Federal
Endangered Species Act
Miscellaneous
Issues
Digest
of Recent Case Law
November, 2002
by
Tara L. Mueller, Esq.
Deputy Attorney General
California Office of the Attorney General
Land Law Section, Oakland CA
The views herein expressed
are solely those of the author, and do not necessarily reflect the views of the
California Attorney General, the California Department of Justice, or any other
California state agency.
Case Summary
This case involved a challenge to
Proposition 4, an initiative adopted by the California voters in 1998 that
banned the use of steeljawed leghold traps and certain poisons to capture or
kill wildlife in the state. Among other
provisions, the initiative made it generally illegal to trap furbearing and
nongame animals with steeljawed leghold traps, and to buy, sell or exchange the
fur of animals captured with such traps.
Prior to the passage of Proposition 4,
the U.S. Fish and Wildlife Service (USFWS) had used leghold traps to protect
species listed as endangered and threatened under the Endangered Species Act
(ESA), including clapper rails, western snowy plovers, least terns, salt marsh
harvest mice, and harvester owls, from predators. The USFWS also used leghold traps to protect a variety of bird
species under the Migratory Bird Treaty Act (MBTA). This trapping primarily took place within the National Wildlife
Refuge (NWR) System. The National
Audubon Society challenged the provision of Proposition 4 banning use of
leghold traps, arguing that it was preempted by the ESA, MBTA and National
Wildlife Refuge System Improvement Act (NWRSIA).
After finding that Audubon had standing
to sue and that its claim was both ripe and not moot, the Ninth Circuit held
that California’s ban on the use of leghold traps was preempted by the ESA and
the NWRSIA. (The Court did not address
preemption under the MBTA because none of the parties argued this issue on
appeal.) The Court held that the ban
was preempted by the ESA because the statute made no exception for endangered
species. Thus, it effectively precluded
federal agencies from protecting listed species pursuant to their authority
under the ESA. The Court rejected the
state’s argument that, because it did not construe the statute to apply to
federal trapping programs under the ESA, there was no actual conflict and
therefore no basis for preemption.
Because the state’s interpretation of the statute was “an unlikely reading
of the text,” the Court dismissed this interpretation as a grounds for avoiding
federal preemption.
The Court also rejected the state’s
argument that section 6(f) of the ESA also vitiated any preemption
problem. Section 6(f) expressly
preempts state laws that are less restrictive than the ESA, but authorizes
state laws that are more restrictive than the ESA. Section 6(f) also states
that the ESA “shall not otherwise be construed to void any state law or
regulation which is intended to conserve migratory, resident or introduced fish
or wildlife.” 16 U.S.C. § 1535(f). The state argued that section 6(f) carved
out an exception to the ESA that allowed California to “conserve” animals
through the ban on leghold traps. The
Court however, did not read section 6(f) this way. Instead, it held that although the section “allows the state to
pass laws and promulgate regulations that would conserve wildlife,” it does so
only to the extent that those laws and regulations are consistent with
protection of endangered and threatened species under the ESA. The Court “did not read [this section] to
carve out an exception to the ESA that would allow the state to conserve
wildlife that is not endangered . . . when the effect of that conservation
would be further to endanger species already listed under the ESA.”
The Court also held that the ban on
leghold traps was preempted by the NWRSIA because the ban conflicted with the
USFWS’ statutory management authority on NWRs.
The Court reasoned that, because NWRs are federal lands, Congress has
authority to preempt state action with respect to management of such lands
pursuant to the Property Clause of the U.S. Constitution, and that Congress had
done so through the NWRSIA. Following
the Tenth Circuit’s decision in Wyoming v. United States, 279 F.3d 1214
(10th Cir. 2002), the Ninth Circuit interpreted the NWRSIA’s state
law savings clause (16 U.S.C. § 668dd(m)) as “reflecting Congress’ intent for
ordinary principles of conflict preemption to apply” (quoting Wyoming,
279 F.3d at 1234). The savings clause
provides in pertinent part that “[n]othing in the Act shall be construed as
affecting the authority, jurisdiction, or responsibility of the several States
to manage, control or regulate fish and resident wildlife under State law or
regulations in any area within the System.”
The court held that the savings clause “was not meant to eviscerate the
primacy of federal authority over NWR management.”
Finally, the Court rejected the
argument raised by plaintiff-intervenors (the National Trappers Association,
California Trappers Association, and several individual trappers), that
Proposition 4 was invalid in its entirety under the Commerce Clause of the U.S.
Constitution. The Court held that
Proposition 4 did not have the purpose or effect of discriminating against
interstate commerce, because it applied only to animals trapped inside
California. In fact, to the extent that
Proposition 4 had any discriminatory effect, it was in favor of interstate
commercial activities undertaken by out of state actors, who faced no
restriction on trapping and selling furs.
Nor did Proposition 4 pose an undue burden on interstate commerce
because any costs it indirectly imposed on the trappers were highly
speculative.
Case Summary
Plaintiff National Association of Home
Builders (NAHB) challenged the U.S. Fish and Wildlife Service’s (FWS’s) failure
to disclose information regarding the specific location of endangered pygmy owl
nesting sites pursuant to the Freedom of Information Act (FOIA). Although the FWS had provided numerous
documents regarding the owl to the NAHB, it had redacted the documents to
conceal most of site-specific information, relying on several FOIA
exemptions. The D.C. Circuit reversed
the district court’s decision granting summary judgment in favor of the FWS,
holding that none of the exemptions authorized the FWS to withhold the
requested information.
Exemption 3 (exemption from disclosure
specifically authorized by statute) did not apply because nothing in the ESA
specifically refers to the FWS’ authority to withhold information. The FWS argued that an exemption from
disclosure could be read into section 4 of the ESA, which authorizes the FWS to
refuse to designate critical habitat if it determines that such designation
would not be “prudent.” The Court rejected
this argument, holding that Exemption 3 requires the statute expressly to
exempt particular matters from disclosure on its face.
Exemption 4 (exemption for trade
secrets and commercial or financial information) did not apply because owl-sighting
information did not qualify as “commercial or financial information,” even if
provided pursuant to a federal-state cooperative agreement entered into under
section 6 of the ESA. The Court noted
that the state had provided the owl-sighting data in exchange for receipt of
federal funding for maintaining the data base.
“Such a quid pro quo exchange between governmental entities,” the Court
stated, did not constitute a commercial transaction in the ordinary sense. “No ‘business information’ is involved
[citation omitted], and the owl-sighting data itself is commercial neither by
its nature (having been created by the government rather than in connection
with a commercial enterprise) nor in its function (as there is no evidence that
the parties who supplied the owl-sighting information have a commercial
interest at stake in its disclosure) [citations omitted].”
Exemption 5 (deliberative process
exemption) did not apply because, while the information sought was
pre-decisional, it was not “deliberative.”
The Court drew a distinction between factual information, which
generally must be disclosed, and materials embodying officials’ opinions, which
are ordinarily exempt from disclosure.
Although the fact/opinion distinction is not always dispositive, the
Court stated, in this case it was because “nothing in the requested
site-specific information reflect[ed] an agency’s preliminary positions or
ruminations about a particular policy judgment.” Therefore, the FWS could not invoke the deliberative process
exemption to withhold the requested information.
Finally, Exemption 6 (exemption for
personnel files and similar information) did not apply because, assuming the
information sought constituted “similar information,” the public interest in
disclosure outweighed the privacy interests of individual landowners.
Case Summary
The State of Maine sued the U.S. Fish
and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)
under the Freedom of Information Act (FOIA) for failing to disclose documents
relating to the Services’ efforts to list the Atlantic Salmon under the
Endangered Species Act (ESA). The FWS
provided the state with approximately 1400 documents, but withheld 308
documents claiming they were subject to the work product and attorney-client
privileges. Maine challenged this
withholding. The district court ordered
the FWS to disclose 197 of the documents, and the FWS appealed.
On appeal, the FWS argued that the
trial court erred in: (1) requiring it to demonstrate that each document
withheld on work product grounds was prepared “primarily” for litigation
purposes; and (2) rejecting the FWS’ assertion of attorney-client privilege for
documents that do not reveal confidential communications from agency clients,
but which contain legal advice and analysis from agency attorneys and draft
materials written by agency officials.
The court rejected both of these arguments, reading the FOIA exemptions
for work product and attorney-client privileged information narrowly, and
reading the agency’s general duty to disclose information under FOIA
broadly.
With respect to the work product
privilege, the court held that the FWS was required to show that the document
in question was prepared in anticipation of litigation, and that the prospect
of litigation served as the “primary motivating factor” for the preparation of
the document. The court rejected the
FWS’ argument that the same work product privilege that exists under Fed. R.
Civ. P. 26—where it is sufficient simply to show that a document was prepared
due to the prospect of litigation and not solely for use therein—exists under
FOIA. Furthermore, the agency must
specifically identify the litigation for which the document was created (either
by name or through factual description) and explain why the work product privilege
applies to portions of the documents.
The court rejected the "Vaughn" index
of documents withheld by the FWS in that case on the grounds that the index
failed to demonstrate that any particular document was prepared primarily for
litigation and did not correlate the documents to specific lawsuits. The court stated that “the mere relation of
documents to litigation does not automatically endow these documents with
privileged status,” and that the burden was on the FWS to make the correlation
between each withheld document and the litigation for which the document was
created.
Regarding the attorney-client
privilege, the court held that the FWS must demonstrate that the withheld
documents relate to a confidential fact communicated by the client. The FWS must show that the documents contain
legal analysis that would reveal a confidential factual communication, or that
the documents relate to facts communicated for the purpose of obtaining legal
advice. Here, the court stated, the FWS
had failed to explain, except in the most conclusory way, how the documents
claimed to be protected related to a confidential client communication. The court rejected the FWS’ contention that
the confidential communication requirement is satisfied by demonstrating that
the documents are communications between a client and an attorney. Again, the court found that the index of
withheld documents was inadequate because it did not include any explanation
justifying the privilege, and did not identify any circumstance supporting
express or implied confidentiality.
Analysis
The court’s ruling in this case could
encourage ESA litigants from both sides of the fence to file more FOIA requests
seeking information about FWS or NMFS actions to implement the ESA. The FWS and NMFS now may be required to
disclose information, previously thought to be confidential, regarding their
internal decision making processes, and to make more detailed assertions of
privilege in their Vaughan indexes.
Case Summary
A water user who pumped water from the
Edwards Aquifer challenged the constitutionality of the take prohibition in
section 9 of the Endangered Species Act (16 U.S.C. § 1538(a)(1)(B)). The Edwards Aquifer is home to a number of
threatened and endangered fish, amphibian and plant species. Plaintiff sought a declaration that the
section 9 take prohibition exceeds Congress’ power under the Commerce Clause of
the U.S. Constitution. The Fifth Circuit
Court of Appeals held that plaintiff’s claim was not ripe for judicial review,
and thus there was no “case or controversy” under Article III of the U.S.
Constitution, because the plaintiff did not face sufficient threat of an
enforcement action being brought against him under section 9.
Although the Sierra Club had sent
several sixty day notices of intent to sue to various individuals for pumping
water from the Edwards Aquifer, the court concluded that none of these notices were
directed to the plaintiff in his individual capacity, and in any case the
notices had been followed by years of inaction. The court also found that past litigation concerning the aquifer,
and a newspaper article quoting a U.S. Fish and Wildlife Service employee as
saying that “law enforcement is always an option,” was insufficient to
establish a “specific, concrete threat of immediate litigation.” Thus, plaintiff had not established the
existence of a controversy necessary to obtain a declaratory judgment. Accordingly, the court ordered the district
court to dismiss the case for lack of jurisdiction.
Case Summary
Five environmental groups challenged
the Army Corps of Engineers’ issuance of 23 permits for various kinds of
construction in South Florida, which they alleged adversely affected the survival
of the endangered Florida panther.
Since most of the permitted work had already been completed, plaintiffs
sought to force the Army Corps to engage in a programmatic consultation with
the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered
Species Act (ESA) to develop an overall program for the conservation of the
panther. Plaintiffs alleged that, in
issuing the 23 permits, the Army Corps had erroneously refused to consider the
cumulative effects of future federal activities.
The court held that plaintiffs’
challenge was non-justiciable under the rationale of National Wildlife
Federation v. Lujan, 497 U.S. 871 (1990), because plaintiffs were not
challenging a final agency action as required under the Administrative
Procedures Act. The court reasoned that
the 23 permits were just “examples of what plaintiffs see as rampant
unlawfulness” in the Army Corps’ permitting program, and that plaintiffs were
actually challenging the Army Corps’ entire permitting program. The court held that it did not have
jurisdiction to grant such broad, programmatic relief. Here, as in Lujan, plaintiffs were
improperly attempting to “seek wholesale improvement of the program by court
decree, rather than in the offices of the [agency] of the halls of Congress,
where programmatic improvements are normally made.” Thus, the court dismissed the complaint, but allowed plaintiffs
the option of reasserting an as-applied challenge to the implementation of the
23 permits.
Case Summary
Plaintiffs challenged the Environmental
Protection Agency’s (EPA’s) failure to consult with the U.S. Fish and Wildlife
Service (FWS) and National Marine Fisheries Service (NMFS) under section 7 of
the Endangered Species Act (ESA) before approving the State of New Jersey’s
lists of water quality limited segments (WQLS), and total maximum daily loads
(TMDLs) for such segments, under the federal Clean Water Act. The parties filed cross-motions for summary
judgment on the section 7 claim (and several of plaintiffs’ other claims). The court granted the EPA’s motion as to the
ESA claim, finding the ESA claim moot because the EPA had initiated informal
consultation with FWS and NMFS after the complaint was filed. The court reasoned that, because the alleged
wrong (failure to initiate consultation) had already been remedied, it would be
impossible for the court to grant effective relief. In so holding, the court adopted the Tenth Circuit’s reasoning in
Southern Utah Wilderness Alliance w. Smith, 110 F.3d 724 (10th
Cir. 1997). This case likewise held
that plaintiffs’ section 7 claim for failure to consult was mooted by the
federal agency’s initiation of informal consultation after the suit was filed.
The district court also rejected the
plaintiffs’ argument that the EPA’s post-hoc correspondence failed to comply
with the ESA’s requirement that consultation precede the agency action. The court stated that this argument “begs
the question.” Plaintiffs had obtained
all the relief that they had sought, and it was irrelevant when that relief was
obtained. The court also did not find
it relevant that EPA had not yet completed the consultation process. Finally, the court found that plaintiffs did
not meet the requirements of the “capable of repetition, yet evading review”
exception to the mootness doctrine. In
particular, the court found that plaintiffs had not demonstrated that there was
a reasonable likelihood that EPA would violate section 7 again in connection
with some future action. In fact, the
court concluded, it was impossible for EPA to repeat the same alleged violation
with respect to its approval of the specific WQLS and TMDLs at issue.