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Tinoqui-Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. Department of Energy

ELR Citation: 31 ELR 20286
Nos. No. 99-16384, 232 F.3d 1300/(9th Cir., 11/20/2000)

The court holds that although the sale of an oil field in California did not moot environmental groups' claims against the U.S. Department of Energy (DOE) for violating the Endangered Species Act's (ESA's) consultation provisions, the National Defense Authorization Act (NDAA) relieved DOE of its obligations to reinitiate consultations with the U.S. Fish and Wildlife Service (FWS) before selling the land. In 1995, FWS issued a biological opinion and incidental take statement to DOE allowing it to continue oil and gas development of the oil field as long as certain mitigation measures were employed. In 1996, Congress passed the NDAA directing DOE to sell the oil field within two years of the statute's effective date. A year later, DOE accepted a purchase offer from a petroleum company that agreed to accept the terms of the incidental take statement, but DOE did not reinitiate consultations under the ESA with FWS. After the environmental groups failed to obtain a preliminary injunction to stop the sale, the sale was completed. The court first holds that the district court erred in concluding that the sale's completion mooted the environmental groups' ESA claims against DOE. The mere conveyance of property to another does not moot a dispute regarding the legality of the conveyance. Additionally, the alleged harm to the environment could be ameliorated or avoided through a rescission of the contract. Although the purchaser raised several practical considerations that counsel against rescission, none of the considerations affects DOE's ability to accept reassignment of the property. The court next holds, however, that the NDAA waived DOE's duty to reinitiate consultations under ESA §7 and, therefore, DOE did notviolate the ESA by selling the property. Although the NDAA does not explicitly mention ESA §7, it permits the transfer of the incidental take statement. Because the incidental take statement is generally nontransferable, this provision reflects Congress' intent to permit the purchaser to continue operations under the same terms and conditions applicable to DOE without requiring DOE to reinitiate consultations with FWS. Additionally, the legislative history of the NDAA reflects Congress' intention to permit the purchaser to step into the shoes of DOE and continue operating the property under the 1995 biological opinion without additional consultation with FWS. Moreover, to require DOE to reinitiate consultation with FWS prior to the sale would likely conflict with Congress' directive to complete the sale within two years.

Counsel for Plaintiff
Daniel J. Rohlf
Environmental Law Institute
Lewis & Clark Law School
Northwestern School of Law
10015 SW Terwilliger Blvd., Portland OR 97219
(503) 768-6600/6700

Counsel for Defendant
Greer S. Goldman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Nelson and Trott, JJ.