 680, 77 L Ed 2d 938, 103 S Ct 3274, 19 Envt Rep Cas 1249, 13 ELR 20664.
Court of Appeals will review attorney fee awards under 16 USCS § 1540(g)(4) for abuse of discretion, and to see if
District Court applied correct legal standard. Carson-Truckee Water Conservancy Dist. v Secretary of Interior (1984,
CA9 Nev) 748 F2d 523, 21 Envt Rep Cas 2115, 15 ELR 20026, cert den (1985) 471 US 1065, 85 L Ed 2d 497, 105 S Ct
2139, 22 Envt Rep Cas 1784 and (ovrld on other grounds by Marbled Murrelet v Babbitt (1999, CA9 Cal) 182 F3d
1091, 99 CDOS 5408, 99 Daily Journal DAR 6899, 48 Envt Rep Cas 1983, 49 Envt Rep Cas 2015, 29 ELR 21326) and
(ovrld on other grounds as stated in Klamath Siskiyou Wildlands Ctr. v Babbitt (2000, DC Or) 105 F Supp 2d 1132, 30
ELR 20767) and (criticized on other grounds in Envtl. Prot. Info. Ctr. v Pac. Lumber Co. (2002, ND Cal) 229 F Supp 2d
993, 55 Envt Rep Cas 1886).
Twelve factors must be considered in determination of reasonable attorneys fees to be awarded under 16 USCS §
1540(g)(4); those criteria are: (1) time and labor required; (2) novelty and difficulty of questions involved; (3) skill requisite to perform legal service properly; (4) preclusion of other employment by attorney due to acceptance of case; (5)
customary fees; (6) whether fee is fixed or contingent; (7) time limitations imposed by client or circumstances; (8)
amount involved and results obtained; (9) experience, reputation and ability of attorney; (10) "undesirability" of case;
(11) nature and length of professional relationship with client; and (12) awards in similar cases; failure to consider these
factors in making award of reasonable attorneys' fees constitutes abuse of discretion. Palila (Psittirostra Bailleui) v
Hawaii Dep't of Land & Natural Resources (1981, DC Hawaii) 512 F Supp 1006, 16 Envt Rep Cas 1309.
Starting point for determining reasonable fee award is to multiply number of hours reasonably expended on litigation by reasonable hourly rate of compensation and in arriving at this court should be guided by time and labor required,
novelty and difficulty of questions involved, skill required to perform legal service properly, preclusion of other employment by attorney due to acceptance of case, customary fee, whether fee is fixed or contingent, time limitations imposed by client or circumstances, amount involved in results obtained, experience, reputation, and ability of attorneys,
undesirability of case, nature and length of professional relationship with client, and awards in similar cases. Palila v
Hawaii Dep't of Land & Natural Resources (1987, DC Hawaii) 118 FRD 125.
When there has been no judicial determination on merits of action under 16 USCS § 1540(g)(4), plaintiff who
brought action may be considered prevailing party for possible award of attorney's fees if can be shown that: (1) lawsuit
is causally linked to securing relief obtained, and (2) defendant's conduct in response to lawsuit was required by law.
Southwest Ctr. for Biological Diversity v Babbitt (2000, DC NM) 108 F Supp 2d 1209.
Where sportsmen prevailed in their action under Endangered Species Act challenging non-discretionary act by National Marine Fisheries Service, they were entitled to all reasonable attorneys' fees and costs pursuant to 16 USCS §
1540(g)(4). Fed'n of Fly Fishers v Daley (2002, ND Cal) 200 F Supp 2d 1181.
Page 207
16 USCS § 1540
Non-profit corporations were entitled to attorneys' fees and interest in their action against logging companies where
injunction was entered preventing logging companies from logging in area of old growth redwood forest and restraining
order established application of § 7(d) of Endangered Species Act, 16 USCS § 1536(d), to private incidental take permit
applications as well as clarification that § 7(d) was triggered by informal consultation. Envtl. Prot. Info. Ctr. v Pac.
Lumber Co. (2002, ND Cal) 229 F Supp 2d 993, 55 Envt Rep Cas 1886, affd (2004, CA9 Cal) 103 Fed Appx 627.
While plaintiffs' litigation substantially contributed to change in substance of defendants' conduct fairly within purview of Endangered Species Act, amount of time and effort claimed to achieve result was deemed excessive; therefore,
plaintiffs were awarded 20 percent of attorneys' fees requested. Conservation Law Found., Inc. v Evans (2003, DC
Mass) 56 Envt Rep Cas 1757.
Pursuant to 16 USCS § 1540(g)(4), interest group representing landowners was denied attorney's fees, even though
it arguably played role in Secretary of Interior's decision to reconsider certain "not prudent" determinations regarding
critical habitat for certain plant species, where its arguments were made in substantially same way by Secretary and did
not lead court to novel or markedly different interpretation or implementation of Endangered Species Act than it would
have reached in their absence; thus, case did not warrant departure from traditional rule of each party bearing its own
expenses. Bldg. Indus. Legal Def. Found. v Norton (2003, SD Cal) 259 F Supp 2d 1081, 56 Envt Rep Cas 1782.
26.--Particular circumstances
Award of attorney fees to conservation foundation, under "whenever appropriate" standard of Endangered Species
Act (ESA), 16 USCS § 1540, was not appropriate, where court granted preliminary injunction and awarded fees on
claim under Outer Continental Shelf Lands Act (43 USCS §§ 1331 et seq.), but did not reach claim under ESA, which
required different proof and provided for different remedies. Conservation Law Foundation, Inc. v Secretary of Interior (1986, CA1 Mass) 790 F2d 965, 24 Envt Rep Cas 1731, 16 ELR 20722.
Endangered Species Act, 16 USCS §§ 1531-1544, claim that developer's activities and planned project would harass bald eagles by disrupting their normal behavioral patterns became moot when bald eagle was delisted from endangered species list while case was on appeal; although judgment was vacated, award of attorney fees to organizations
which brought citizen suit was allowed. Ctr. for Biological Diversity v Marina Point Dev. Co. (2009, CA9 Cal) 560 F3d
903.
Environmental groups' claim against developer under 16 USCS § 1538, which was that developer's activities and
planned project would harass bald eagles by disrupting their normal behavioral patterns, became moot after district
court's judgment was issued in favor of groups and while case was on appeal because Fish and Wildlife Service delisted
bald eagle; however, mootness of claim did not affect district court's award of attorney fees to groups under 16 USCS §
1540(g)(4). Ctr. for Biological Diversity v Marina Point Dev. Co. (2009, CA9 Cal) 566 F3d 794.
Several parties, including town and wildlife federation, who unsuccessfully challenged decision of Secretary to
conduct lease sale on outer continental shelf, are not entitled to attorney fees under either 16 USCS § 1540(g)(4) or 43
USCS § 1349(a)(5) since issues raised in lawsuit lacked required importance, novelty, and complexity, and suit helped
little in interpretation and implementation of federal statutes. Kaktovik v Watt (1982, App DC) 223 US App DC 39, 689
F2d 222, 17 Envt Rep Cas 2097, 12 ELR 21103.
Request for attorney's fees is denied where over one year has passed since affirmance of District Court's opinion
and no reason has been given for delay in seeking such fees, and where, aside from issue of timeliness, case is not in
which award of fees is "appropriate" as that term is understood in 16 USCS § 1540(g)(4). Hill v Tennessee Valley Authority (1979, ED Tenn) 84 FRD 226, 29 FR Serv 2d 691.
Survival of endangered species, bowhead whale, and preservation of North Slope environment are concerns directly
addressed in Outer Continental Shelf Land Act (43 USCS §§ 1331 et seq.) and Endangered Species Act (16 USCS §§
1531 et seq.), and as case seeking their preservation presents novel, complex, and manifestly unclear questions concerning interrelationships between ESA and OCSLA based on well-founded, not frivolous, allegations, award of attorneys' fees is clearly in public interest. North Slope Borough v Andrus (1981, DC Dist Col) 507 F Supp 106, 15 Envt
Rep Cas 1793, 11 ELR 20293.
Conservation Foundation is entitled to $ 92,247 award of attorney fees under 16 USCS § 1540 and 43 USCS § 1349
where foundation assisted state in successful claim under Outer Continental Shelf Lands Act (42 USCS § 1349) and
Endangered Species Act (16 USCS § 1540) that govern leasing activity, even though Foundation could not allege violations of OCSLA on its own behalf, because Foundation's efforts were necessary and important factor in achieving suc-
Page 208
16 USCS § 1540
cessful result; Foundation is not entitled under "lodestar" approach to recover for hours spent for duplicative consultative or supervisory work but is entitled to award adjustment of 10 percent for rendering services that were superior in
every respect. Conservation Law Foundation, Inc. v Watt (1984, DC Mass) 654 F Supp 706.
Successful challengers of pesticide registration are entitled to attorney's fees under 16 USCS § 1540(g)(4), where
(1) they prevailed on several issues and (2) government's position was not substantially justified; award is reduced by 15
percent based on efforts not related to successful claims. Defenders of Wildlife v Administrator, Environmental Protection Agency (1988, DC Minn) 700 F Supp 1028, 19 ELR 20611.
Animal rights groups are not entitled to recover attorney's fees or costs under 16 USCS § 1540(g)(4), where court
never granted groups leave to intervene prior to dropping of suit by original plaintiffs, even though court granted motions after dismissal of case "for sole purpose of allowing intervenors to demonstrate their entitlement to attorneys' fees
and costs," because groups were never "parties" to case when it was litigated and are not covered by fee-shifting provision. Putting People First v Babbitt (1993, DC Dist Col) 838 F Supp 10, 24 ELR 20657.
Fees will not be awarded environmental group which sued Interior officials, where officials were working on recovery plan for Bradshaw's Desert Parsley one year prior to lawsuit and had final recovery plan approved about 14
months after litigation began, because group failed to show sufficient causal connection between their lawsuit and publication of recovery plan. Oregon Natural Resource Council v Turner (1994, DC Or) 863 F Supp 1277, 25 ELR 20380.
Award of attorney fees to environmental group was appropriate where plaintiff's success substantially contributed
to goals of Endangered Species Act by ensuring conservation of one of few remaining marbled murrelet nesting habitats
in state by undertaking unpopular case, and where plaintiff served public interest by assisting interpretation and implementation of ESA as applied to scope of activities that private landowner may engage in on his own land. Marbled
Murrelet v Pacific Lumber Co. (1995, ND Cal) 163 FRD 308, 41 Envt Rep Cas 1157.
Plaintiffs in citizen suit under 16 USCS § 1540(g) to compel ruling on their listing petition were not prevailing parties entitled to attorney's fees, where agency action on plaintiffs' listing petition would have been made, pursuant to listing priority guidelines issued in response to congressional funding moratorium, with or without plaintiffs' lawsuit. Biodiversity Legal Found. v Babbitt (1999, DC Colo) 119 F Supp 2d 1129.
Award of attorney's fees and costs under 16 USCS § 1540(g)(4) to plaintiffs who brought action against Department
of Interior under Endangered Species Act furthered purposes of Act, even though Department complied with Act prior
to outcome of litigation, as denial of fees would encourage Department to attempt to avoid paying fees by delaying litigation until it became moot. Klamath Siskiyou Wildlands Ctr. v Babbitt (2000, DC Or) 105 F Supp 2d 1132, 30 ELR
20767.
Environmental groups were entitled to recover attorney's fees under 16 USCS § 1540(g), where groups' action was
substantial catalytic factor in securing Army Corps of Engineers' commitment to reinitiate consultation for 2 of 3 endangered fish species and for Corps' adoption of appropriate environmental baselines for species, and though there was
no judicial decision in groups' favor, Corps originally had resisted consultation with Fish and Wildlife Service, but finally responded to groups' settlement request inquiries by agreeing to include all 3 species and to follow schedule proposed by groups. Southwest Ctr. for Biological Diversity v Carroll (2001, CD Cal) 182 F Supp 2d 944.
National Resources Defense Counsel (NRDC) was not awarded attorney fees pursuant to 16 USCS § 1540(g)(4),
statutory fee-shifting provision of Endangered Species Act, in its action against Department of Interior and Fish and
Wildlife Service to list Beluga Sturgeon as endangered species because NRDC failed to satisfy one threshold of catalyst
test. NRDC v Norton (2003, SD NY) 57 Envt Rep Cas 1457.
Where plaintiffs had successfully established that there was causal relationship between litigation brought and
practical outcomes and that there was legal basis for claim under Endangered Species Act, plaintiffs were entitled to
attorney's fees and costs with some modifications on amounts requested. Vieques Conservation & Historical Trust, Inc.
v Martinez (2004, DC Puerto Rico) 313 F Supp 2d 40, 58 Envt Rep Cas 1923.
Supreme Court's decision in Buckhannon does not prohibit use of catalyst test as basis for awarding attorney's fees
and costs under "whenever appropriate" fee-shifting provision of Endangered Species Act. Vieques Conservation &
Historical Trust, Inc. v Martinez (2004, DC Puerto Rico) 313 F Supp 2d 40, 58 Envt Rep Cas 1923.
Environmental groups were not entitled to attorney fees under 16 USCS § 1540(g)(4), in their action seeking to
compel United States Fish and Wildlife Service to list California spotted owl as endangered and threatened species un-
Page 209
16 USCS § 1540
der 16 USCS § 1533; groups failed to realize goals of their lawsuit, and their success in obtaining timely consideration
of subsequent listing petition could not be characterized as partial success for purposes of catalyst doctrine of fee shifting. Ctr. for Biological Diversity v Scarlett (2006, ND Cal) 452 F Supp 2d 966.
In case arising under 16 USCS § 1540(g)(1)(C), conservation groups' request for attorneys' fees and costs in amount
of $ 114.883.18 was reduced to $ 107, 722.63 because, while they were entitled to compensation for work their attorneys performed on all counts of amended complaint, they did not show that district court should depart from standard
Laffey Matrix based on complexity of case; while conservation groups had rejected § 40,000 Fed. R. Civ. P. 68 offer of
judgment made by Secretary of U.S. Department of Interior and Director of U.S. Fish and Wildlife Service, they were
still entitled to court's award of attorneys' fees and costs since they were entitled to attorneys' fees and costs far in excess
of $ 40,000 offer of judgment. Am. Lands Alliance v Norton (2007, DC Dist Col) 525 F Supp 2d 135, 66 Envt Rep Cas
1706.
Unpublished Opinions
Unpublished: Watershed committee's lawsuit contributed to ranchers' agreement to install head gate and fish screen
and because ranchers were required by law to install head gate and fish screen, their doing so was not gratuitous act; as
result, award of attorney's fees in favor of committee under Endangered Species Act (ESA), was appropriate. Idaho
Watersheds Project v Jones (2007, CA9 Idaho) 253 Fed Appx 684.
12 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 § 1541
§ 1541. Endangered plants
The Secretary of the Smithsonian Institution, in conjunction with other affected agencies, is authorized and directed to
review (1) species of plants which are now or may become endangered or threatened and (2) methods of adequately
conserving such species, and to report to Congress, within one year after the date of the enactment of this Act [enacted
Dec. 28, 1973], the results of such review including recommendations for new legislation or the amendment of existing
legislation.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 12, 87 Stat. 901.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Page 210
16 USCS § 1541
Effective date of section:
This section is effective on the date of its enactment on Dec. 28, 1973, as provided by Act Dec. 28, 1973, P.L.
93-205, § 16, 87 Stat. 903, which appears as 16 USCS § 1531 note.
NOTES:
Research Guide:
Law Review Articles:
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
13 of 15 DOCUMENTS
UNITED STATES CODE SERVICE
Copyright © 2011 Matthew Bender & Company,Inc.
a member of the LexisNexis Group (TM)
All rights reserved.
*** CURRENT THROUGH PL 112-14, APPROVED 5/26/2011 ***
TITLE 16. CONSERVATION
CHAPTER 35. ENDANGERED SPECIES
Go to the United States Code Service Archive Directory
16 USCS § 1542
§ 1542. Authorization of appropriations
(a) In general. Except as provided in subsections (b), (c), and (d), there are authorized to be appropriated-(1) not to exceed $ 35,000,000 for fiscal year 1988, $ 36,500,000 for fiscal year 1989, $ 38,000,000 for fiscal year
1990, $ 39,500,000 for fiscal year 1991, and $ 41,500,000 for fiscal year 1992 to enable the Department of the Interior
to carry out such functions and responsibilities as it may have been given under this Act;
(2) not to exceed $ 5,750,000 for fiscal year 1988, $ 6,250,000 for each of fiscal years 1989 and 1990, and $
6,750,000 for each of fiscal years 1991 and 1992 to enable the Department of Commerce to carry out such functions and
responsibilities as it may have been given under this Act; and
(3) not to exceed $ 2,200,000 for fiscal year 1988, $ 2,400,000 for each of fiscal years 1989 and 1990, and $
2,600,000 for each of fiscal years 1991 and 1992, to enable the Department of Agriculture to carry out its functions and
responsibilities with respect to the enforcement of this Act and the Convention which pertain to the importation or exportation of plants.
(b) Exemptions from Act. There are authorized to be appropriated to the Secretary to assist him and the Endangered
Species Committee in carrying out their functions under sections [section] 7(e), (g), and (h) [16 USCS § 1536(e), (g),
(h)] not to exceed $ 600,000 for each of fiscal years 1988, 1989, 1990, 1991, and 1992.
Page 211
16 USCS § 1542
(c) Convention implementation. There are authorized to be appropriated to the Department of the Interior for purposes
of carrying out section 8A(e) [16 USCS § 1537a(e)] not to exceed $ 400,000 for each of fiscal years 1988, 1989, and
1990, and $ 500,000 for each of fiscal years 1991 and 1992, and such sums shall remain available until expended.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 15, 87 Stat. 903; June 30, 1976, P.L. 94-325, § 1, 90 Stat. 724; Nov. 10, 1978, P.L.
95-632, § 9, 92 Stat. 3762; Dec. 28, 1979, P.L. 96-159, § 8, 93 Stat. 1230; Oct. 13, 1982, P.L. 97-304, § 8[(a)], 96 Stat.
1425; Oct. 7, 1988, P.L. 100-478, Title I, § 1009, 102 Stat. 2312.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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.
Explanatory notes:
The bracketed word "section" has been inserted in subsection (b) as the word probably intended by Congress.
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 June 30, 1976, redesignated subpara. (A) as para. (1) and, in para. (1) as so redesignated, substituted "not to
exceed $ 10,000,000 for the fiscal year ending June 30, 1976, not to exceed $ 1,800,000 for the fiscal transitional period
ending September 30, 1976, and not to exceed a total of $ 25,000,000 for the fiscal year ending September 30, 1977 and
the fiscal year ending September 30, 1978," for "not to exceed $ 4,000,000 for fiscal year 1974, not to exceed $
8,000,000 for fiscal year 1975 and not to exceed $ 10,000,000 for fiscal year 1976,", and redesignated subpara. (B) as
para. (2), and, in para. (2) as so redesignated, substituted "not to exceed $ 2,000,000 for the fiscal year ending June 30,
1976, not to exceed $ 500,000 for the fiscal transitional period ending September 30, 1976, and not to exceed a total of
$ 5,000,000 for the fiscal year ending September 30, 1977 and the fiscal year ending September 30, 1978," for "not to
exceed $ 2,000,000 for fiscal year 1974, $ 1,500,000 for fiscal year 1975 and not to exceed $ 2,000,000 for fiscal year
1976,".
1978. Act Nov. 10, 1978, substituted this section for one which read:
"Except as authorized in section 6 of this Act, there are authorized to be appropriated-"(1) not to exceed $ 10,000,000 for the fiscal year ending June 30, 1976, not to exceed $ 1,800,000 for the fiscal
transitional period ending September 30, 1976, and not to exceed a total of $ 25,000,000 for the fiscal year ending September 30, 1977 and the fiscal year ending September 30, 1978, to enable the Department of the Interior to carry out
such functions and responsibilities as it may have been given under this Act; and
"(2) not to exceed $ 2,000,000 for the fiscal year ending June 30, 1976, not to exceed $ 500,000 for the fiscal
transitional period ending September 30, 1976, and not to exceed a total of $ 5,000,000 for the fiscal year ending September 30, 1977 and the fiscal year ending September 30, 1978, to enable the Department of Commerce to carry out
such functions and responsibilities as it may have been given under this Act.".
Page 212
16 USCS § 1542
1979. Act Dec. 28, 1979, substituted this section for one which read:
"Except as authorized in sections 6 and 7 of this Act, there are authorized to be appropriated-"(1) not to exceed $ 25,000,000 for the fiscal year ending September 30, 1977, and the fiscal year ending September 30, 1977, and the fiscal year September 30, 1978, not to exceed $ 23,000,000 for the fiscal year ending September 30, 1979, and not to exceed $ 12,500,000 for the period beginning October 1, 1979, and ending March 31, 1980.
"(2) not to exceed $ 5,000,000 for the fiscal year ending September 30, 1977, and the fiscal year ending September 30, 1978, not to exceed $ 2,500,000 for the fiscal year ending September 30, 1979, not to exceed $ 12,500,000 for
the period beginning October 1, 1979, and ending March 31, 1980, to enable the Department of Commerce to carry out
such functions and responsibilities as it may have been given under this Act.".
1982. Act Oct. 13, 1982, substituted this section for one which read:
"Except as authorized in sections 6 and 7 of this Act, there are authorized to be appropriated-"(1) not to exceed $ 23,000,000 for each of fiscal years 1979 and 1980, not to exceed $ 25,000,000 for fiscal year
1981, and not to exceed $ 27,000,000 for fiscal year 1982 to enable the Department of the interior to carry out such
functions and responsibilities as it may have been given under this Act;
"(2) not to exceed $ 2,500,000 for each of fiscal years 1979 and 1980, not to exceed $ 3,000,000 for fiscal year
1981, and not to exceed $ 3,500,000 for fiscal year 1982 to enable the Department of Commerce to carry out such functions and responsibilities as it may have been given under this Act; and
"(3) not to exceed $ 1,500,000 for fiscal year 1980, not to exceed $ 1,750,000 for fiscal year 1981, and not to exceed $ 1,850,000 for fiscal year 1982 to enable the Department of Agriculture to carry out its functions and responsibilities with respect to the enforcement of this Act and the Convention which pertain to the importation or exportation of
terrestrial plants.".
1988. Act Oct. 7, 1988 substituted this section for one which read:
"(a) In general. Except as provided in subsections (b), (c), and (d), there are authorized to be appropriated-"(1) not to exceed $ 27,000,000 for each of fiscal years 1983, 1984, and 1985 to enable the Department of the
Interior to carry out such functions and responsibilities as it may have been given under this Act;
"(2) not to exceed $ 3,500,000 for each of fiscal years 1983, 1984, and 1985 to enable the Department of Commerce to carry out such functions and responsibilities as it may have been given under this Act; and
"(3) not to exceed $ 1,850,000 for each of fiscal years 1983, 1984, and 1985 to enable the Department of Agriculture to carry out its functions and responsibilities with respect to the enforcement of this Act and the Convention which
pertain to the importation or exportation of plants.
"(b) Cooperation with States. For the purposes of section 6, there are authorized to be appropriated not to exceed $
6,000,000 for each of fiscal years 1983, 1984, and 1985.
"(c) Exemptions. There are authorized to be appropriated to the Secretary to assist him and the Endangered Species
Committee in carrying out their functions under section 7(e), (g), and (h) not to exceed $ 600,000 for each of fiscal
years 1983, 1984, and 1985.
"(d) Convention Implementation. There are authorized to be appropriated to the Department of the Interior for purposes of carrying out section 8A(e) not to exceed $ 150,000 for each of fiscal years 1983 and 1984, and not to exceed $
300,000 for fiscal year 1985, and such sums shall remain available until expended.".
NOTES:
Related Statutes & Rules:
This section is referred to in 16 USCS § 1537.
Research Guide:
Page 213
16 USCS § 1542
Law Review Articles:
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
14 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 § 1543
§ 1543. Construction with Marine Mammal Protection Act of 1972
Except as otherwise provided in this Act, no provision of this Act shall take precedence over any more restrictive conflicting provision of the Marine Mammal Protection Act of 1972.
HISTORY:
(Dec. 28, 1973, P.L. 93-205, § 17, 87 Stat. 903.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This 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.
"The Marine Mammal Protection Act of 1972", referred to in this section, is Act Oct. 21, 1972, P.L. 92-522, 86 Stat.
1027, which appears generally as 16 USCS §§ 1361 et seq. For full classification of this Act, consult USCS Tables
volumes.
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.
930-205, § 16, 87 Stat. 903, which appears as 16 USCS § 1531 note.
NOTES:
Research Guide:
Page 214
16 USCS § 1543
Am Jur Proof of Facts:
35 Am Jur Proof of Facts 3d, Proof of Standing in Environmental Citizen Suits, p. 493.
Annotations:
Validity, construction, and application of state wildlife possession laws. 50 ALR5th 703.
Law Review Articles:
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.
Rosenberry. The Effect of the Endangered Species Act on Housing Construction. 33 Hastings L J 551-582, January
1982.
Arnold. Conserving habitats and building habitats: the emerging impact of the Endangered Species Act on land use
development. 10 Stan Envtl L J 1, 1991.
The concept of species and the Endangered Species Act. 11 Va Envtl LJ 463, Spring 1992.
15 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 § 1544
§ 1544. Annual cost analysis by the Fish and Wildlife Service
Notwithstanding section 3003 of Public Law 104-66 (31 U.S.C. 1113 note; 109 Stat. 734), on or before January 15,
1990, and each January 15 thereafter, the Secretary of the Interior, acting through the Fish and Wildlife Service, shall
submit to the Congress an annual report covering the preceding fiscal year which shall contain-(1) an accounting on a species by species basis of all reasonably identifiable Federal expenditures made primarily for
the conservation of endangered or threatened species pursuant to this Act; and
(2) an accounting on a species by species basis of all reasonably identifiable expenditures made primarily for the
conservation of endangered or threatened species pursuant to this Act by States receiving grants under section 6 [16
USCS § 1535].
HISTORY:
Page 215
16 USCS § 1544
(Dec. 28, 1973, P.L. 93-205, § 18, as added Oct. 7, 1988, P.L. 100-478, Title I, § 1012, 102 Stat. 2314; May 18,
2000, P.L. 106-201, § 1(a), 114 Stat. 307.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This Act", referred to in this section, is Act Dec. 28, 1973, P.L. 93-205, 87 Stat. 884, which is popularly known as
the Endangered Species Act of 1973, and appears generally as 16 USCS §§ 1531 et seq. For full classification of such
Act, consult USCS Tables volumes.
Amendments:
2000. Act May 18, 2000 (effective 12/19/99 pursuant to § 1(b) of such Act, which appears as a note to this section), in
the introductory matter, substituted "Notwithstanding section 3003 of Public Law 104-66 (31 U.S.C. 1113 note; 109
Stat. 734), on" for "On".
Other provisions:
Effective date of May 18, 2000 amendment. Act May 18, 2000, P.L. 106-201, § 1(b), 114 Stat. 307, provides:
"The amendment made by this section [amending this section] takes effect on the earlier of-"(1) the date of enactment of this Act; or
"(2) December 19, 1999.".
NOTES:
Research Guide:
Texts:
5 Treatise on Environmental Law (Matthew Bender), ch 12, Public Lands and Conservation § 12.04.
Law Review Articles:
Morriss; Stroup. Quartering species: the "living Constitution," the Third Amendment, and the Endangered Species
Act. 30 Envtl L 769, Fall 2000.