Endangered Species Act – Animal Law Developments

February 27, 2025February 27, 2025 by John M. Simpson

U.S. Supreme Court Limits “Prevailing Party” Status for Attorney’s Fee Recovery by Plaintiffs

The U.S. Supreme Court’s recent opinion in Lackey v. Stinnie, No. 23-621 (U.S. Feb. 25, 2025), clarified for plaintiffs what it means to be a “prevailing party” for recovery of attorney’s fees. While the case arose under the attorney’s fee provision for civil rights cases – 42 U.S.C. § 1988(b) – the holding has broader implications for federal court litigation, particularly where the only relief sought by the plaintiff is injunctive relief.

The case was a civil rights challenge by Virginia automobile drivers pursuant to 42 U.S.C. § 1983, claiming that they were denied due process by a Virginia statute that required suspension of their drivers’ licenses without sufficient notice or hearing for failure to pay parking tickets and the like, with the suspension lasting until the fine was paid or a payment plan established. The district court granted a preliminary injunction, finding that plaintiffs were likely to prevail on their constitutional claim. Before the case could be tried, the state legislature repealed the statute at issue, and the parties, agreeing that the case was moot, stipulated to dismissal. Plaintiffs then sought recovery of their attorney’s fees under section 1988(b), which permits an attorney’s fee award to a “prevailing party,” inter alia, in a section 1983 case. Plaintiffs argued that, by obtaining a preliminary injunction that, in all likelihood, led to the repeal of the statute, they were “prevailing parties.” The Fourth Circuit, sitting en banc, agreed with plaintiffs, but the Supreme Court, in an opinion by Chief Justice Roberts, reversed.

Relying on a legal dictionary definition of “prevailing party” contemporaneous with the enactment of section 1988(b) – a party who successfully prosecutes the action – the Court reasoned that, because a preliminary injunction is based only on a likelihood of success on the merits, the plaintiff who obtains such relief has not “prevailed:”

Because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party status. A plaintiff who secures a preliminary injunction has achieved only temporary success at an intermediary “stage[ ] of the suit.” Black’s Law dictionary 1352. It cannot yet be said that he will “ultimately prevail[] when the matter is finally set at rest” or that he will have “successfully maintained” his claim “at the end.” Ibid. And external events that render a dispute moot do not convert a temporary order designed to preserve the status of the parties into a conclusive adjudication of their rights. [Slip op. at 7.]

According to the Court, its ruling “serves the interests of judicial economy. A straightforward, bright-line rule is easy to administer, reducing the risk of a ‘second major litigation’ over attorney’s fees.” [Slip op. at 10]. In this regard, the Court dismissed the plaintiffs’ concern that a defendant could “strategically moot” a case and avoid an award of attorneys’ fees if it feared ultimately losing the case. The Court noted that plaintiffs with damage claims would not face that threat and, even in cases seeking only injunctive relief, the case does not become moot if the challenged conduct is capable of repetition yet evading review. [Slip op. at 10]. At bottom, it is up to Congress to decide whether attorney’s fees should be awarded to plaintiffs who achieve some success but do not prevail – as is the case with Freedom of Information Act claims where plaintiffs can seek legal fees if they “substantially prevail[].” Id. at 11 (citing 5 U.S.C. § 552(a)(4)).

The Court did, however, limit its ruling to prevailing plaintiffs:

Our decision today should not be read to affect our previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question we left open whether a defendant must obtain a preclusive judgment in order to prevail. See CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 431-434 (2016). As we have explained, “[p]laintiffs and defendants come to court with different objectives.” Id., at 431. [Slip op. at 9 n.*].

The decision in Lackey is likely to have implications beyond section 1988(b). Several federal statutes award legal fees to “prevailing parties.” In some regulatory cases, the preliminary injunction is in fact the main event of the case. For example, animal rights activists often file lawsuits under the National Environmental Policy Act or the Endangered Species Act, seeking to enjoin individual transactions or other activities by businesses who use animals for various purposes. The granting of a preliminary injunction, even though it is not a final determination of the merits of the case, could spell the end of the defendant’s project, either because the opportunity for the transaction has come and gone or the defendant does not have the resources to further litigate the case. Yet, in such circumstances, the plaintiff would not be entitled to seek attorney’s fees under the rationale of the Lackey case.

Whether Lackey has the result of cutting down on litigation by plaintiffs in in the regulatory sphere remains to be seen. However, that is what the dissenting opinion by Justice Jackson predicts. She points to research on the effect of the Court’s rejection of the “catalyst theory” in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health & Hum. Resources, 532 U.S. 598 (2001), i.e., the theory that a plaintiff “prevails” if its suit was the catalyst for the defendant’s change in conduct. According to the dissent, Buckhannon “had the predictable practical effect of discouraging public interest organizations and private attorneys from taking on civil rights actions.” [Dissenting op. at 18].

January 23, 2025January 24, 2025 by Michelle Pardo

How the Delta Smelt Swam Into a Political Firestorm

by Michelle C. Pardo

Southern Californians have been reeling from the devastation caused by the recent record-breaking wildfires and now face the daunting task of rebuilding their lives. As is the case in the wake of many disasters, a need for answers and accountability as to what caused or contributed to the disaster remains paramount. Just days after the fires started, headlines suggested that a small, nondescript fish – the Delta smelt (Hypomesus transpacificus) is to blame for the Palisades and other Los Angeles area wildfires. Did environmental protections for the Delta smelt really cause a statewide water crisis? Or is the Delta Smelt blame game but a fishy theory that has become a political football?

The Delta smelt is a 2-2.8 inch long fish that lives in the Sacramento-San Joaquin River Delta – a place that has been the center of the fight over water in California. Once present in abundance, the smelt began its decline around the mid-20^th century and is now nearing extinction. Most Delta smelt live for only one year and even temporary environmental conditions can greatly affect their population. The largest impact on the fish has occurred after extended periods of drought, which increased the need for California’s cities and farms to pump more delta water – leaving the fish with less fresh, cold water. Other threat factors include disease, competition (including with invasive clams and mussels that were introduced to the river) and predation. Additionally, pumps operated by the state and federal government can suck smelt and other fish into the system.

The Delta Smelt’s Protections

The listing of the Delta Smelt – first, in 1993 as threatened under the federal Endangered Species Act (ESA) and the state analog, California Endangered Species Act (CESA), and later uplisted to endangered in California (2010) – affects how much water can be pulled from the delta.

When listed as threatened or endangered under the federal ESA, several protections kick in. The ESA makes it illegal to import, export, take, posses, sell or transport an endangered species. 16 U.S.C. § 1538. It also provides that land or water necessary for the survival of the species may be designated as “critical habitat.” While the designation of critical habitat does not prevent all development or other activities in a designated area, activities that involve a federal permit, license or funding and are likely to destroy or adversely modify critical habitat, must undergo analysis and amendments to the project to proceed without adversely affecting critical habitat. Highly-charged disputes often occur when the government uses controversial or methods not ground in accepted science to assess what areas are actually occupied by the species and what physical and biological features a species needs to survive.

According to the U.S. Fish and Wildlife Service, “An area may be excluded from critical habitat designation based on economic, national security, or other relevant impacts. In some cases, we may determine that the benefits of excluding it outweigh the benefits of including it.” https://www.fws.gov/sites/default/files/documents/critical-habitat-fact-sheet.pdf.

While an oversimplification of a complex issue, this is where the competing interests of those cities and farms that have a desperate need for water come head to head with the needs of the Delta smelt and other fish endemic to California to survive.

Swimming Into Political Controversy

California’s water management policies have long clashed with environmentalists, agricultural interests and urban planners. Why? As it turns out, water is universally necessary, but agricultural, fishing, municipal and wildlife uses all have different priorities.

During President Trump’s first Administration, new rules would have allowed farmers to access more water from California’ s largest river systems. Environmentalists claimed it would push the Delta smelt and other species to the brink of extinction. In 2019, two federal agencies issued biological opinions under the ESA that despite finding federal action would not jeopardize listed species, the water projects actually reduce protections for the species and their critical habitat in contravention of the ESA and its purpose. An ESA biological opinion – required when a federal agency is authorizing, funding or carrying out an action – is a document that analyzes how a proposed action may impact listed species and critical habitats. 16 USC § 1536(a)(2). If the federal action is likely to harm or jeopardize the listed species, the government may propose alternatives that will minimize the effect on the listed species, or scrap the project. 16 USC § 1536 (b)(1)(3)(A).

In 2020, California sued the federal government, alleging that the biological opinions “failed to take a ‘hard look’ at the environmental impacts of planned the federal water project.” The lawsuit further alleged:

The Central Valley Project harms ESA-listed fish species in the Sacramento River and San Joaquin River watersheds by, for example, directly taking fish at the project’s South Delta pumping facility, redirecting fish from their migratory pathways, and altering the species’ natural habitat. Habitat alterations resulting from project operations include changes to river flow, hydrology, salinity, and water temperature.

Becerra v. Ross et al., No. 3:20-cv-01299 (N.D. Cal) at p. 8.

The Trump Administration described the lawsuit as a “catastrophic halt” of “enormous amounts of water to flow from the snow melt and rainwater in rivers in North California to beneficial use in the Central Valley and Southern California.”

Fast forward to January 7, 2025, when parts of Southern California was hit with the most devastating wildfires on record. The wildfires – and what contributed to them – has revived this contentious debate. The Delta smelt – previously described by President Trump as “an essentially worthless fish” was targeted as the culprit for why farmers and cities had limitations on the amount of water they could receive.

But in addition to the water needed by farmers and major cities, endangered and threatened species like the Delta smelt require their own flow of fresh water, known as “outflow.” Without the needed outflow, salt water can move upstream making the delta waters too brackish and potentially harm certain species of fish. To counter this risk, water must be allowed to flow out of the system. The flows needed to protect the region’s ecosystem – which help support migration and spawning of delta smelt, salmon, longfin smelt and other fish species, – account for about 10% of all available flows. Some have called the wildlife-protection outflow as having an insignificant role in water projects.

Governor Newsom’s office rebuffed President Trump’s claims, denying that President Trump ever asked him to sign a “water restoration declaration” and others insist that the Delta smelt is not the source of the controversy regarding water projects.

On January 20, 2025, just hours into his second term, President Trump signed an executive order directing federal agencies to route more water from across the state. In a Memorandum to the Secretary of Commerce and the Secretary of the Interior titled: “Putting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California” https://www.whitehouse.gov/presidential-actions/2025/01/putting-people-over-fish-stopping-radical-environmentalism-to-provide-water-to-southern-california/, President Trump directed the Secretaries of Commerce and Interior to:

“immediately start” the work from his first Administration to “route more water from the Sacramento-San Joaquin Delta to other parts of the state for use by the people there who desperately need a reliable water supply.”

The Memo requires the Secretaries of Commerce and the Interior to report to the President regarding progress made in implementing policies in the memo and providing recommendations regarding future implementation.

Governor Gavin Newsom and others in California regulatory agencies have disputed that the Delta smelt and its environmental protections are to blame for water shortages in the state (while also disputing the fact or extent of water shortages in the first place). Some scientists insist that hydrology and outflow to ensure freshwater for human use has much more of an effect on the projects ability to deliver water than the current ESA safeguards. Regardless of who is right, President Trump has suggested that federal disaster aid to recover from the wildfires may be conditioned upon California cooperating with federal government water policies, making it difficult for the state to cling to existing water policy.

One thing remains clear: as urban development continues, and natural resources grow scarce, the clash between a state or municipality’s ability to deliver necessary resources in a manner that does not risk extinction of threatened or endangered species will likely continue.

June 23, 2023August 8, 2023 by Michelle Pardo

D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales

By Michelle C. Pardo

On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the “benefit of the doubt” to endangered species or rely on worst-case scenarios or pessimistic assumptions in preparing biological opinions required by the Endangered Species Act (ESA). Maine Lobstermen’s Association v. National Marine Fisheries Service (D.C. Cir. June, 16, 2023) (slip opinion). Continue reading “D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales”

June 27, 2022 by Rebecca E. Bazan

“Habitat” Flip Flop – Fish and Wildlife and National Marine Fisheries Services Rescind Trump Administration Definition of “Habitat”

Shortly after the new regulatory definition of “habitat” went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.

The Endangered Species Act (ESA) has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). One of the ways it purports to do so is through the designation and protection of “critical habitat.” The Secretaries of the Interior (FWS) and Commerce (NMFS) designate “critical habitat” for threatened and endangered species. 16 U.S.C. § 1533(a)(3)(A)(i). Once “critical habitat” is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will “result in the destruction or adverse modification” of the “critical habitat.” 16 U.S.C. § 1536(a)(2).

The term “critical habitat” is defined by the ESA itself, 16 U.S.C. § 1532(5)(A), but the broader term “habitat,” is not. This may seem insignificant, but the difference between “critical habitat” and “habitat” became—one might say, critical—in the Supreme Court’s 2018 opinion Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018). There, the Supreme Court held that an area cannot be designated a “critical habitat” unless it is also a “habitat,” which does not have a statutory definition. Id. at 368-369. The Supreme Court commented that “the statutory definition of ‘critical habitat’ tells us what makes habitat ‘critical,’ not what makes it ‘habitat.’” Id. at 368. The case, however, did not address what is or should qualify as “habitat.”

In response to this decision, FWS and NMFS promulgated the following regulatory definition of “habitat”: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” 50 C.F.R. § 424.02. The “habitat definition rule” was published on December 16, 2020 became effective on January 15, 2021.

Then came a change in administration and an about-face on the “habitat definition rule.” On January 20, 2021 President Biden issued an Executive Order that required agencies to review federal regulations and actions taken between January 20, 2017 and January 20, 2021 (i.e., during the Trump administration) to determine their consistency with the Biden administration’s policy considerations.

Following that review, the agencies (FWS and NMFS) decided to rescind their own “habitat definition rule.” 87 FR 37757. They noted that the regulatory definition was unclear, confusing, and inconsistent with the conservation purposes of the ESA. Id. The agencies’ main criticism of their own previous rule is that it prevented the designation of areas that did not currently meet a species’ needs, even if the area could in the future do so due to natural processes or reasonable restoration. Id. at 37758. Rather than replace it with a different definition of “habitat,” however, the agencies determined that there should not be a single regulatory definition and that the determination should be made on a case by case basis. Id. at 37759.

The agencies gave a somewhat dissatisfying acknowledgement to the Weyerhaeuser case that set off this regulatory whiplash: “[W]e recognize the importance of the Supreme Court’s ruling in Weyerhaeuser and intend to designate as critical habitat only areas that are habitat for the given listed species.” Id. In other words, while the agencies now claim that it is impossible for them to define “habitat,” they apparently know it when they see it.

Seem clear as mud? We would not be surprised if there is future litigation regarding what constitutes “habitat,” now that the Supreme Court has made it clear that falling within the statutory definition of “critical habitat” is not sufficient and there is not currently a case law, statutory, or regulatory definition of “habitat.”

April 5, 2022 by John M. Simpson

Ecuadorian Animal Rights Decision is Mixed Bag

Animal rights activists have pointed to a recent decision by the highest court in Ecuador — the Constitutional Court (Corte Constitucional Del Ecuador) — as a breakthrough for animal rights. As the NonHuman Rights Project (NHRP) described it, the decision “constitutes one of the most important advances in the field of animal rights and environmental law in recent years. . . . The Court’s groundbreaking ruling advances the constitutional protection of animals — ranging from the level of species to the individual animal — with their own inherent value and needs.”

Upon closer examination, the Court’s Final Judgment is not as far-reaching as has been claimed. Continue reading “Ecuadorian Animal Rights Decision is Mixed Bag”

May 27, 2021 by John M. Simpson

D.C. Circuit Affirms Dismissal of Activist Group’s Case Against Fish & Wildlife Service

Affirming a district court decision that we reported on last year, the U.S. Court of Appeals for the District of Columbia Circuit recently found that the Center for Biological Diversity (CBD) had no standing in a case claiming that the U.S. Fish & Wildlife Service should have utilized notice and comment procedures when it created its framework for making species status assessments under the Endangered Species Act. Center for Biological Diversity v. Haaland, No. 20-5088 (D.C. Cir. May 25, 2021) (per curiam). The appellate court agreed with the district court that CBD had shown no Article III “injury in fact.” Continue reading “D.C. Circuit Affirms Dismissal of Activist Group’s Case Against Fish & Wildlife Service”

March 4, 2021 by John M. Simpson

Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA

Today, in her first published opinion on the Supreme Court, Justice Barrett delivered the majority opinion in U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. Mar. 4, 2021), a Freedom of Information Act (FOIA) case involving whether draft biological opinions of the Fish and Wildlife Service and National Marine Fisheries Service were exempt from public disclosure. The Court ruled that they were, and overturned a contrary determination by the Ninth Circuit. Continue reading “Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA”

October 15, 2020October 15, 2020 by John M. Simpson

Federal Court Enjoins California Ban on Sale of Alligator and Crocodile Parts

by John M. Simpson.

On Tuesday, a federal district court in California enjoined the enforcement of Cal. Penal Code § 653o which criminalizes the sale and possession for sale of alligator and crocodile parts in California. April in Paris v. Becerra, No. 2:19-cv-02471-KJM-CKD, consolidated with Louisiana Wildlife Fisheries Comm’n v. Becerra, No. 2:19-cv-02488-KJM-CKD (E.D. Cal. Oct. 13, 2020). Plaintiffs, business interests importing alligator and crocodile parts into California, brought the action against the California Attorney General and the Director of the state Department of Fish and Wildlife. The law had been slated to take effect on January 1, 2020, but had been suspended pursuant to a stipulated retraining order pending the court’s decision on the preliminary injunction motion. Continue reading “Federal Court Enjoins California Ban on Sale of Alligator and Crocodile Parts”

June 24, 2020June 25, 2020 by John M. Simpson

Animal Rights Challenge to FWS Sport Trophy Decision Fails in D.C. Circuit

by John M. Simpson.

In Center for Biological Diversity v. Bernhardt, ___ F.3d ___, No. 19-5152 (D.C. Cir. June 16, 2020), the U.S. Court of Appeals for the District of Columbia Circuit recently affirmed a district court’s rejection of a challenge by animal rights groups to a decision by the U.S. Fish & Wildlife Service (FWS) to withdraw blanket findings as to whether the importation under the Endangered Species Act (ESA) of certain sport trophies of “threatened” species taken in other countries would enhance the survival and not be detrimental to the survival of those species. Continue reading “Animal Rights Challenge to FWS Sport Trophy Decision Fails in D.C. Circuit”

February 14, 2020 by John M. Simpson

D.C. District Court Dismisses Endangered Species Act Case for Lack of Article III Standing

by John M. Simpson.

A U.S. District Court in the District of Columbia recently dismissed a lawsuit brought under the Endangered Species Act (ESA) and the federal Administrative Procedure Act by the Center for Biological Diversity (CBD) against the Secretary of the Interior and the U.S. Fish and Wildlife Service (FWS). Center for Biological Diversity v. Bernhardt, No. 18-2576 (RC) (D.D.C. Feb. 12, 2020). CBD asserted that FWS’s guidelines for species-specific species status assessments (SSA’s) were issued without the requisite notice and comment. The guidelines for species-specific SSA’s provide an analytical framework for the agency’s listing and critical habitat decisions under the ESA. The court dismissed the case for lack of Article III standing. Continue reading “D.C. District Court Dismisses Endangered Species Act Case for Lack of Article III Standing”