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Pacific Legal Found. v. Andrus

ELR Citation: 11 ELR 20871
Nos. No. 79-1451, 657 F.2d 829/16 ERC 1397/(6th Cir., 08/19/1981) Aff'd

The Sixth Circuit Court of Appeals affirms the district court's ruling, 9 ELR 20413, that the National Environmental Policy Act (NEPA) did not require the United States Fish and Wildlife Service (FWS) to prepare an environmental impact statement (EIS) before listing seven species of mollusks as endangered pursuant to the Endangered Species Act (ESA). Appellants initiated suit after construction on the Columbia Dam project on the Duck River in Tennessee was halted in response to the FWS' biological opinion stating that completion of the project would jeopardize the existence of two of the mussel species. Initially, the court finds that neither the time constraint nor the functional equivalent exception to NEPA's requirement of an EIS are applicable. Next the court rules that a statutory conflict exists between NEPA and the ESA and that an EIS is not required when a species is listed as endangered or threatened. The filing of an EIS cannot serve the purposes of the ESA as the Secretary of the Interior, when listing species as endangered or threatened, is without discretion to consider the factors required to be considered when filing an EIS and thus the primary purpose of an EIS, insuring that agencies consider environmental impacts, would not be served in such cases. Moreover, the Secretary of the Interior's action in listing a species as endangered or threatened works to preserve the environment and prevent the irretrievable loss of a natural resource, thereby furthering the purposes of NEPA even though no EIS is filed. In addition, the legislative history of both statutes indicates that Congress did not intend to require the Secretary of the Interior to file an EIS before listing a species as endangered or threatened under the ESA.

Counsel for Appellants
Raymond Momboisse
Pacific Legal Foundation
1990 M St. NW, Washington DC 20036
(202) 466-2686

Counsel for Appellees
Nancy Firestone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Before: EDWARDS, Chief Judge; KENNEDY, Circuit Judge; and NEWBLATT, District Judge.*