Ninth Circuit Rejects Activist Appeal in Endangered Dugong Case

by John M. Simpson.

On May 6, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment to the government in a case brought by the Center for Biological Diversity and other plaintiffs to challenge a decision by the Department of Defense (DOD) approving a plan to construct a replacement aircraft base in Okinawa, Japan, for the U.S. Marine Corps.  Center for Biological Diversity v. Esper, __ F.3d __, No. 18-16836 (9th Cir. May 6, 2020).  In this case, which had originated in 2003, the issue was whether DOD had complied with section 402 of the National Historic Preservation Act (NHPA), 54 U.S.C. § 307101(e). Continue reading “Ninth Circuit Rejects Activist Appeal in Endangered Dugong Case”

The Case of the Austin Blind Salamander

By Michelle Pardo

Question: What do you get when you cross an Austin Blind salamander, a Barton Springs salamander, a golden-cheeked warbler, and a Texas highway project?

Answer: An Endangered Species lawsuit.

On February 28, 2019, environmental advocacy group Save Our Springs (SOS) and frequent litigator Center for Biological Diversity (Center) sent a 60-Day Notice of Intent to Sue letter to the Texas Department of Transportation (TexDOT), the US Department of Interior and the US Fish and Wildlife Service (FWS), which is a prerequisite to filing a lawsuit pursuant to the  Endangered Species Act (ESA).

The ESA is a federal law that prohibits the “taking” of threatened and endangered species, 16 USC § 1538; “take” has means to harass, harm, pursue, hunt, shoot, would, kill, trap, capture or collect (or attempt such conduct).

The environmental groups claim that the construction of the MoPac Intersections Project, a federally-funded highway project for which the TexDOT is the lead agency, risks an illegal “take” of three endangered species. According to the city of Austin’s official government website, the Austin Blind Salamander gets its name because it does not have “image-forming eyes”, a result of living in its dark, underground habitat in the waters of Barton Springs. The aptly-named Barton Springs salamander shares this same habitat. The other critter named in the potential lawsuit – the golden-cheeked warbler – was one of the eight endangered species protected by the first major urban habitat plan in the country. The groups claim that tree removal due to construction impacts the warbler’s nesting and foraging behaviors. Continue reading “The Case of the Austin Blind Salamander”