Wildlife: Endangered Species
Alaska
Alaska Center for Environment v. Rue
95 P.3d 924
Supreme Court of Alaska, 2004
FACTS: The Alaska Center for the Environment and the Alaska Wildlife Alliance (“the Center”) filed a superior court action challenging a decision by the Commissioner of the Game declining to list the Cook Inlet beluga whale as endangered under the Alaska Endangered Species Act. The superior court upheld the commissioner’s finding that no danger of extinction existed. The Center appeals.
ISSUES: 1) Whether there was sufficient evidence to support the commissioner’s decision declining to list the beluga whale as endangered, and 2) whether the commissioner used an incorrect legal standard in determining that the beluga whale was not a distinct subspecies within the meaning of the Alaska Endangered Species Act.
HOLDINGS: 1) Yes, the evidence supported the commissioner’s refusal to list the beluga whale as endangered under the Alaska Endangered Species Act. The commissioner considered the requisite factors for determining if a species should be listed as endangered, and the fisheries services’ recent findings provided a rational basis to conclude that the belugas’ diminished population did not by itself imperil the whales’ survival. 2) Yes, the commissioner used an incorrect legal standard, thereby failing to consider relevant information, in deciding that Cook Inlet belugas are not a distinct subspecies. Nevertheless, because the commissioner’s finding on the threatened extinction provided an independent ground to deny the Center’s petition, the decision of the superior court was affirmed.
Connecticut
Animal Rights Front, Inc. v. Jacques
869 A.2d 679
Appellate Court of Connecticut, 2005
FACTS: Appellant Rejean Jacques, a real estate developer, received approval to construct a thirty-nine unit subdivision on a parcel of land. This parcel of land is part of one of the last remaining habitats of the eastern timber rattlesnake, an endangered species under Connecticut statutes. Animal Rights Front, a nonprofit organization that works to protect animals, brought this action against Jacques, the building inspector and the mortgagee, seeking a permanent injunction to stop them from developing this property. Jacques, the building inspector and the mortgagee each filed separate motions to strike Animal Rights Front’s complaint for failure to state a claim upon which relief can be granted. The trial court granted these motions to strike and entered judgment for the appellants. Animal Rights Front appeals.
ISSUE: Whether the Connecticut Environmental Protection Act (CEPA) prevents defendants from developing the subdivision because the development is likely to harm the rattlesnakes living there.
HOLDING: No, the CEPA permits the development of this subdivision. The CEPA permits harm to endangered species that is incidental to the lawful development of property. The subdivision development is an incidental taking of rattlesnake habitat and thus is not unreasonable under the CEPA.
Federal
Center for Biological Diversity v. Lohn
483 F.3d 984
United States Court of Appeals, Ninth Circuit, 2007
FACTS: The Center for Biological Diversity (Center) petitioned the National Marine Fisheries Service (Service) to list the Southern Resident killer whale as an endangered species under the Endangered Species Act (ESA). In response, the Service issued a proposed ruling that concluded listing the Southern Resident as an endangered species was unwarranted. On cross-motions for summary judgment, the district court held that the Service’s Distinct Population Survey Policy was not contrary to congressional intent, but that the Service failed to utilize the best available scientific data in making its determination. The Service then issued a proposed rule that recommended listing the Southern Resident as a threatened species. The Center appealed.
ISSUE: Whether the case is moot because the Service has issued a final rule listing the Southern Resident as an endangered species.
HOLDING: Yes, the case is moot. The potential impact of the DPS Policy on the Southern Resident's endangered species status or the Service's listing determination of certain other killer whale populations at some indeterminate time in the future is too remote and too speculative a consideration to save this case from mootness.
Federal
Defenders of Wildlife v. Martin
454 F.Supp.2d 1085
United States District Court, E.D. Washington, 2006
FACTS: The Selkirk Mountains woodland caribou is listed as endangered under the Endangered Species Act (ESA). In 2001 the United States Fish and Wildlife Service (FWS) recognized that the population is “in danger of extirpation.” A caribou recovery plan was developed, which set aside a recovery area in the Selkirk Mountains for caribou. However, snowmobiling occurs throughout the caribou recovery area. FWS has implemented national forest management actions in two national forests. Plaintiff Defenders of the Wildlife brought suit against defendants FWS, the United States Forest Service (USFS) and their officials under the Endangered Species Act. Defenders of the Wildlife claim that defendants were allowing the decline of the remaining woodland caribou in the United States by implementing these national forest management actions. Defenders of Wildlife filed motions for injunctive relief and partial summary judgment. Defendants filed cross-motion for partial summary judgment.
ISSUES: 1) Whether Defenders of Wildlife is entitled to a preliminary injunction prohibiting USFS from authorizing snowmobiling activities within designated caribou recovery area, and 2) whether Defenders of Wildlife’s claims that the biological opinion and the incidental take statement violated ESA are rendered moot by reinitiation of consultation.
HOLDINGS: 1) Yes, Defenders of Wildlife did make a sufficient showing to be entitled to a preliminary injunction. This injunction prohibits USFS from authorizing snowmobiling activities within designated caribou recovery area in national forests until the completion of consultation with FWS. 2) Yes, the claims became moot after defendants reinitiated consultation. No effective relief can be granted since defendants are already engaged in consultation
Federal
Center for Biological Diversity v. Scarlett
452 F.Supp.2d 966
United States District Court, N.D. California, 2006
FACTS: Plaintiffs Center for Biological Diversity (Center) and several other environmental organizations petitioned the Fish and Wildlife Service (FWS) to list the California spotted owl as an endangered species. FWS made a 90-day finding as required by the Endangered Species Act (ESA) that this listing may be warranted and initiated a status review. FWS then announced its 12-month finding that listing the California spotted owl as endangered or threatened was not warranted. The Center challenged this finding, claiming that FWS failed to include in its status review several necessary factors required by the ESA. Plaintiffs moved to compel FWS to list the California spotted owl as threatened or endangered under the ESA. This action was dismissed in accordance with the stipulation of the parties after defendants conducted a new 12-month study of the owl’s status. The Center then moved for attorney’s fees.
ISSUE: Whether the Center is entitled to attorney’s fees.
HOLDING: No, the Center is not entitled to attorney’s fees. Attorney’s fees should only be awarded when the goal of the lawsuit is consistent with the complaint. Here plaintiff’s motion for attorney’s fees is denied because they failed to realize the goals of their lawsuit.
Federal
Defenders of Wildlife v. Secretary, U.S. Department of Interior
354 F.Supp.2d 1156
United States District Court, D. Oregon, 2005
FACTS: In April 2003 the United States Fish and Wildlife Service (FWS) issued the Final Rule to Reclassify and Remove the Gray Wolf from the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States. The Final Rule reduced the protection afforded to the gray wolf under the Endangered Species Act by changing the status of the gray wolf from “endangered” to “threatened” in some regions. Plaintiffs Defenders of Wildlife et al. filed an action for declaratory and injunctive relief against Defendant Gail Norton, Secretary of the United States of the Interior. Defenders of Wildlife allege that this change in status violates the Endangered Species Act (ESA), the ESA’s implementing regulations, and the Administrative Procedure Act (APA). Idaho, Montana, and Wyoming, and various non-governmental interest groups intervened as defendants. Defenders of Wildlife seek injunctive relief that would remand the Final Rule to FWS for reconsideration. Defenders of Wildlife and the Secretary cross-moved for summary judgment.
ISSUES: 1) Whether the individual members of the environmental organizations had standing to challenge the final rule; 2) whether FWS’s interpretation of the phrase “significant portion of its range” is reasonable and therefore entitled to deference; 3) whether FWS’s decision to expand the boundaries of distinct population segments (DPSs) of the gray wolf was arbitrary and capricious; 4) whether FWS’ down listing of entire DPSs was inconsistent with the ESA and thus arbitrary and capricious; 5) whether FWS’ conservation program for the gray wolf utilized all necessary measures to conserve endangered and threatened species.
HOLDINGS: 1) Yes, the environmental organizations demonstrated that their individual members had an aesthetic or recreational interest in observing wolves which would be injured in fact by the decreased protection off wolves. Therefore, the organizations had standing to challenge the Final Rule. 2) No, FWS’ interpretation of the phrase “significant portion of its range” is not entitled to deference because the interpretation is unreasonable. The interpretation is unreasonable because it is contrary to the ESA and Ninth Circuit precedent. 3) Yes, FWS’ extension of boundaries was arbitrary and capricious. FWS only extended the boundaries for the DPSs in which the gray wolf populations had achieved recovery goals, and used these to account for the wolf’s entire historical range. 4) Yes, the FWS’ down listing of the entire DPSs was inconsistent with the ESA and therefore was arbitrary and capricious. FWS failed to analyze threats to the gray wolf outside of its current range. 5) Yes, FWS’ conservation program for the gray wolf, provided by Final Rule, did satisfy FWS’ statutory duty to use all necessary measure to conserve endangered and threatened species. Defenders of Wildlife’s motion for summary judgment is granted, defendants’ motions for summary judgment are denied and the Final Rule is enjoined and vacated.
Federal
Fund for Animals, Inc. v. Hogan
428 F.3d 1059
United States Court of Appeals, District of Columbia Circuit, 2005
FACTS: The Fund for Animals (Fund) petitioned the U.S. Fish and Wildlife Service (FWS) to list the trumpeter swans inhabiting Wyoming, Montana, and Idaho as endangered or threatened. FWS denied the petition and authorized a limited take of trumpeter swans. The Fund sued FWS, claiming that these decisions violated the Endangered Species Act, the Administrative Procedure Act, the National Environmental Policy Act, and the Migratory Bird Treaty Act. The district court rejected the Fund’s claims and the Fund appeals.
ISSUES: 1) Whether FWS’ 90-day finding which explained why trumpeter swans were not a distinct population segment entitled to protection as endangered or threatened mooted the claim that the letter did not comply with the Endangered Species Act (ESA), and 2) whether the Fund’s claims fell under the exception to the mootness doctrine.
HOLDINGS: 1) Yes, FWS’ finding rendered moot the claim that the letter did not comply with the ESA. 2) No, the Fund’s claims under the APA, NEPA, and MBTA did not fall within the “capable of repetition yet evading review” exception to the mootness doctrine.
Federal
U.S. v. Kapp
419 F.3d 666
United States Court of Appeals, Seventh Circuit, 2005
FACTS: From 1997 to 1999, appellant William Kapp purchased, killed, transported, and sold numerous exotic animals, including tigers and leopards, which are protected under the Endangered Species Act (ESA). Kapp and his co-conspirators did not hunt these animals in the wild; rather they shot them while helplessly confined. Kapp made thousands of dollars selling the meat, hides, and other parts of the animals. The U.S. Fish and Wildlife Service (FWS) heard of these activities and launched an undercover sting operation, “Operation Snowplow.” This led to the arrest and conviction of Kapp and his co-conspirators. At trial a jury convicted Kapp of multiple violations of the ESA and Lacey Act. Kapp appeals.
ISSUES: 1) Whether there was sufficient evidence to support Kapp’s conviction; 2) whether the admission into evidence of mounted tigers and leopards was unduly prejudicial; and 3) whether Kapp was improperly sentenced.
HOLDINGS: 1) Yes, there was sufficient evidence to convict Kapp on all counts. The court holds that there was sufficient evidence to support a finding that the animals at issue were endangered tigers and leopards, as opposed to unprotected species-level hybrids. 2) No, the admission into evidence of mounted tigers and leopards was not unduly prejudicial. The probative value of admitting into evidence the mounted tigers and leopards was not outweighed by the potential for undue prejudice or improperly arousing the emotions of the jurors. 3) Maybe, at the time of sentencing, the sentencing guidelines were mandatory. However, the U.S. Supreme Court has since rendered the guidelines advisory. A limited remand is necessary to permit a sentencing judge to determine whether he would have imposed the same sentence had he known the guidelines were not mandatory.
Federal
Florida Marine Contractors v. Williams
378 F.Supp.2d 1353
United States District Court, M.D. Florida, Tampa Division, 2005
FACTS: Florida Marine Contractors Association applied for permits to build recreational docks on Florida’s inland waterways that are inhabited by Florida manatees. After reviewing the proposed construction plans, the Fish and Wildlife Service (FWS) concluded that the building and intended use of the docks would result in the “incidental taking” of the Florida manatee, and would also have more than a “negligible impact” on the species. FWS recommended that the permit applications be denied. Florida Marine Contractors Association filed this action, claiming that the Marine Mammal Protection Act does not apply to residential docks built on Florida’s inland waters, and therefore, the Service unlawfully applied the Act’s provisions to deny their permit applications.
ISSUE: Whether FWS properly determined that the Florida Marine Contractors Association’s permit applications should be denied.
HOLDING: Yes, FWS was correct in determining that the Florida Marine Contractors Association’s permit applications should be denied. The Marine Mammal Protection Act applies to Florida’s inland waters without limitations for hazards attributable to recreational activities. In addition, the Act’s provisions, which establish a moratorium on taking and importation of marine mammals and generally ban taking permits for marine mammals, governed FWS’ consideration of the permit applications.
Federal
Cetacean Community v. Bush
386 F.3d 1169
United States Court of Appeals, Ninth Circuit, 2004
FACTS: Plaintiff Cetacean Community is a group composed of all the world’s whales, porpoises and dolphins. The Cetaceans challenge the United States Navy’s use of Surveillance Towed Array Sensor System Low Frequency Active Sonar (SURTASS LFAS) in a time of heightened threat. They claim that SURTASS LFAS harms them by causing tissue damage and other serious injuries, and by disrupting biologically important behaviors. The Cetaceans allege that the Navy’s use of SURTASS LFAS violates the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA), and the National Environmental Policy Act (NEPA). The Cetaceans seek to compel President Bush and Secretary of Defense Rumsfeld to undertake regulatory review of the use of SURTASS LFAS, and they also seek an injunction ordering the President and Secretary of Defense to consult with the National Marine Fisheries Service under the ESA, to apply for a letter of authorization under the MMPA, and to prepare an environmental impact statement under the NEPA. In addition, they seek an injunction banning the use of SURTASS LFAS until the President and Secretary of Defense have complied with the above requirements. The district court granted the President and Secretary of Defense’s motion to dismiss, holding that the Cetaceans lack standing under the ESA, the MMPA, NEPA, and the Administrative Procedure Act (APA). Cetaceans appeal.
ISSUE: Whether the Cetaceans have been granted standing to sue by the ESA, the MMPA, NEPA, or the APA.
HOLDING: No, the Cetaceans have not been granted standing to sue. Under the ESA, animals are not authorized to sue in their own names to protect themselves; the statute is set up to authorize “persons” to sue to protect animals. Neither is there anything in either the NEPA or the APA that would allow animals who are a part of the environment to bring suit on their own behalf. The MMPA also says nothing about the standing of a would-be party like the Cetaceans.
Federal
Center for Biological Diversity v. Morgenweck
351 F.Supp.2d 1137
United States District Court, D. Colorado, 2004
FACTS: Plaintiffs Center for Biological Diversity, Biodiversity Conservation Alliance, Pacific Rivers Council, Ecology Center and Jacob Smith contend that there is well-documented evidence demonstrating that the Yellowstone cutthroat trout should be listed as at least a threatened species under the Endangered Species Act (ESA). Almost two and a half years passed before the United States Fish and Wildlife Service (FWS) completed a 90-day review as required under the ESA. This review was completed only after petitioners filed suit seeking declaratory relief that FWS violated the ESA by not conducting the review within the statutorily-required time period. FWS concluded in the review that a listing was unwarranted. Plaintiffs challenge FWS’ finding, and seek an order setting it aside and requiring FWS to reevaluate the listing of the Yellowstone cutthroat trout in accordance with the ESA.
ISSUES: 1) Whether FWS’ rejection of plaintiffs’ petition was arbitrary and capricious, and 2) whether FWS properly conducted the 90-day review of the petition.
HOLDINGS: 1) Yes, FWS’ rejection of the petition was arbitrary and capricious. In its evaluation of the substance of the petition and its attachments, FWS incorrectly concluded that the petition did not present substantial information that listing the Yellowstone cutthroat trout as threatened may be warranted. 2) No, FWS arbitrarily and capriciously conducted the 90-day review of the petition by soliciting information and opinions from limited outside sources. The FWS was ordered to complete the 12-month status review of the Petition as mandated by the ESA.
Federal
Center for Biological Diversity v. Badgley
335 F.3d 1097
United States Court of Appeals, Ninth Circuit, 2003
FACTS: In July 1991 the Center for Biological Diversity (Center) petitioned the United States Fish and Wildlife Service (FWS) to list the Northern Goshawk as an endangered species in the entire forested area of the United States west of the 100th meridian. FWS assembled a team of wildlife biologists with special expertise in goshawks to conduct a status review to determine if the goshawk warranted listing. Based on the available data, the status review team concluded that the goshawk population was well-distributed and that there was no evidence of a reduction in its range. The Center brought this action, claiming that FWS’ determination that the goshawk did not need to be listed was arbitrary and capricious and in violation of the Endangered Species Act (ESA). Badgley, Regional Director of the FWS, and the Center filed cross motions for summary judgment. The district court granted summary judgment in favor of Badgley and FWS. The Center appeals.
ISSUE: Whether FWS’ determination that the goshawk did not need to be listed as an endangered species was arbitrary and capricious and in violation of the ESA.
HOLDING: No, evidence gathered by the status review team amply supported FWS’ determination. In the absence of evidence that the goshawk is endangered or likely to become endangered in the foreseeable future, FWS’ decision was not arbitrary or capricious.
Federal
Gordon v. Norton
322 F.3d 1213
United States Court of Appeals, Tenth Circuit, 2003
FACTS: Appellants Stephen Gordon and the Diamond G Ranch, Inc. challenge the Fish and Wildlife Service’s (FWS) control of gray wolves introduced under the Northern Rocky Mountain Wolf Recovery Plan near the Diamond G. This case arose after documented gray wolf attacks on cattle and dogs from the Diamond G. Gordon and the Diamond G brought suit in federal district court, alleging violations of the Fifth Amendment Takings Clause and Endangered Species Act (ESA) regulations. The district court dismissed the takings claim for lack of subject matter jurisdiction and the ESA claims as not yet ripe for review. Gordon and the Diamond G appeal.
ISSUES: 1) Whether the district court lacked subject matter jurisdiction over the Fifth Amendment takings claims, and 2) whether the ESA claims were ripe for review.
HOLDINGS: 1) Yes, the district court lacked subject matter jurisdiction over the takings claims because a Tucker Act remedy is available. Under the Tucker Act, Gordon and the Diamond G must file their claims in the Court of Claims to obtain compensatory relief. In addition, the FWS’ administrative action lacked the finality that would make this case subject to review in district court. 2) No, the ESA claims were not ripe for review. There was no immediate threat to Gordon and the Diamond G from the FWS’ delay, which would make this case ripe for review.
Federal
American Society for the Prevention of Cruelty to Animals (ASPCA) v. Ringling Bros. and Barnum & Bailey Circus
317 F.3d 334
United States District Court of the District of Columbia, 2003
FACTS: Thomas Rider, formerly employed by Ringling Bros. as an elephant handler, allegedly witnessed employees of Ringling Bros. routinely beating, chaining and otherwise mistreating the circus elephants. He witnessed the negative impact of such treatment in the elephants with which he had formed a “strong, personal attachment.” Rider left his job with Ringling Bros. due to the mistreatment and would like to visit the elephants and work with them again, but is unwilling to do so because of the “aesthetic and emotional injury” from seeing the animals unless they are placed in a different setting or are no longer mistreated. This case was brought by the ASPCA, et al., against Ringling Bros. due to their alleged routine beating, chaining and other mistreatment of the circus elephants. Plaintiffs argued that the mistreatment amounted to an unlawful taking of an endangered species under the Endangered Species Act. The district court dismissed plaintiffs’ case for lack of standing under Article III of the Constitution.
ISSUE: Did the District Court err in finding that plaintiffs lacked standing under Article III of the Constitution?
HOLDING: Yes, the District Court erred in finding that plaintiffs lacked standing under Article III of the Constitution. In order to establish standing under Article III, plaintiff must show 1) that he has suffered an injury in fact, which is 2) fairly traceable to the defendant’s actions, and 3) capable of judicial redress. The Court found that Rider alleged enough information to show 1) that the harm to his aesthetic interests in viewing the animals was an injury in fact, 2) that the alleged mistreatment of the elephants by Ringling Bros. employees was the source of said injury, and 3) that his injuries will likely be redressed if he is successful on the merits. Therefore, plaintiffs satisfy the standing requirement.
Federal
Bennett v. Spear
5 F.Supp.2d 882
United States District Court, D. Oregon, 1998
FACTS: In 1988 Lost River and shortnose suckers were listed as endangered based on a decline in the species’ population due to fragmentation of habitat and decreased water quality. After the suckers were listed as endangered, Reclamation and Fish and Wildlife entered a memorandum agreement to initiate informal consultation regarding the effects of the operation of Upper Klamath and Clear Lake reservoirs on the suckers (called the Klamath Project). Fish and Wildlife issued a biological opinion stating that the long-term operation of the Upper Klamath and Clear Lake reservoirs is likely to jeopardize the existence of the suckers. Plaintiffs are a group of farmers who receive water from the Gerber and Clear Lake reservoirs. Plaintiffs bring an Endangered Species Act (ESA) action challenging the biological opinion as it relates to the Gerber and Clear Lake reservoirs. They claim that the minimum lake elevations imposed by Fish and Wildlife with regard to Clear Lake and Gerber reservoirs are arbitrary and capricious because Fish and Wildlife did not find that the operations of the Gerber and Clear Lake reservoirs were likely to jeopardize the suckers.
ISSUES: 1) Whether service was required to determine if the operation of reservoirs was interrelated or interdependent with the operation of water storage and irrigation project as a whole; 2) whether reasonable and prudent alternatives (RPA) under the ESA must be rationally related to avoiding jeopardy to endangered species; 3) whether the record supported the finding that minimum lake elevations and RPAs in reservoirs would help avoid jeopardy to the suckers.
HOLDINGS: 1) Yes, service was required and therefore this court is not qualified to determine whether the operation of Clear and Gerber Lakes depend on the operation of the Klamath Project. 2) Yes, the requirement that RPAs be based on the best data scientifically available, and general administrative law doctrines support the conclusion that RPAs must be rationally related to the purpose of avoiding jeopardy. 3) No, the record did not support the finding that minimum lake elevations and other RPAs in the Clear Lake and Gerber reservoirs would help avoid jeopardy to suckers. The proceeding was remanded to the Secretary of the Interior for further consideration.
New Jersey
In re Adopted Amendments To N.J.A.C.
839 A.2d 60
Superior Court of New Jersey, Appellate Division, 2003
FACTS: The New Jersey Builders Association challenges the Department of Environmental Protection’s (DEP) 2002 amendment to N.J.A.C., which adopts the Landscape Project method to classify wetlands that support the habitats of threatened or endangered species. Under the Landscape Project method, wetlands containing habitat characteristics that endangered or threatened species use and require for breeding, resting and feeding are classified as “wetlands of exceptional resource value.” The New Jersey Builders Association objects to the implementation of the Landscape Project method, arguing that by expanding the focus of the habitat classification process, the Landscape Project method exceeds the statutory mandate.
ISSUE: Whether the Department of Environmental Protection’s Landscape Project method exceeds the statutory mandate.
HOLDING: No, the Landscape Project method does not exceed the statutory mandate. DEP’s effort to adopt a more protective approach toward endangered or threatened species through the implementation of the Landscape Project method is neither inconsistent with the governing statute, unsupported by the record, nor arbitrary and capricious.
New York
State v. Sour Mountain Realty, Inc.
276 A.D.2d 8
Supreme Court, Appellate Division, Second Department, New York, 2000
FACTS: Appellant Sour Mountain Realty seeks to conduct mining operations on its site. However, a timber rattlesnake den is located approximately 260 feet from the property line of the site. The timber rattlesnake is a threatened species in New York. After learning of the rattlesnake den’s existence, Sour Mountain informed the Department of Environmental Conservation (DEC) that it was going to build a snake-proof fence along the property line. The purpose of the fence was to keep timber rattlesnakes off Sour Mountain’s property. DEC told Sour Mountain that if the fence would significantly alter the snakes’ habitat, building the fence would violate the law. Sour Mountain built the fence and the State of New York and the Commissioner of the DEC filed an action seeking to permanently enjoin Sour Mountain from using the fence. The trial court granted the motion for a preliminary injunction and directed Sour Mountain to remove the fence. Sour Mountain appeals.
ISSUES: 1) Whether DEC has authority under the State Endangered Species Act to protect the habitat of a threatened or endangered species; 2) whether building the fence after discovering a timber rattlesnake den nearby constitutes a “taking” of a threatened species; 3) whether enjoining the use of the fence can be considered a taking of Sour Mountain’s property without just compensation.
HOLDINGS: 1) Yes, DEC has the authority under New York State Endangered Species Act to protect the habitat of a threatened or endangered species. 2) Yes, a prohibited taking of a protected species may occur upon modification of its habitat. Therefore, Sour Mountain had committed a taking of a threatened species under the New York State Endangered Species Act. 3) No, the actions DEC took to enjoin the use of the fence cannot be equated with a taking of Sour Mountain’s property without just compensation. Any economic effect on the property stemming from removal of the fence would be tenuous at best.
Oregon
County of Morrow v. Department of Fish and Wildlife
37 P.3d 180
Court of Appeals of Oregon, 2001
FACTS: The Oregon Fish and Wildlife Commission received a petition to list the Washington ground squirrel as endangered. One of the last remaining significant habitats of the ground squirrel is a tract of land on which there was planned construction of a road. After the commission voted to consider listing the squirrel as endangered, the Oregon Department of Fish and Wildlife prepared a draft relating to the squirrel. The department sent copies of the draft to affected entities, including Morrow County. Later the department also sent copies of the draft assessment to Morrow County. A Morrow County judge and commissioner then sent a letter to the commission asserting that the county had not been formally consulted about the listing of the squirrel as endangered. The judge and commissioner requested that the listing decision be delayed. The hearing went forward as scheduled however, and the commission voted to add the Washington ground squirrel to the list of endangered species. The judge and commissioner appeal.
ISSUES: 1) Whether the rules are invalid because the commission failed to consult with the Port of Morrow; 2) whether the notice provided to Morrow County of the proposed addition of the ground squirrel to the list of endangered species was insufficient to constitute the consultation required by law; 3) whether the commission based its decision to list the squirrel as endangered on adequate information.
HOLDINGS: 1) No, the rules are not invalid because the Port of Morrow is neither a city nor a county and therefore is not entitled to consultation. In addition, the Port of Morrow did not ask to be consulted. 2) No, the notice was not insufficient to constitute the consultation required by law. The commission’s provision of information to the county and its invitation to provide comment is all that the rule requires in providing that the commission “consult with” the county. 3) Yes, the commission did base its decision to list the Washington ground squirrel as endangered on adequate information. The commission is not required to survey the entire geographic range of the squirrel’s habitat, only to determine if the squirrel is in danger of extinction throughout any significant portion of its range.
Wisconsin
Barnes v. Department of Natural Resources
516 N.W.2d 730
Supreme Court of Wisconsin, 1994
FACTS: Barnes petitioned the Department of Natural Resources (DNR) to review the unlisted status of the bobcat and designate it a threatened species. The DNR declined to add the bobcat to the list, and Barnes sought judicial review. The circuit court affirmed DNR’s determination. Barnes appealed, and the appellate court affirmed the circuit court’s decision. Barnes appealed the case to the Wisconsin Supreme Court.
ISSUE: Whether the DNR erred in refusing to engage in rulemaking proceeding in response to the Barnes petition to add the bobcat to Wisconsin’s list of threatened species.
HOLDING: No, DNR did not err in refusing to engage in rulemaking proceeding in response to the Barnes petition to add the bobcat to Wisconsin’s list of threatened species. Barnes presented inconclusive evidence of a decline of bobcat population in Wisconsin. Lack of information is not a basis for listing a species as threatened.