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May 14, 2002
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Chap 8: Environmental Assessment
and Biodiversity Protection

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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