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Defenders of Wildlife v. Administrator

Citation: 19 ELR 21440
No. Nos. 88-5242, -5243, 882 F.2d 1294/30 ERC 1460/(8th Cir., 08/16/1989) Aff'd in part, rev'd in part

The court holds that the Environmental Protection Agency's (EPA's) registration of strychnine for above-ground use as a rodenticide, in force during the administrative review process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), resulted in unauthorized takings of protected species under the Endangered Species Act (ESA). The court first holds that the ESA's citizen suit provision permits plaintiffs to sue EPA to enjoin violations of the ESA. The court then holds that EPA's continued registration of strychnine resulted in illegal takings of endangered species. The ESA prohibits the taking of any protected species unless the taking occurs after obtaining an incidental taking statement from the Secretary of the Interior. EPA failed to obtain incidental takings statements until 1988, pending the outcome of the administrative review process for strychnine registration, but endangered species deaths occurred before that time as a result of direct or indirect ingestion of strychnine bait. The 1988 incidental takings statement cannot retroactively excuse the takings that had already occurred. The ESA imposes substantial and continuing obligations on federal agencies to conserve endangered and threatened species, and, although FIFRA provides the exclusive means for cancelling a registration, FIFRA does not exempt the EPA from complying with ESA requirements when EPA registers pesticides. When plaintiffs sue to enforce the ESA, any subsequent cancellations are an indirect effect of forcing EPA to comply with the ESA. The court observes that its decision does not foreclose EPA from asking the district court to rescind the ESA injunction if EPA can show that it has now properly obtained authorization for the incidental takings. Additionally, the court holds that the district court lackedjurisdiction to hear plaintiffs' claims under the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, and the Administrative Procedure Act.

[Previous decisions in this case are published at 18 ELR 20960 and 19 ELR 20611.]

Counsel for Appellants
Geoffrey Jarpe
Maun, Green, Hayes, Simon, Johanneson & Brehl
2300 World Trade Center, St. Paul MN 55101
(612) 229-2900

Kathleen Dewey
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-4519

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

Before HEANEY,* FAGG, and WOLLMAN, Circuit Judges.