KRISSA CORBETT CAVOURASLIS 626: ONLINE LAW DATABASES

D. NEACSUSPRING 2010

PRATT SCHOOL OF INFORMATION AND LIBRARY SCIENCE

Pathfinder: Researching the Endangered Species Act of

1973

Research Question & Target Audience

How have the courts applied the Endangered Species Act of 1973 over the past three decades? How have the federal agencies tasked with administering

the Act done so? How has the City of New York referenced the Endangered

Species Act in its municipal administrative rulemaking?

This pathfinder is intended to serve the independent legal researcher – either in an academic or practicing context – who needs to understand the legislative, judicial, and executive applications of the ESA.

Research Plan

This pathfinder will guide the researcher through: Statutory Law – the United States Code

Searching the United States Code using finding aids Full-text Searching in the United States Code

Case Law - Federal Statutory Annotations “One good case” approach Using digests Full-text search

Administrative Law Administrative Rules & Regulations Administrative Decisions

Municipal Administrative Law – New York City

Statutory Law – the United States Code

Index: “Endangered Species Act, Generally, 16 U.S.C. § 1531 et seq”

Table of Contents: the ESA is never listed by name in the chapter titles of the U.S.C.; however, searching “endangered species” does result in results from Title 16, including 16 U.S.C. § 1531 and following.

Popular Name Table: an excellent access point for the ESA.

Full-text research: “endangered species act” is too broad an approach; focus your terms by searching in relevant Titles using segment restrictions.

Case Law – the Federal Courts

Statutory Annotation Method: Using our citation from the United States Code (16 U.S.C. § 1533), we can often retrieve cases that have interpreted or applied that statute. This method allows us to find specific elements of the

ESA – for instance, designation of critical habitat or listing of endangered species – using the headnote or core terms available in proprietary databases. Dividing the relevant decisions topically can help identify how cases have tackled different implications of the Act.

Case Law – the Federal Courts (con’t)

“One Good Case” Method: Finding one relevant or seminal case on a topic can often lead to cases in our jurisdiction, or cases more narrowly applicable to a research question. For the Endangered Species Act, we started with

Forest Guardians v. Babbitt, 174 F. 3d 1168 (10th Circ. 1999), we looked for cases in the 2nd Circuit (our jurisdiction), and we also used headnotes and core terms to locate other cases more narrowly applicable to our research question.

Case Law – the Federal Courts (con’t)

Using the Digests: In particular, Westlaw’s American Digest System is a tool to find Key Numbers relevant to one’s research question, and thus to find cases assigned that headnote by West’s editorial team. In the digest system, the researcher can restrict by jurisdiction;

we looked for cases discussing “endangered species” in the 2nd Circuit Court of Appeals. We found one headnote, for New York Coastal Partnership, Inc. v. U.S. Dept. of Interior (341 F.3d 112), in which area land owners claimed that federal and state agencies’ “failure to take remedial and protective actions to address island's shore erosion problem violated their constitutional rights and federal laws and asserting claims under, inter alia, Takings Clause, Endangered Species Act (ESA)”.

Case Law – the Federal Courts (con’t)

Full-text Research: Although previous methods discussed are preferable for navigating the massive judicial output, when full-text searching is necessary, good search construction is crucial. For our research question, we found that using term

frequencies and proximity connectors – for instance, at least ten mentions of “endangered species” within a sentence or paragraph of “critical habitat” and “designation – tamed the size of our search results to manageable pools of 40 – 60 federal cases.

When doing case law research, updating the status of a case via a citation service like KeyCite, Shepard’s, or B-Cite is the final critical step.

Administrative Law – Rules & Regulations

Code of Federal Regulations: using finding aids such as an Index or, failing that, a Table of Contents, is critical to effectively navigating the material. For our research, we investigated the rules and

regulations around “listing” species as mandated by the ESA.

We restricted our search to relevant titles – namely, Title 50: Wildlife and Fisheries.

We located 50 C.F.R. §424.11, which discusses the requirements and factors for listing, delisting, and reclassifying species as endangered or threatened.

Administrative Law – Agency Decision-Making

Agency Websites: Both the EPA and the Endangered Species Committee (a

section of the U.S. Fish and Wildlife Service) administer the Endangered Species Act, although their websites can be difficult to navigate when looking for administrative law judge decisions on ESA-related cases. The EPA website does list civil settlements, mostly between corporations and the EPA.

Proprietary Databases: Agency decisions are available through Westlaw and Lexis,

and Environmental Appeals Board is the most active in issuing decisions regarding the ESA. Example: “In Re: Desert Rock Energy Company, LLC” [2009 WL 3126170 (E.P.A.)]

Municipal Administrative Law – New York City

Public Access: Limited! New York Legal Publishers Corporation, which produces

official version of NYC municipal materials, puts a version of the Rules of the City of New York on their website: http://24.97.137.100/nyc/ but it is not complete or regularly updated.

Proprietary Access: Westlaw and Lexis both have municipal materials available. Example: NYC Administrative Code 20-699 prohibits except with

federal or state permit or license the sale, purchase, or attempts of either to buy “any product, item, or substance described in an offer for sale, labeled, or advertised as derived from any endangered or threatened species, or described in an offer for sale, labeled, or advertised as containing any substance derived from any endangered or threatened species”, etc.

Brief Results – Important Cases

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) In this seminal case, the Supreme Court held a court

of appeals' judgment, which agreed with the Secretary of Interior that opening the Tellico Dam in the Tennessee Valley would violate § 7 of the Endangered Species Act, 16 U.S.C. § 1536, which required the designation of critical habitats for species listed as endangered.

Still good law; heavily cited (over 2000 cases) and referenced in legal scholarship. Perhaps the most important result of TVA v. Hill was that Congress immediately amended the Endangered Species Act in 1978 to include a definition of critical habitat.

Brief Results – Important Cases (con’t)

Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Circ. 1999) Court of Appeals held that the Secretary was under

statutorily-imposed mandatory deadline to designate critical habitat for the silvery minnow.

Still good law; it has been negatively treated – disagreed with – by two cases, on mostly procedural grounds regarding the scope of the APA; listed as an important case distinguishing the duty for designation of critical habitat by the ALR. “Designation of Critical Habitat under Endangered Species Act”, 176 ALR Fed. 405

Brief Results – Important Cases (con’t)

Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Circ. 2001) The Court of Appeals then held that agencies could

not create regulation defining which jeopardy consultation is required, as that would conflict with the ESA, and also that the agencies' decision that it would not be prudent to designate a critical habitat for the threatened Gulf sturgeon was “arbitrary and capricious where made in reliance on an invalid regulation”.

Still good law; declared that agencies must have strong and reliable evidence when denying a critical habitat designation.