9th circuit tells feds to obey ESA

From ANIMAL PEOPLE, July/August 1998:

SAN FRANCISCO––The 9th U.S.
Circuit Court of Appeals ruled on June 24
that the federal Bureau of Reclamation must
obey both the Endangered Species Act and
California state species protection laws in
allocating water to Central Valley farmers,
even though so doing may put the bureau in
violation of 40-year-old water use contracts.
If the ruling survives an expected
appeal to the Supreme Court by the defendants,
it may be invoked to help compel
other federal agencies to conform to the ESA,
a frequent point of contention in cases
involving everything from fencing along the
U.S./Mexican border to the failure of the
National Marine Fisheries Service to inspect
shipments of shark fins passing through
Hawaiian airports en route from foreign fishing
vessels to markets in Japan.

As Carroll Cox of EnviroWatch
argues, seeking legal help to bring transshipments
of shark fins before the 9th Circuit,
such traffic is presently allowed almost without
restriction, even though many of the
sharks who are caught and definned may be
protected under the ESA, along with monk
seals and cetaceans who are sometimes
caught in shark nets on the high seas, beyond
U.S. jurisdiction over fishing methods.
The Southwest Center for Biodiversity
already had another such case pending,
filed against the U.S. Forest Service on
June 18 for allegedly not protecing endangered
species when awarding timber and
grazing permits in the Cleveland, Los
Angeles, Los Padres, and San Bernardino
National Forests.
In yet another pending case pitting
the ESA against federal contracts, the
National Wildlife Federation in late May
notified the Federal Emergency Management
Agency and Interior Secretary Bruce Babbitt
that unless FEMA more actively implements
a 1994 federal court order to protect endangered
species as part of the management of
federally subsidized flood insurance policies,
it will again file against FEMA.
The 9th Circuit is meanwhile
expected to set further precedent involving
the ESA in July, when it is expected to rule
on whether to indefinitely extend a restraining
order against building a new high school
at a sensitive site in the Amphitheatre School
District, north of Tucson.
U.S. District Judge Frank Zapata
issued the restraining order in early June,
even though he ruled both then and previously
that Defenders of Wildlife and the
Southwest Center had not proved that the
project would harm the endangered cactus
ferruginous pygmy owl. Zapata did recognize
evidence that the owl had used part of
the site in the past. At issue is whether this
evidence means the site is critical habitat.
The U.S. Fish and Wildlife Service
counted 31 cactus ferruginous pygmy owls in
Arizona this spring, up from just 12 in 1997.
Now found mainly in Mexico, the owl formerly
ranged to the edge of the pine woods
north of Phoenix.
Although the 9th Circuit is widely
believed to be by far the friendliest U.S. federal
court toward animals, the Supreme
Court has also recently shown impatience
with cases filed with apparent intent to circumvent
the ESA. On June 21, for instance,
the Supreme Court rejected without comment
a claim by San Bernardino County, California,
that the constitution does not allow
use of the ESA to protect species which occur
only on private property within a single state,
since––the county claimed––the fate of such
a species does not affect interstate commerce.
The case, involving the Delhi
Sands flower-loving fly, of San Bernardino
and Riverside counties, was filed in 1995 by
a coalition led by the National Association of
Home Builders and the Building Industry
Legal Defense Foundation. Had their claims
been upheld, more than 500 of the 1,082
species now federally listed as threatened or
endangered might have lost their ESA protection,
but the argument failed at every level of
the federal court system.