Memorandum

TO:
FROM:
DATE:
RE:

FACTS

Our client Astorian Animals Advocates (AAA)an environment watchdog group instructed us to
research on their legal position in bringing an action against Good Harbor Catch Company
(GHCC). Field research carried out by AAA showed that GHCCOs activities cause harm to a
local endangered species, the Astorian Plover. The Plover was listed as an endangered species
since 2011.Plovers will not nest in a noisy environment or if there is a disturbance to its habitat.

The Plover feeds on small animals found at the shore, their staple diet is the Astorian shore crab.
The GHCC methods of fishing affect the habitat of the Plover and its staple food, the shore crab.
The sound produced by the motors are noisy, and the nets that are used pollute the water. The
study carried out showed a decline in the number of Plovers by half attributed to GHCs fishing
methods. Our client wants to find out their legal standing against GHCC, and whether GHCCs
activity amount to taking under the Endangered Species Act.
QUESTION
What is the Endangered Species Act position on Citizen suits and activities amounting to taking
by an alleged violator.

2

ISSUES

1. Whether AAA, a non-profit organization, can bring a citizen suit for injunction against
GHCC under the ESA, and if so, whether there are any administrative procedures AAA
must follow before filing a claim.
2. Whether GHCC has caused a taking of an endangered species under the special meaning
of the Endangered Species Act, federal regulations & interpretive case law.

Short Answers

A non-profit organization is classified in the category of citizen suits, the Act has a
provision for citizen suits. From relevant case law it can be ascertained that citizens under ESA
can be plaintiffs in a suit. The Act will guide on any administrative procedures that AAA ought
to satisfy.
To determine whether GHCCs activities amount to taking we must first look at the
meaning prescribed under the Act of what taking. From case law and statutory interpretations,
the activities of GHCC amount to taking.

DISCUSSION

AAAs legal position and requirements in bringing a suit against GHCC
Any person can commence a civil suit to enjoin any person who violates any prohibition
of the Endangered Species Act. 16 U.S.C.A. § 1540(g)(1)(A). Under the statute, the term
“person” means individuals, business entities, associations, or any other private entity. 16
U.S.C.A. §1532. Under this provision, private entities can suit to enforce provisions of the E—S-
–A. In Bennet v. Spear, 520 U.S. 154,164 (1997) The Court also held that the plaintiffs fall

3
within the “zone of interests” sought to be protected by the statute “notwithstanding that the
interests they seek to vindicate are economic rather than environmental.”. The citizen suit
provision of the Endangered Species Act allows “any person” to file such a lawsuit, the Court
reasoned, and thus it does not apply only to persons with claims supporting environmental
protection.
A written notice is required 60 days before an organization can bring a citizen suit under
1540(g)(1)(A). 16 U.S.C. §1540(g)(2). In this case of Hallstrom v. Tillamook County, 493 U.S.
20(1989) the courts emphasized on the importance of abiding by the conditions set out in the
statute.
AAAs requirements in seeking injunctive relief
Injunctive relief is provided for under Section 11(g)(1) and (5).
In the case of Mt. Graham Red Squirrel v. Espy 986 F.2d 1568 (9' Cir. 1993) The Plaintiffs
sought an injunction to stop construction of an observatory, fearing the habitat of the red squirrel
may be endangered. The court reversed the findings of the lower courts and held that the
Plaintiffs had to stand under Arizona law. This is because the interest was for the preservation of
an endangered species.
The traditional standard for injunctive relief requires AAA to show irreparable harm is likely to
be suffered if the order is not given against GHCC, that they will succeed on merit of the case,
Earth Island Inst. v. Carlton, 2010 WL 4399138 (9th Cir. Nov. 8, 2010) and that public interest
favors an injunction. However, in environmental cases not all factors need to be present as seen
in the case of Tennessee Valley Authority (TVA) v. Hill 437 U.S. 153, 171, 195. 8 ELR 20513
(1978).

4

Analysis
AAA has legal standing to institute a suit against GHCC provided they adhere to the
conditions stipulated in the statute. The notice of intention to sue, with the alleged violation
should be served to the violator and the secretary of interior or commerce. For the injunctive
relief the claim presented needs to adhere to the conditions set out for seeking injunctions.
AAA needs to show that Astorian citizens will suffer if the order is not given, they are
likely to succeed on the merits, the balance of harm weighs in their favor and that public interest
favors the injunction. The suit against GHCC is therefore likely to succeed.
Whether GHCCs activities amount to taking
Take is defined in Section 3 (16 U.S.C. § 1532) as;
“Take” is broadly defined to include any actions that harm the species, including “habitat
modification or degradation where it actually kills or injures wildlife by significantly impairing
essential behavior patterns, including breeding, feeding, or sheltering” (50 CFR § 17.3).”
In the case of U.S.A., Inc. v. Natural Resources Defense Council, Inc.3 467 U.S. 837
(1984). The court held that take could also mean the modification of a habitat. Therefore GHCCs
activities amount to taking.
Analysis
From the Acts definition and decided cases, the fishing methods of GHCC are taking. This is
because the noise produced by the mortars and the nests stirring up dirt disturb the habitat.

CONCLUSION

5
From analyzing statutes and case law, AAA can be a plaintiff under the definition of the
Act and GHCCs activities amount to taking. AAA needs to fulfill the conditions set forth in the
Act to institute a suit and prove the elements of injunction for the court to issues an order.