ELR Citation: ELR 21442
No(s). s. 89-5192, -5386 (8th Cir. Aug 10, 1990)

The court holds that the Department of the Interior's regulation limiting application of the Endangered Species Act (ESA) to agency actions in the United States or upon the high seas violates the statute. The ESA's plain language and legislative history require agencies to consult with the Fish and Wildlife Service before taking actions in foreign countries that may jeopardize endangered species. The court holds that Defenders met its burden of proving standing for purposes of summary judgment by alleging specific facts. Defenders identified several foreign projects that had not been subjected to the consultation requirement and would not be in the future if the regulation remained in effect. Defenders also satisfied the standing requirement by demonstrating a procedural injury based on the Secretary's failure to follow the consultation procedures in foreign countries. Defenders offered sufficient evidence of procedural injury, established that benefits flowing from the procedures at issue are an objective of the ESA, and identified the agency action that is the source of its injury. Defenders does not need to show a geographical nexus to the project sites to establish procedural injury. The plain language and legislative history of the ESA intend to bestow procedural rights on environmental organizations. On the merits, the court holds that congressional intent as gleaned from the plain language of the statute requires extraterritorial application of the consultation requirements in the ESA because: the ESA refers to the U.S. pledge to meet international commitments and treaties; ESA defines "endangered species" without geographic limitations and requires efforts taken by any state or foreign nation to be accounted for in the listing process; the Secretary is required to give notice to foreign nations; and foreign species are included in the Act's list of endangered species. The court finds support for this conclusion in ESA's legislative history. Congress did not change the existing law applying the consultation requirements in foreign countries at the time of the 1978 amendments, even though there was testimony on the issue.

[Previous decisions in this litigation are published at 17 ELR 20882, 18 ELR 21343, and 19 ELR 20822.]

Counsel for Appellant
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
Brian B. O'Neill
Faegre & Benson
2200 Norwest Ctr., 90 S. Seventh St., Minneapolis MN 55402-3901
(612) 336-3000

Before JOHN R. GIBSON and FAGG, Circuit Judges, and BRIGHT, Senior Circuit Judge.