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National Waterways ConferenceNational Waterways Conference

““When and How to Make a Stand on the When and How to Make a Stand on the Endangered Species ActEndangered Species Act””

ByBy

Rob FowlerRob Fowler

Balch & Bingham LLPBalch & Bingham LLP

(205)226-8733(205)226-8733

rfowler@balch.comrfowler@balch.com

Houston, TexasHouston, Texas

September 26, 2003September 26, 2003

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The Endangered Species Act Is Not The Endangered Species Act Is Not A Barrel Of FunA Barrel Of Fun

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Why Do People Go To War?Why Do People Go To War?(From the movie Wag the Dog)(From the movie Wag the Dog)

Mr. Brean:Mr. Brean: Why do people go to war?Why do people go to war?

Mr.Mr. Young:Young: Why do people go to war? Why do people go to war? Okay, I’ll play your silly game.Okay, I’ll play your silly game.

Mr Brean:Mr Brean: Why do people go to war?Why do people go to war?

Mr. Young: Mr. Young: To preserve their To preserve their Way of LifeWay of Life..

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Prepare to Make a StandPrepare to Make a Stand

1.1. Participate, Participate, ParticipateParticipate, Participate, Participate

2.2. Know who you are fightingKnow who you are fighting

3.3. Have a reason to fightHave a reason to fight

4.4. Choose the proper battlefield locationChoose the proper battlefield location

5.5. Pick your battlesPick your battles

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““With many calculations, one can With many calculations, one can win [a war]; with few one cannot. win [a war]; with few one cannot. How much less chance of victory How much less chance of victory has one who makes none at all.”has one who makes none at all.”

Sun TzuSun Tzu

‘‘Art of War’Art of War’

Preparation

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Know Who You Are FightingKnow Who You Are Fighting

In most instances, administrative In most instances, administrative appeals and lawsuits brought by appeals and lawsuits brought by environmentalists under the ESA are environmentalists under the ESA are not filed directly with or against the not filed directly with or against the members of the particular industry they members of the particular industry they have chosen to attack. Rather, they have chosen to attack. Rather, they are lodged against FWS. This strategy are lodged against FWS. This strategy is important for many reasons:is important for many reasons:

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Strategy of the EnemyStrategy of the Enemy

Immediately places industry in a weakened Immediately places industry in a weakened positionposition

Provides environmentalists with a friendly Provides environmentalists with a friendly opponent—the FWSopponent—the FWS

Allows FWS to be a “neutral arbitrator”Allows FWS to be a “neutral arbitrator” Allows Environmentalists to choose their Allows Environmentalists to choose their

battlefieldsbattlefields

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A Reason to Fight = StandingA Reason to Fight = Standing

Bennet v. SpearBennet v. Spear: Economic interests : Economic interests equals standing under ESAequals standing under ESA

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Bennet v. SpearBennet v. Spear Expanded Expanded

Alabama-Tombigbee Rivers CoalitionAlabama-Tombigbee Rivers Coalition: “. . . : “. . . the Coalition’s injuries are produced by the the Coalition’s injuries are produced by the coercive effect of the ESA as implemented coercive effect of the ESA as implemented by the FWS or NMFS: federal agencies by the FWS or NMFS: federal agencies andand Coalition members must at least consider Coalition members must at least consider whether consultation is necessary for their whether consultation is necessary for their activities….The ESA establishes a activities….The ESA establishes a framework that is coercive rather than framework that is coercive rather than voluntary.”voluntary.”

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Choose the BattlefieldChoose the Battlefield

The three most important words in The three most important words in real estate are location, location, real estate are location, location, and location. The same holds true and location. The same holds true for environmental litigation.for environmental litigation.

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Pick Your BattlesPick Your Battles

““Pick battles big enough to matter, Pick battles big enough to matter, small enough to win.”small enough to win.”

Jonathan KozolJonathan Kozol19811981

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Pick Your BattlesPick Your Battles

Prelisting (FACA, FOIA, Comments, etc.)Prelisting (FACA, FOIA, Comments, etc.) The Listing (Best available science, critical habitat, The Listing (Best available science, critical habitat,

listing criteria, constitutional challenges; NEPA)listing criteria, constitutional challenges; NEPA) Critical HabitatCritical Habitat Biological OpinionsBiological Opinions TakingsTakings DelistingDelisting LegislationLegislation

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Best Available ScienceBest Available Science

““No science is immune to the infection of politics and No science is immune to the infection of politics and the corruption of power.”the corruption of power.”

Jacob BronowskiJacob Bronowski

““As soon as questions of will or decision or reason or As soon as questions of will or decision or reason or choice of action arise, human science is at a loss.”choice of action arise, human science is at a loss.”

Noam ChomskyNoam Chomsky

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Best Available ScienceBest Available Science

An 8An 8thth grade boy was doing some research grade boy was doing some research for his career report at school. He asked his for his career report at school. He asked his dad, “Father, how many wildlife biologists dad, “Father, how many wildlife biologists work for the federal government?”work for the federal government?”

The honest father replies, “Oh, I would say The honest father replies, “Oh, I would say at around half of ‘em”at around half of ‘em”

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Alabama-Tombigbee Rivers Alabama-Tombigbee Rivers Coalition v. U.S. Dept. of InteriorCoalition v. U.S. Dept. of Interior

Standing to challenge listing based on consultation requirement

Consultation = economic injury

11th Circuit: “It is conceivable that [FWS’] action [listing the Alabama sturgeon] could have local economic impacts without affecting interstate commerce.”

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The EndThe End