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Defenders of Wildlife v. Hodel

Citation: 19 ELR 20822
No. No. 3-86 CIV 757, 707 F. Supp. 1082/(D. Minn., 02/15/1989) Summary judgment for plaintiffs on remand

The court holds that regulations limiting the scope of the Endangered Species Act (ESA) to federal actions occurring within the United States are invalid. The court first holds that while plaintiffs may bear a greater burden in proving standing to sue at the summary judgment stage than they did for their motion to dismiss, defendant's new evidence does not warrant a different analysis at this stage. The court then holds that the ESA requires federal agencies to abide by the statute's consultation requirement for projects taking place in foreign countries. ESA § 7 clearly states that consultation must occur whenever an action jeopardizes an endangered species. Congress' concern with the international aspects of the species extinction problem is unmistakable, and appears in numerous provisions of the ESA. Moreover, language in § 9 limiting the ESA's prohibitions to activities taking place in the United States indicates that Congress could make the distinction when it chose to do so. Section 4 provides for the listing of all endangered and threatened species, including species not native to or present in the United States. Finally, in 1978 Congress passed amendments to § 7 and noted that it was retaining existing law. At that time, the "existing law" included regulations that required consultation for projects occurring abroad.

[Earlier decisions from this litigation appear at 17 ELR 20882 and 18 ELR 21343.]

Counsel for Plaintiffs
Brian B. O'Neill
Faegre & Benson
2300 Multifoods Tower, 33 S. Sixth St., Minneapolis MN 55402-3694
(612) 371-5300

Counsel for Defendant
Lee M. Kolker
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4185