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
by Michelle C. Pardo
You may have heard the well-known proverb, “a man who is his own lawyer has a fool for his client.” It stands for the concept that while individuals in our country are free to represent him or herself in a criminal or civil trial – acting pro se – many caution that this is not the wisest course.
The issue is even more precarious when an attorney attempts to participate as a fact witness in a case he or she has brought. Rule 3.7 of the ABA Model Rules of Professional Conduct (a rule substantially echoed in many jurisdictions) states that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” This rule applies absent certain narrow circumstances, such as the testimony relates to an uncontested issue or the nature and value of legal services. The reason for the rule is straightforward: combining roles of advocate and witness can prejudice the court and the opposing party and create a conflict of interest between lawyer and client.
Friends of Animals, an animal rights organization headquartered in Connecticut, recently was called out by a federal judge in Oregon when its in-house counsel, Michael Harris, tried to serve as a declarant in support of Friends of Animals’ summary judgment motion. The declaration was intended to establish the requisite “injury in fact” for Friends of Animals’ members to establish a critical element of “standing” – the threshold inquiry that permits a litigant to have an injury remedied by the federal courts. Continue reading The Pitfalls of Serving as Activist Attorney and Client: Should We Give A Hoot?
by John M. Simpson
On August 6, 2018, the U.S. Court of Appeals for the Fourth Circuit granted a petition setting aside an Incidental Take Statement (ITS) of the U.S. Fish and Wildlife Service (FWS) which had been issued under the Endangered Species Act (ESA) in connection with the approval of the Atlantic Coast Pipeline, a 600-mile natural gas pipeline proposed to run through parts of West Virginia, Virginia and North Carolina. Sierra Club, et al., v. U.S. Dep’t of the Interior, Nos. 18-1082 & 18-1083 (4th Cir. Aug. 6, 2018). Continue reading Fourth Circuit Vacates Incidental Take Statement for Gas Pipeline
by John M. Simpson
The National Marine Fisheries Service (NMFS) published final regulations in the Federal Register on July 27, 2918 governing the unintentional taking of marine mammals incidental to fisheries research conducted in the Pacific Ocean by the NMFS’ Northwest Fisheries Science Center (NWFSC). 83 Fed. Reg. 36370 (July 27, 2018). The regulations are effective from August 27, 2018 through August 28, 2023. Continue reading Fisheries Service Issues Incidental Taking Regulations
By John M. Simpson
In United States v. Obendorf, ___ F.3d ___, No. 16-30188 (9th Cir. July 9, 2018), a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the conviction of an Idaho man who had been charged with a violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703-712, which, among other things, prohibits the baiting of migratory birds to facilitate hunting them. The indictment charged that the defendant, a farmer, had directed one of his corn fields to be harvested by strip-combining, in which alternating corn rows were left untouched, and such that excessive amounts of corn were left on the ground. This was in apparent contrast to the defendant’s other corn fields that had been “neatly combined and fully harvested.” Slip op. at 4. Continue reading Court Affirms Duck Baiting Conviction
By John M. Simpson
On June 26, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed the conviction of a Montana man who had been convicted of a criminal violation of the Endangered Species Act (ESA) for shooting and killing a grizzly bear that was harassing the horses in a pasture behind the defendant’s rural home. United States v. Charette, ___ F.3d ___, No. 17-30059 (9th Cir. June 26, 2018). The government had charged the defendant with one count of “taking” a threatened species in violation of the ESA. The defendant was convicted in a bench trial before a magistrate judge, and the conviction was affirmed by the district court. Continue reading Grizzly Bear “Taking” Conviction Reversed by 9th Circuit