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Environmental Law

: ESA Blawg

District Court case law round up: attempts to abuse ESA injunctions in Hawaii, timber effects on grizzly bears in Montana, and the importance of informal consultation in Washington, D.C.

By Keith Rizzardi

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Three days, three cases...

Seto and Friends of He ‘eia State Park et. al. v. Thielen, Civil No. 10-00351 SOM-BMK, 2010 WL 2612603 (D.Hawai'i, June 28, 2010)(Susan Oki Mollway, District Judge).
Plaintiff Friends of He ‘eia State Park is a disgruntled former lessee of an interpretive/education center, grounds and facilities at He ‘eia State Park. When Defendant Kama ‘aina Care Incorporated was awarded the new, 25-year lease, Plaintiffs filed suit. In relevant part, Plaintiffs claim that there is a septic system in He ‘eia State Park that is currently leaching human waste into Kaneohe Bay in violation of the Clean Water Act (Motion No. 5), the Coastal Zone Management Act (Motion No. 6), and the Endangered Species Act (Motion No. 7). Plaintiffs assert that Kama ‘aina Care's use of the park will increase use of the toilets at the park, possibly increasing the release of human waste into Kaneohe Bay... RULING: Rather than seeking to enjoin the alleged discharge of human waste into Kaneohe Bay, Plaintiffs seek a temporary restraining order and a preliminary injunction enjoining the recording and implementation of the lease to “manage and operate an interpretive/education center, grounds and facilities at He ‘eia State Park on Oahu.” In other words, Plaintiffs request that this court enjoin Kama ‘aina Care's entire operation at the park because of the potential that a septic system is leaking raw sewage into the waters of Kaneohe Bay. This court declines to issue such an overbroad injunction, especially because, as Plaintiffs concede, other septic systems exist in the park that might allow Kama ‘aina Care to operate… This court is certainly not holding that an injunction will never issue for violations of environmental statutes. Instead, the court denies Plaintiffs relief unrelated to the alleged violations. KEITHINKING 1: Another example of an ESA dispute as a proxy for something else.

Alliance for the Wild Rockies v. Bradford, No. CV 09-160-M-DWM, 2010 WL 2633905 (D.Mont., June 29, 2010)(Donald W. Molloy, District Judge)
Alliance sought APA review of U.S. Forest Service and the U.S. Fish & Wildlife Service concerning the Grizzly Vegetation and Transportation Management Project, the Miller West Fisher Project, and the Little Beaver Hazardous Fuels Reduction Project, (“Little Beaver Project”). The Complaint claims the agencies acted in violation of the Endangered Species Act (“ESA”), 16 U.S.C. ? 1533 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. ?? 1600 et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. ?? 4321 et seq. The court upheld the Federal Defendants on many of the ESA related agency actions, but found that the USFS was engaged in timber activities in areas outside the “recovery zones,” and that those activites were not analyzed or authorized. RULING: “The ESA prohibits take, unless an agency is complying with a written incidental take statement from the Fish & Wildlife Service specifying the measures necessary to minimize take. 16 U.S.C. ? 1536(b)(4); 16 U.S.C. ? 1536(o)(2). There is no such exemption here for the areas outside the recovery zone. Consequently the inescapable conclusion is the projects thus violate ? 9.” KEITHINKING 2: An ESA lawyer's safest advice: when in doubt, be sure you have a grant of incidental take.

Roads and road density “are among the most serious adverse impacts on the security of grizzly bear habitat and have negatively influenced grizzly bear population and habitat use patterns in numerous, widespread areas.” 2010 WL 2674639 at *2. As a result, the U.S. Forest Service has developed interim rules for its forest management areas to ensure habitat effectiveness, protect core habitat areas, and keep road densities below appropriate thresholds. As shown in the photo above, some areas in Canada allow for bear traffic to bypass roads by using overpasses. Photo by Tony Clevenger, Western Transportation Institute, available online in a 2007 issue of Go!,, Iowa State University's transportation publication.

Sierra Club v. Van Antwerp, Civil Action No. 07-1756(RCL), 2010 WL 2600507 (D.D.C., June 30, 2010)(Royce C. Lamberth, Chief Judge).
This case concerns a 500-acre multi-use development located in a Tampa, Florida suburb known as Cypress Creek Town Center (CCTC). See prior ESA blawg. Plans for the project include retail stores, financial institutions, hotels, restaurants, theaters, offices, and multi-family housing. The project site is located on wetlands, which will need to be “filled” in order for the project to be completed as planned. Because the project site involves the filling of wetlands, the Clean Water Act (CWA) required the project's developers to obtain a special permit prior to construction…. plaintiff's motion for summary judgment on their NEPA and CWA claims will be granted but their motion for summary judgment on the ESA claim will be denied… RULING: …the Corps contends that the requisite informal consultation was completed pursuant to 50 C.F.R. ? 402.13(a) prior to issuing the challenged permit. After the informal consultation process, the Corps contends that it determined that the proposed action was not likely to adversely affect any listed species and the FWS concurred, therefore ending the inquiry and satisfying the ESA… Considering the fact that there is nothing in the record to support a conclusion that the Eastern Indigo Snake actually occupies the CCTC site, the Court finds the Corps' determinations were not arbitrary or capricious… Additionally… FWS agreed with the Corps that mitigation measures which are in place will result in a net gain of approximately five acres of potential wood stork foraging habitat… While it is true that controversy exists about the efficiency of wetland mitigation generally, the Court's role is “not to resolve scientific disputes.” Natural Res. Def. Council v. FAA, 564 F.3d 549, 561 (2nd Cir.2009)… Finally… FWS determined that there was no suitable scrub jay habitat in the project area, and the Corps is under no obligation to consult with the FWS with respect to that species. See 16 U.S.C. ? 1536(a)(3). KEITHINKING 3: While an ITP is best, the ESA lawyer's least painful alternative is a well-documented informal consultation. Then again, in this case, the informal consultation did not help much; the judge, in harsh tones, held that NEPA and the Clean Water Act has been violated.

Full post as published by ESA Blawg on July 12, 2010 (boomark / email).