Michael Kinsey


The purpose of this article is twofold. First, federal agencies are responsible for the development and implementation of ESA documents, and knowing what a court will look for and at when that document is challenged can help the agencies to develop a document that can better survive court review. Second, a plaintiff who challenges such a document can benefit from that same knowledge, by knowing which elements of the document to best challenge. The intent of this article is to provide practitioners, both agency and non-, with an introduction to that knowledge, to identify some of those difficulties, dangers, and distances, with the ultimate goal of adding clarity to an often confusing battlefield.

This article first provides, in Part II, an overview of how the ESA applies to federal actions, and then discusses in Part III how the Ninth, Tenth, and District of Columbia Circuit Courts of Appeal analyze, under the ESA, the decisions made by the federal agencies. The discussion includes specific analytic tests the courts have developed. Finally, in Part IV, the article describes a hypothetical decision on a large river system with multiple dams operated by Reclamation and the Army Corps as a hypothetical case study to illustrate the Courts’ tests.

Different federal circuits utilize different tests to determine whether or not the decisions made under the ESA satisfy the statute and court precedent. The intent of this article is to illustrate the particular criteria some of the courts use in those tests, and thus to provide information for federal agencies and litigants to use in crafting their documents and, if necessary, their arguments.