Link to the case: https://casetext.com/case/biological-diversity-v-us-fish-wildlife

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap35-sec1533

Please note that the following brief was prepared by a student.

Plaintiffs: Center for Biological Diversity; Friends of the Santa Clara River

Defendants: United States Fish & Wildlife Service; CEMEX Inc.

Court: United States Court of Appeals for the Ninth Circuit

Facts: The US Fish & Wildlife Service had listed the unarmored threespine stickleback, a freshwater fish, as an endangered species in 1970. The Service proposed a rule designating three stream zones of a river watershed as critical habitat for the stickleback, but never completed the designation. CEMEX Inc. was awarded a contract to mine sand and gravel, which required the company to pump water from the river that could cause portions of the river to run dry periodically. The Service reviewed the project's likely impact on the stickleback, and it determined that the project was not likely to jeopardize the continued existence of the fish. The opinion included an incidental take statement (ITS). Plaintiff environmental protection groups Center for Biological Diversity and Friends of the Santa Clara River filed an action against the defendant, the United States Fish & Wildlife Service, charging that the agency violated the Endangered Species Act, 16 U.S.C.S. §§ 1531-1399.

Procedural History: The United States District Court for the Central District of California granted summary judgment in favor of CEMEX, which was allowed to intervene as a defendant, and the Service, and the group appealed. On appeal, the group argued that the Service exceeded its authority. The court found that the proposed designation of critical habitat under 16 U.S.C.S. § 1533 for an endangered species listed prior to the 1982 Amendments did not create a mandatory duty to make the designation. The court deferred to the agency's interpretation of the regulations, and held that the Service was not required to ensure compliance with federal and state law before issuing an ITS.

Legal Issue: Does 16 U.S.C. § 1533, part of the Endangered Species Act, require the United States Fish and Wildlife Service to complete formal designation of critical habitat for an endangered fish species listed over thirty-five years ago?

Holding: No.

Reasoning: The 1982 Amendments to the ESA state that pending proposals for designation of critical habitat are governed by the statutory provision [*936] on critical habitat revisions. (ESA Amendments of 1982 § 2(b)(2)). As such, the Service has discretion in choosing a course of action with respect to such proposals, just as it does in deciding whether or not to propose a designation.

We cannot accept the contention that "to the maximum extent prudent and determinable" should be read as the controlling language of § 1533(a)(3)(A) and that it mandates completion of the 1982 critical habitat proposal. Such contention fails to account for Congress's use of "shall" for designations and "may" for revisions. If CBD's interpretation is accepted, the statute's use of the discretionary "may" for revisions is rendered superfluous because the Service would be required to complete proposals pending at the time of the 1982 Amendments "to the maximum extent prudent and determinable." If this were truly Congress's intent, it would not have explicitly stated that pending proposals would be controlled by the provision on critical habitat revisions. Significantly, CBD does not explain why, under its logic, all critical [**13] habitat revisions would not be mandatory "to the maximum extent prudent and determinable," rendering meaningless the statute's separate treatment of revisions and designations. We decline to interpret the statute in this manner, and thus, we reject CBD's proposed interpretation. 8 See Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).

We also reject the argument that a mandatory duty to complete the critical habitat designation [**14] arose when the Service failed to make a final determination on the proposal by October 13, 1983--a year after enactment of the 1982 Amendments. We previously held that HN9 the ESA's time requirements are meant to spur agency action rather than to prohibit it once the specified time lapses. See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1400 (9th Cir. 1995). Agency delay alone does not transform a discretionary duty into a mandatory duty, especially where Congress provided a specific remedy for such a violation--a citizen suit to compel a decision. See id.

For these reasons, we conclude that HN10 the proposed designation of critical habitat for an endangered species listed prior to the 1982 Amendments, does not create a mandatory duty to make the "designation."

Dissenting Opinion: None.

Link to the case: https://casetext.com/case/palila-v-hawaii-dept-of-land-natural-res

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap35-sec1533

Please note that the following brief was prepared by a student.

Parties: PALILA (Loxioides bailleui, formerly Psittirostra bailleui), an endangered species; SIERRA CLUB; NATIONAL AUDUBON SOCIETY, a non-profit association; HAWAII AUDUBON SOCIETY, a non-profit association; ALAN C. ZIEGLER, Plaintiffs-Appellees, v. HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES; SUSUMO ONO in his capacity as chairman of the Hawaii Board of Land and Natural Resources.

Procedural History: Previously, there was an appeal from the United States District Court for the District of Hawaii in 1986 (Palila III). The plaintiffs were favored in prior court proceedings.

Facts: In November 1986, the district court ruled in favor of the Sierra Club. Palila v. Hawaii Dept. of Land & Natural Resources ("Palila III"). It found that the presence of mouflon sheep "harmed" the Palila, defining "harm" in two ways: (1) the eating habits of the sheep destroyed the mamane woodland and thus caused habitat degradation that could result in extinction; (2) were the mouflon to continue eating the mamane, the woodland would not regenerate and the Palila population would not recover to a point where it could be removed from the Endangered Species list.

Legal Issue: Do the eating habits of the mouflon sheep in Palila territory constitute a “harm” under the Endangered Species Act, thus deeming it a “taking” that significantly modifies the habitat of the Palila and negatively impacts their longevity?

Holding: The court affirmed the judgment in favor of plaintiff environmental groups on their suit against defendant Hawaii Department of Land and Natural Resources. The court found that habitat degradation that could result in extinction constituted "harm" under the Endangered Species Act and that a taking occurred when mouflon sheep were allowed to live in the palila's habitat.

Reasoning: Harm - The Department argues that the district court construed the definition of “harm” too broadly in Palila III since it emphasized a “potential” harm as opposed to an “actual harm. However, the Secretary noted that harm includes not only direct physical injury, but also injury caused by impairment of essential behavior patterns via habitat modification that can have significant and permanent effects on a listed species. Therefore, the DC’s inclusion within the definition of “harm” of habitat destruction that could drive the Palila to extinction falls within the Secretary’s interpretation. The statute says that the overall purpose of the Act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” and the removal of mouflon sheep who have harmful eating habits directly conserves the Palila’s threatened ecosystem. Taking - The House Report (on the Act) said that the “harassment” form of taking would “allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.” In essence, if the “harassment” form of taking could include something as remote as birdwatching, the mouflon sheep’s eating habits preventing any mamane from growing to maturity should most certainly count. Additionally, the Sierra Club’s witnesses showed that the Department’s additional programs as an alternative to removal of the mouflon sheep would not work. Coexistence is not an option, they showed, because the controlling of mouflon density is not the issue, their presence is. And, the growth of the Palila population will continue to be stagnant if they are not removed.

Dissent: None. The district court’s ruling is affirmed.

Link to the case: https://casetext.com/case/safari-club-intl-v-salazar-in-re-polar-bear-endangered-species-act-listing-section-4d-rule-litigationmdl-no-1993

Link to the United States Code: https://www.govinfo.gov/app/details/USCODE-2023-title16/USCODE-2023-title16-chap35-sec1531

Please note that the following content was prepared by a student.

Safari Club International challenges the listing of the polar bears as a threatened species under the Endangered Species Act (ESA) and the associated 4(d) rule. The polar bear's listing was based on findings regarding the species' declining habitat of melting sea ice due to anthropogenic actions causing climate change. The legal issue is whether the U.S. Fish and Wildlife Service (USFWS) properly classified the polar bear as a threatened species under the ESA and whether the associated 4(d) rule adequately addressed the conservation needs of the species. The U.S. Court of Appeals for the District of Columbia upheld the USFWS's decision to list the polar bear as a threatened species under the ESA. The court found that the agency's determination was supported by scientific evidence regarding the polar bear's declining habitat due to climate change. This was the one of the most prominent case as it reaffirms the significance of protecting species threatened by climate change setting a precedent for future ESA listing decisions and conservation efforts in the face of climate change.