Research

Read your memorandum task assignment (TASK MEMORANDUM II) carefully and use it to
answer the following questions.

Research Issues: What are the two main research issues for this memorandum assignment?
Issue 1
The issue is whether AAA can be a plaintiff in litigation against Good Harbor Catch
Company in a citizen suit according to the language of the statute, and if so, are there any
administrative procedures to exhaust before proceeding with a claim.

Issue 2
The issue is whether If AAA’s reports about Good Harbor Catch Company’s fishing
practices are true, then can we claim GHCC has caused a “taking” of an Endangered Species
under the special meaning of that term under the Endangered Species Act.

Search terms: what are some keywords and phrases associated with each research issue that you
think will be helpful in finding the sources of law to answer those problems?
Issue 1
Citizen suit requirements
Endangered Species Act
Citizen suit samples
Example of citizen suits under the endangered species At

Issue 2
What amounts to taking under the ESA
What is to take in the context of the ESA
What sections of the Act provide for taking

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Westlaw Database
Issue 1 Research Steps.
 Create a folder for your research.
 Start your search by looking for secondary sources.
o You have a choice of federal materials, state materials, practice areas or tools.
Which would be the best place to start to find information on the application and
interpretation of the federal Endangered Species Act?

Federal materials
o Select the appropriate database (your choice above). What keywords will you
enter to try to find the most precise secondary source for your first research issue?
Write them here:

 State materials on the Endangered Species Act
 Federal research on the Endangered species Act
 Case law on citizen lawsuits under the Endangered Species Act
 Endangered Species Act
 Citizen suit requirements
 Secondary legal sources for the Endangered Species Act

o Did you find any helpful secondary sources on the topic? Write the name of it
here, and save it to your research folder:
Citizen-Suit Claims Under § 11(g)(1) of the Endangered Species Act
Construction and Application of Prohibited Acts Under Sec. 9(a) of the
Endangered Species Act of 1973, 16 U.S.C.A. § 1538(a)
Designation of "Critical Habitat" Under Endangered Species Act.
Construction and Application of Citizen Suit Requirements and Notice Provisions
of Sec. 11 of the Endangered Species Act of 1973, 16 U.S.C.A. §§ 1540(g)(1),
1540(g)(2).
Construction and Application of Threatened Species Requirements under Sec.
4(a) and (b) of the Endangered Species Act of 1973, 16 U.S.C.A. § 1533(a) and

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(b)
Construction and Application of Prohibited Acts Under Sec. 9(a) of the
Endangered Species Act of 1973, 16 U.S.C.A. § 1538(a).
Attorney's Fees Under § 11(g)(4) of Endangered Species Act (16 U.S.C.A. §
1540(g)(4))
Citizen suits and sustainability
Citizen Suits under the Endangered Species Act: The United States Supreme
Court Expands the Zone of Interests Test. Bennett v. Spear

o Skim the secondary source(s) you found. Does it summarize an answer to your
issue? Paraphrase what it says here:

The articles discuss the standing of citizens in bringing suits and enforcement of
laws. They contain cases and well the reason why judges justify citizen lawsuits.
The articles interpret the wording of the Act and specific sections that provide for
citizen participation.

o Does the secondary source reference any statutes, regulations or case law to
support its summary of the answer? List those here. You will want to read them
later:
Statutes and Regulations
 The United States Constitution
 The Endangered Species Act
 National Environmental Policy Act
 Rio Declaration on Environment and Development
Case Law
Hallstrom v. Tillamook County, 493 U.S. 20 (1989)
Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9 th Cir. 1998).
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000).
Sierra Club v. Morton, 405 U.S. at 734
Bennett v. Spear, 520 U.S. 154, 160-61 (1997)
Mt. Graham Red Squirrel v. Espy 986 F.2d 1568 (9' Cir. 1993)

 Statutes
o Find the section of the federal Endangered Species Act that relates to your first
issue. Write the appropriate citation here, and summarize what this section says
in relation to your problem:
Citation: ESA section 11(g)(1)
Summary: A private person is given legal standing to sue.
Citation: ESA section 11(g)(2)
Summary: Requirements for commencement of a suit; a suit shall not be
commenced until a 60 days’ notice is given to the violator or the alleged violation
and to the interior secretary or commerce.
Citation: ESA section 11(g)(1) and (5)
Summary: The availability of injunctive relief

 Cases:
o First, look up any cases listed in your secondary source. Do they help answer
your problem? If so, write the citation of the case, and some notes about what the
case says that is helpful. Start with Supreme Court cases and then go to circuit
court cases, starting with any second circuit cases. Save any helpful cases to your
research folder:

504 U.S. 555, 560-61 (1992)
Summary: The plaintiff should be able to prove causation, redress, and injury in
fact to commence a suit.

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405 U.S. at 734
Summary: The courts recognized a broad range of injuries to plaintiffs which
should not be limited to economic injury. “Aesthetic and environmental well-
being, like economic well-being, are important ingredients of the quality of life
in our society,”
520 U.S. 154, 160-61 (1997)
Summary: the court held in favor of the plaintiffs who were challenging a
biological opinion issued by the U.S Fish and wildlife service under the Act.
The Court also held that the plaintiffs fall 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.
986 F.2d 1568 (9' Cir. 1993)
Summary: 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.

o Now, look at the notes of decisions to the statute provision you found. What
categories of notes of decisions look attractive to you, to find an answer to
research question 1?

The notes touching on citizen suits
o Skim the case “squibs” you find in those categories. Which cases do you think
will be helpful? Write their names and citations here, and save them to your
research folder for careful reading later:

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
Sierra Club v. Morton, 405 U.S. at 734

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Bennett v. Spear, 520 U.S. 154, 160-61 (1997)
Mt. Graham Red Squirrel v. Espy 986 F.2d 1568 (9' Cir. 1993)

 Regulations
o Did your secondary source or your review of the statute or cases lead you to any
federal regulations? Write the citation of the regulation here, and summarize
what it says in relation to your problem:

Citation: United States Constitution Article III

Summary: Article III requires a plaintiff to show that (1)he or she has suffered an
"injury in fact;" (2) "a causal connection[exists] between the injury and conduct,"
in other words, the injury must be "fairly traceable" to the acts of the defendant;
and (3) the injury will likely be "redressed by favorable decision.
Citation: 16 U.S.C. §1540(g)(1)
Summary: Gives a private citizen the right to sue.

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Issue 2 Research Steps.
 Start your search by looking for secondary sources.
o You have a choice of federal materials, state materials, practice areas or tools.
Which would be the best place to start to find information on the application and
interpretation of the federal Endangered Species Act for issue 2?

secondary sources that will give information on the relevant primary sources
o Select the appropriate database (your choice above). What keywords will you
enter to try to find the most precise secondary source for your second research
issue? Write them here:
The meaning Taking as defined under the Endangered Species Act.
Taking under the Endangered Species Act

o Did you find any helpful secondary sources on the topic? Write the name of it
here, and save it to your research folder:

Incidental take permit.
Take It Back: Extending the Endangered Species Act’s “Take” Prohibition to All
Threatened Animals Is Bad for Conservation.
Takings of Wildlife under the Endangered Species Act After Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon.

o Skim the secondary source(s) you found. Does it summarize an answer to your
issue? Paraphrase what it says here:

ESA prohibits taking of endangered species, and the word take defines a broad set
of actions, harming, harassing, causing injury among other definitions. Under the
definition of take, harm is part of it. And under the Act harm means any activity
that kills or injures wildlife, including habitat modification or degradation.

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o Does the secondary source reference any statutes, regulations or case law to
support its summary of the answer? List those here. You will want to read them
later:

Endangered Species Act
Fish and Wildlife Service Regulation
50 C.F.R. § 17.3 (1995)
Palila v. Hawaii Dept. of Land & Natural Resources (Palila II), 649 F. Supp.
1070, 1077 (D. Haw. 1986)
Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995)

 Statutes
o Find the section of the federal Endangered Species Act that relates to your first
issue. Write the appropriate citation here, and summarize what this section says
in relation to your problem:
Citation: Section 3(19)
Summary: The term “take” means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such conduct.
Citation: 16 U.S.C. § 1538(a)(1)(B). Section 9(a)(1)(B) of the ESA
Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to
any endangered species of fish or wildlife listed pursuant to section 1533 of this
title, it is unlawful for any person subject to the jurisdiction of the United States
to-(B) take any such species within the United States or the territorial sea of the
United States.

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 Cases:
o First, look up any cases listed in your secondary source. Do they help answer
your problem? If so, write the citation of the case, and some notes about what the
case says that is helpful. Start with Supreme Court cases and then list circuit court
cases, starting with any second circuit cases. Save any helpful cases to your
research folder:

649 F. Supp. 1070, 1077 (D. Haw. 1986)
Summary- The decrease of endangered species does not have to come near
extinction for the provisions on taking to take effect.
65 F.3d 1502, 1512 (9th Cir. 1995)
Summary: Focuses on taking activities that cause harm indirectly

o Now, look at the notes of decisions to the statute provision(s) you found. For
each part of the statute that relates to issue 2, what categories of notes of decisions
look attractive to you, to find an answer to research question 2?

The secondary sources section
o Skim the case “squibs” you find in those categories. Which cases do you think
will be helpful? Write their names and citations here, and save them to your
research folder for careful reading later:

Palila v. Hawaii Dept. of Land & Natural Resources (Palila II), 649 F. Supp.
1070, 1077 (D. Haw. 1986)
Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995)

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 Regulations
o Did your secondary source or your review of the statute or cases lead you to any
federal regulations? Write the citation of the regulation here, and summarize
what it says in relation to your problem:
o

Citation: Fish and wildlife service regulation
Summary:
Comprehensively provides for the protection and refers to the Endangered species
Act as a tool and for enforcement. The regulation compliments the statute.