ELR Citation: ELR 20379
No(s). 92-0216-B-S (S.D. Ala. Sep 28, 1992)

The court holds that the development of private property near a beach designated under the Endangered Species Act (ESA) as critical habitat for the Perdido Key beach mouse does not jeopardize the existence of the mouse. The court holds that a scientist has standing under the citizen suit provision of the ESA to challenge the development, because injury to the beach mouse would harm the scientist's research. The court holds that the development project does not constitute a "taking" of an endangered species in violation of §9 of the ESA for three reasons: no conclusive evidence exists that the beach mouse ever lived on the private property; no substantial evidence exists that destruction of the private property habitat could threaten the beach mouse; and there is little evidence that the project would cause heightened pressure due to house mice, cats, and human traffic. The court denies the scientist's request that the Secretary of the Interior (Secretary) be enjoined to designate as critical habitat those areas north of existing critical habitat area, including the private property. The court holds that the scientist does not have standing under the ESA to challenge the Secretary's actions, because the Secretary has discretion to revise the designation of critical habitat, and to modify the content of a recovery plan.

Counsel for Plaintiff
Henry H. Caddell
Thiry & Caddell
1911 Government St., Mobile AL 36606
(205) 478-8880

Counsel for Defendants
Richard A. Horder
Kilpatrick & Cody
1100 Peachtree St., Ste. 2800, Atlanta GA 30309
(404) 815-6500

Charles Brooks
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000