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Last modified
1/26/2010 12:51:31 PM
Creation date
10/11/2006 11:53:58 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8065
Description
Section D General Statewide Issues - Endangered Species Act - Fisheries
State
CO
Basin
Statewide
Date
8/1/1993
Author
American Bar Associa
Title
Natural Resources and Environment - Number 8-Volume 1 - Summer 1993 - Endangered Species Protection
Water Supply Pro - Doc Type
Publication
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<br />o 0 2.~ 31 <br /> <br />Key to whether <br />reinitiation is <br />required under one <br />oJ the changed <br />circumstances is <br />whether continuing <br />'federal agency <br />action" exists with <br />respect to the given <br />activity. <br /> <br />18 <br /> <br />Forest System lands pursuant to FLPMA special <br />use authorizations, see, e.g., Cabinet Moun- <br />tains Wilderness v. Peterson, 685 F.2d 678 <br />(D.C Cir. 1982), and Wilson v. Block, 708 <br />F.2d 735 (D.C Cir 1983); and federally fi- <br />nanced state highway depanment projects pur- <br />suant to the Federal.Aid Highway Act, see, e.g., <br />National Wildlife Fed'n v. Coleman, 529 F.2d <br />359. <br />The second factOr is understanding the sec- <br />tion 7 trigger is that, to initiate or reinitiate <br />consultation, the federal agency action must be <br />of a kind that "may affect" listed species or <br />designated critical habitat. 50 CF.R. S; 402.14 <br />(1991). This causative connection is key. Marin <br />Audubon Soc)' v. Seidman, 1991 u.S. Dist. <br />LEXIS 17,322 (N.D. Cat 1991), is illustrative <br />of this point. Therein, the FDIC sold a note in <br />the course of its duty to liquidate failed finan- <br />cial institutions. The propeny securing the note <br />was alleged to be wetland habitat for the fed- <br />erally endangered salt marsh harvest mouse. The <br />Marin Audubon Society challenged the sale of <br />the note on the grounds that the FDIC violated <br />section 7 by failing to consult with FWS before <br />the transaction. The U.s. District Coun for the <br />Nonhern District of California disagreed, con- <br />cluding that this was not the type of action con- <br />templated by section 7 because it did not stand <br />to affect any listed species or critical habitat. <br />The coun stated that, although the term "agency <br />action" is to be interpreted broadly, "the stat- <br />ute is not intended to apply to all federal.agency <br />actions." The court reasoned: <br /> <br />[IJt is commonplace "that a literal interpreta- <br />tion of the words of a statute is not always a <br />safe guide to its meaning. (Citations omitted.] <br />The facial inclusion indicated by a literal read- <br />ing of the statute would encompass vinually all <br />activities or programs of any federal agency ir~ <br />respective of the inconsequence of such ac[iv~ <br />ities or programs to the purposes of Section 7 <br />or to the ESA. A literal reading of Section 7 would <br />suggest that the United States Department of <br />Justice in Washington D.C. must consult with <br />the FWS prior to scheduling and/or having hs <br />attorneys aaend a conference in San Francisco <br />involving issues of public corruption. Similarly, <br />before the United States Consumer Product <br />Safet)' Commission may proceed whh the prom- <br />ulgation of regulations concerning bunk beds, <br />toy chests or infam products, it must consult <br />with the FWS. The over inclusiveness in terms <br />of the range and diversity of federal "agency <br />actions" technically embraced by Section 7 is <br />so great that it is patem that such an imerpre- <br />taHon is not contemplated by the statute. <br /> <br />Although the subject of the action was secured <br />by propeny that was alleged to be wetland hab- <br />itat for the endangered mouse, the FDIC's ac- <br />tion had neither a direct nor indirect effect on <br />the mouse or its environment. Transfer of the <br /> <br />NR&E/SUMMER 1993 <br /> <br />nOte was, to use the court's terminology, "en- <br />vironmentally neutral" with regard to its poten- <br />tial impact on the mouse and its habitat. The <br />coun noted that no evidence had been pre- <br />sented indicating that transfer of the note would <br />have permitted previously precluded uses, au- <br />thorized development, or effected any changes <br />in the propeny. The coun accordingly held that <br />plaintiff had failed to state a claim under the <br />ESA. See also Lundberg, Bird, Bunnies and the <br />Furbish Lousewort- Wildlife and Mining on <br />the Public Lands, 24 RocKY MTN. MIN. L INST. <br />93, 112-13 (1979) (citing issuance of refund <br />check by the Internal Revenue Service to a mine <br />operator, who utilizes the refund to bulldoze <br />and destroy endangered plant spccies. as an ex- <br />ample of federal agency "action" that cannot <br />be deemed subject to the ESA). <br /> <br />Reinitiation Criteria <br /> <br />The ESA Regulations provide that reinitia- <br />tion of formal seCtion 7 consultation is required <br />when the following "changed circumstances" <br />arise subsequent to issuance of a biological <br />opinion: <br /> <br />a) The amount or extent of taking speci- <br />fied in the incidental take statement is ex- <br />ceeded; or <br />(b) New information reveals effects ofthe <br />action that may affect listed species or critical <br />habitat in a manner or to an extent not previ- <br />ously considered; or <br />(c) The identified action is subsequently <br />modified in a manner that causes an effect to <br />the listed species or critical habitat that was not <br />considered in the biological opinion; or <br />(d) A new species is listed or critical hab. <br />hat designated that may be affected by the iden. <br />tined action. <br /> <br />50 CF.R. S; 402.16 (1991). Key to whether <br />reinitiation is in fact required under one of the <br />above changed circumstances, however, is <br />whether continuing "federal agency action" <br />exists with respect to the given activity. This <br />jurisdictional requirement is recognized in the <br />lead-in language to the regulatory provision <br />governing reinitiation: <br /> <br />Reinitiation of formal consultation is required <br />and shall be requested by the Federal agency or <br />by the Service, where discretionary Federal in- <br />volvement or control over the action has been <br />retained or is authorized by law and [there <br />arises one or more of the changed circum- <br />stances listed in subparagraphs (a) through (d) <br />above]. <br /> <br />Id. (emphasis added). See also Explanatoty Ma- <br />terial accompanying publication of the final <br />rule, 51 Fed. Reg. 19,926. 19,956 Oune 3, <br />1986) ("The reinitiation requirement applies <br />only to actions that remain subject to some Fed- <br />
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