Endangered Species Law & Policy

On July 21, 2010, the United States District Court for the Middle District of Florida ordered the dismissal of an Endangered Species Act ("ESA") challenge brought by no less than three states, six cities, and a host of local agencies (collectively, "Plaintiffs"), holding that the determination of the U.S. Fish & Wildlife Service ("Service") was entitled to deference. 

The multi-district litigation, which also included a claim under the National Environmental Policy Act, alleged that the 2008 Biological Opinion issued by the Service for the U.S. Army Corps of Engineers' ("Corps") operation of the Apalachicola-Chattahoochee-Flint river basin was arbitrary and capricious.  The Plaintiffs' ESA claims centered on three listed species: the threatened Gulf sturgeon, the endangered fat threeridge mussel, and the threatened purple bankclimber mussel.  Specifically, Plaintiffs argued that the Service failed to use the proper environmental baseline, failed to issue necessary incidental take statements for the Gulf sturgeon, and failed to properly analyze potential impacts when issuing incidental take statements for the fat threeridge mussel and purple bankclimber mussel. 

With respect to the baseline, Plaintiffs argued that the Service improperly segmented its analysis of the Corps' operational activities.  The District Court found this argument unpersuasive, stating that it was "an attempt to state a claim under the ESA for what is, in fact, a claim under NEPA."

With respect to the Gulf sturgeon, Plaintiffs argued that because the Service stated in the Biological Opinion that the Corps' operational activities "could" result in take, an incidental take permit was required.  The District Court, however, rejected this argument, noting that the Service also found that take was unlikely, and therefore the Plaintiffs were essentially arguing with the Service's ultimate conclusion, not the evidence it relied on.  The District Court stated that in such a situation, it must defer to the Service's scientific determination.

With respect to the purple bankclimber mussels, the Plaintiffs argued that because the Service did not know the total population of the species, it could not justify any take allowance.  The District Court noted that the Service found that the Corps' operational activities were unlikely to affect the species, and that even if the Service is lacking adequate data, it is authorized to develop a biological opinion by giving the species "the benefit of the doubt."  Therefore, because the Service gave the species the benefit of the doubt when developing the Biological Opinion and issuing the incidental take statement, and also required the agency to perform follow-up studies and to reinitiate consultation if those studies resulted in additional relevant information, the District Court held that the Service complied with the ESA.

Finally, with respect to the fat threeridge mussel, the Plaintiffs argued that the Corps' operational activities would result in jeopardy, and the Service and Corps have an obligation to stop the decline of the species.  The District Court rejected this argument, again finding that the Plaintiffs were arguing with the Service's ultimate conclusions, not the evidence it relied on, and therefore the Service's determination was entitled to deference.

Thus, the District Court rejected all of Plaintiffs' ESA challenges, denied Plaintiffs' motions for partial summary judgment, and dismissed Plaintiffs' ESA claims.  The District Court's decision was appealed to the United States Court of Appeals for the Eleventh Circuit, and it is currently pending.