Private
Development of Public Resources
The Constitutional Reach of
Federal Authority To Protect Endangered Species (pp. 912-23)
As noted in the 2002 Supplement, the Supreme Court has
turned down opportunities to address constitutional challenges to
the scope of federal authority to protect endangered species. The
Court denied review in both National Association of Home Builders
v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (casebook, pp.
912-23), and Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2002),
despite impassioned dissents in both cases arguing that the
decisions were inconsistent with United States v. Lopez, 514
U.S. 549 (1995). These decisions suggest that, at least until some
court creates a circuit split by holding the Endangered Species Act
unconstitutional as applied to regulation of activities affecting a
particular species, it is unlikely that the Supreme Court will
address the issue. Some observers suspect that the US Court of
Appeals for the Fifth Circuit could become the first court to so
rule in a case called Shields v. Norton, No. 00-50839, which
was argued in November 2001. At oral argument, two of the three
judges on the panel hearing the case expressed skepticism concerning
the notion that Congress's authority to regulate interstate commerce
could support federal protection of endangered species living on the
Edwards aquifer.
Which Species Are Protected:
Section 4 (pp. 934-938)
In Alsea Valley Alliance v. Evans, 161 F.Supp.
2d 1154 (D. Ore. 2001), a federal district court in Oregon reversed
the listing of the Oregon Coast coho salmon as threatened under the
Endangered Species Act because the decision did not cover coho
salmon raised in fish hatcheries. The court noted that the National
Marine Fisheries Service had not defined hatchery spawned coho as a
population segment of the species distinct from naturally spawned
coho. This decision now is spawning a host of new legal challenges
to measures to protect wild salmon runs under the Endangered Species
Act. Fish Wars, N.Y. Times, Feb. 14, 2002, at A30.
Review of Federal Action:
Section 7 (pp. 938-52)
On March 1, 2002, the Bush administration established
a cabinet-level group to review federal policies concerning the
protection of wild salmon and the provision of federal irrigation
water to farmers and ranchers in the Klamath River Basin of Oregon.
Chaired by Council on Environmental Quality chairman James
Connaughton, the panel also includes Interior Secretary Gale Norton,
Agricultural Secretary Ann Veneman, and Commerce Secretary Donald
Evans. It has been asked to recommend measures to "enhance water
quality and quantity" in the Klamath River Basin within 18 months.
The review group was created in response to a National Academy of
Sciences panel that found there was insufficient scientific evidence
to determine whether the water that formerly had been used for
irrigation was needed to prevent harm to the threatened coho salmon
and the endangered suckerfish. As noted in the 2002 Supplement (p.
264), a decision by the Bureau of Reclamation in April 2001 to cut
off this water to protect the salmon spawned harsh protests by
farmers and ranchers who temporarily forced open the irrigation
canal.
In Arizona Cattle Growers Association v. US Fish
and Wildlife Service, 273 F.3d 1229 (9th Cir. 2001), the Ninth
Circuit held that the Fish and Wildlife Service (FWS) could not
preclude the issuance of federal grazing permits by issuing an
incidental take statement under Section 7 of the Endangered Species
Act unless it first made an affirmative finding that the grazing
actually would result in the incidental taking of endangered
species. The court rejected the argument that "take" should be read
more broadly for purposes of Section 7 than for purposes of Section
9. The FWS had issued incidental take statements (ITSs) that
precluded ranchers from grazing cattle in certain areas based on the
notion that potential habitat modification by the cattle might harm
endangered species. The Ninth Circuit held that an ITS had to be
predicated on an affirmative finding of an incidental take and that
the FWS had acted in an arbitrary and capricious manner by issuing
an ITS without properly specifying the amount of the anticipated
take and without providing a clear standard for determining when an
authorized level of take would be exceeded.
Private Development of Public
Resources (pp. 975-76)
On January 12, 2001, the Clinton administration issued
a regulation prohibiting construction of new roads for timber
harvesting in 58.5 million acres of roadless areas of the national
forests. However, as noted in the 2002 Supplement (p. 266), the
regulations have been suspended since May 2001 by order of a federal
district court in Idaho in response to an industry lawsuit that the
Bush administration did not contest. The court found that the Forest
Service's environmental impact statement (EIS) did not comply with
NEPA and that the rule threatened to cause irreparable harm to the
national forests. The court's decision has been appealed to the US
Court of the Appeals for the Ninth Circuit by environmental
intervenors, but not by the Bush administration, which is refusing
to defend the Clinton administration rules. The case was argued
before the Ninth Circuit in October 2001. The environmental
intervenors are asking the Ninth Circuit to direct the district
court to lift the preliminary injunction and to dismiss the NEPA
claims on the ground that NEPA does not apply to "federal inaction"
that has no physical impact on the environment.
On December 20, 2001, Dale Bosworth, the head of the
US Forest Service, issued a directive designed to make it easier to
build roads in national forests. The directive seeks to dispense
with mandatory environmental reviews for new road building and to
eliminate the requirement that a "compelling need" be shown before
new roads are built.
On December 17, 2001, a plan to log 181 million board
feet of timber from trees burned in Montana's Bitterroot Valley was
approved by Mark Rey, undersecretary of agriculture for natural
resources and the environment. In approving the sale, Rey, a former
timber industry lobbyist who also was the architect of the
controversial 1995 timber salvage appropriations rider, eliminated
the public's 45-day right of administrative appeal. Katherine Q.
Seelye, US Approves Timber Sale, Prompting Court Challenges, NY
Times, Dec. 18, 2002, at A12. However, a federal court has blocked
the decision in response to a lawsuit by am environmental group.
In October 2001, the Interior Department completed its
reconsideration of regulations that the Clinton administration had
issued to prevent environmental damage from hard rock mining on
federal lands. Under the new regulations the federal government no
longer has the authority to deny a permit for mining activity that
could result in "substantial irreparable harm" to the environment or
to cultural and historic resources. The new regulations also limit
the liability of mining companies for the remediation of damage to
ground and surface waters caused by their activities.
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