U.S. Water News Online
WASHINGTON -- The U.S. Supreme Court will hear arguments in an Oregon case which may determine whether people with an economic stake can use the nation's most powerful environmental law, the Endangered Species Act, to accuse the federal government of overprotection of a species.
The court has decided to review an appeals court ruling that says citizens may sue federal agencies under the act only when they want more -- not less -- protection for a species.
The court's decision could open a new avenue to loggers, developers, and others trying to limit the scope of the Endangered Species Act, said Michael Bean, a lawyer with the Environmental Defense Fund in Washington, D.C.
The case involves two ranchers in the Klamath River Basin who sued the U.S. Fish and Wildlife Service in 1992 when it curtailed their irrigation water to protect two endangered fish: the Lost River sucker and the shortnosed sucker.
The agency decided that diverting water from reservoirs in Oregon and Northern California -- both operated by the Bureau of Reclamation -- would jeopardize the two species. It ordered a reduction in the flow of water to irrigators so that Upper Klamath Lake and the Clear Lake and Gerber reservoirs would retain more water for fish.
Brad Bennett and Mario Giordano sued under a provision of the act that allows citizen suits, arguing that the protection measures for the fish were unnecessary. The ranchers' suit was filed under a provision in the act that requires regulators to consider economic impact before designating an area critical habitat for an endangered species.
But in 1993 a federal judge threw out the suit, ruling that the ranchers lacked legal standing to sue. The decision was upheld last August by the 9th U.S. Circuit Court of Appeals.
"This case requires us to determine whether plaintiffs who assert no interest in preserving endangered species may sue the government for violating the procedures established in the Endangered Species Act," the appeals court said. "We conclude that they may not."
Critics argue that the effect of this ruling is to exclude anyone with an economic interest in federal species protection regulations from suing under the Endangered Species Act.
But Environmental Defense Fund lawyer Michael Bean argues that land owners and the natural resource industries have traditionally used the Administrative Procedure Act to challenge Endangered Species Act protective actions.
"If these ranchers have an economic interest that is adversely affected," he said, "they have the more general law that clearly does authorize suits against the actions of federal agencies," Bean said.
In the Klamath case, however, the irrigator's effort to sue under the Administrative Procedure Act also failed in the courts.
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