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Monday, June 26: Court rules 5-4 for government
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Thurs., April 12: Many thanks to those who pointed out some inactive links. I'll get this whole Internets thing down eventually. -SD.
April 10 and (posted) April 11: Reply briefs
On April 2, the court rejected a motion by NAHB for divided argument in the case, electing to hear only from the Office of the Solicitor General.
The docket is here and above.
March 27: DoW/CBD and amicus briefs filed
Amici curiae
Ed. note: (Jan. 11) In the update I sent out on Monday, Jan. 8, I said two questions would be considered, but as NAHB attorney Norm James pointed out to me, the court specifically asked for briefing on all the questions presented by the petitioners -- including those in NAHB's petition -- as well as the one crafted by the court itself, which has led to speculation that one or more justices are looking for a way to avoid ruling on the ESA/CWA conflict. Here's the e-mail update that was sent to subscribers.
Jan. 10: Eric Glitzenstein of the Washington, D.C., law firm of Meyer Glitzenstein & Crystal, will argue the case for Defenders of Wildlife and Center for Biological Diversity.
Glitzenstein and other attorneys in MG&C have handled numerous ESA cases for Defenders and other environmental groups. In Arizona, he was involved in memorable legal battles over the construction of a large telescope on Mt. Graham, habitat for the endangered Mt. Graham red squirrel, and of a high school in habitat of the cactus ferruginous pygmy-owl. (In both cases, construction was delayed but went forward.) He also was involved in a Defenders/CBD challenge to the Army Corps of Engineers' failure to consider the cumulative effects on the owl of its issuance of nationwide permits. The Corps was ordered to take a comprehensive look at the effect of granting CWA Section 404 permits on the bird, which is no longer listed.
Glitzenstein won threatened protection for the Canada lynx through litigation lasting more than a decade; forced the Fish and Wildlife Service to seek public comment on and formally propose its "No Surprises" policy as a rule; and represented Save the Manatee club and other groups in litigation resulting in the designation of sanctuaries and refuges for manatees in Florida.
He is on the board of directors at Defenders and serves on the board's Litigation Committee.
James will argue for NAHB
Norman D. James of Fennemore Craig in Phoenix, who has had the case since the beginning, will be the go-to guy in the Supreme Court for National Association of Home Builders.
NAHB was joined in the petition by the Southern Arizona Home Builders Association, the Home Builders Association of Central Arizona, Arizona Chamber of Commerce, Arizona Mining Association, Arizona Association of Industries, Greater Phoenix Chamber of Commerce, and American Forest & Paper Association.
James has frequently been on the other side of the courtroom from Defenders. In this case, he sparred with DoW Legal Director Mike Senatore in the district court and the 9th Circuit Court of Appeals, and predicted the case was bound for the Supreme Court soon after the 9th Circuit issued its decision. Now, it appears, he'll get his first opportunity to appear before the First Street Nine. (The court is at One First Street NE; the nine refers to a baseball team. Oh, never mind.)
James also was the lead attorney for NAHB and state home building groups in a lawsuit to get the pygmy-owl off the list of endangered species. They succeeded when FWS removed the Arizona population from the list, concluding it was not a valid Distinct Population Segment under the ESA because it was not significant to the taxon as a whole.
Jan. 5, 2007: Court grants certiorari (PDF)
"The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument. In addition to the questions presented by the petitions, the parties are requested to brief and argue the following question:"1) Whether the court of appeals correctly held that the Environmental Protection Agency's decision to transfer pollution permitting authority to Arizona under the Clean Water Act, see 33 U.S.C. Sec. 1342(b), was arbitrary and capricious because it was based on inconsistent interpretations of Section 7(a)(2) of the Endangered Species Act of 1973, 16 U. S. C. Sec. 1536 (a)(2); and, if so, whether the court of appeals should have remanded to the Environmental Protection Agency for further proceedings without ruling on the interpretation of Section 7(a)(2)."
The question [singular--Jan. 12] presented in 06-549 (the EPA petition) is the big one: "Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. Sec. 1536(a)(2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency's discretion by other Acts of Congress."
Here's the separate questions presented document for 06-340, which asks,
"Does Section 7(a)(2) of the Endangered Species Act constitute an independent source of authority, requiring federal agencies to take affirmative action to benefit endangered species even when an agency's enabling statutes preclude such action?"There were three questions; here's the third: "3. Did the Ninth Circuit incorrectly apply the holding of Department of Transp. v. Public Citizen, 541 U.S. 752 (2004), in concluding that EPA's approval of Arizona's NPDES permitting program was the legally relevant cause of impacts to endangered species resulting from future private land use activities?"The opposition, not surprisingly, framed the case somewhat differently:
1. May the Environmental Protection Agency ("EPA") raise in this Court a rationale for avoiding compliance with Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2) ("ESA"), that EPA not only failed to rely on during the administrative proceedings and before the Ninth Circuit issued its ruling, but which the agency expressly disavowed in the administrative proceedings and advised the court of appeals panel it was not arguing?"2. Assuming that the Court considers the merits of EPA's post hoc rationalization, whether EPA must comply with Section 7(a)(2) of the ESA in taking final action on Arizona's application for Clean Water Act permitting authority, where Section 7(a)(2)'s consultation and "no jeopardy" requirements apply to "any action" by a federal agency, 16 U.S.C. § 1536(a)(2), and this Court has already construed this language as "admit[ting] of no exception," TVA v. Hill, 437 U.S. 153, 173 (1978)?"