ELR Citation: ELR 20233
No(s). 08-15780 (9th Cir. Aug 25, 2010)

The Ninth Circuit held that property owners and three employees of the California Department of Fish and Game did not violate the ESA when they dug up and removed Sebastopol meadowfoam—an endangered plant species—from privately owned wetlands. Under ESA §9(a)(2)(B), it is unlawful to remove, damage, or destroy an endangered plant species in areas under federal jurisdiction. Although the site at issue is privately owned, an environmental group alleged that the plant was found in an area under federal jurisdiction because it was found in the portion of the site that was designated as adjacent wetlands under the CWA. Therefore, the group argued that the defendants violated §9 when they removed the Sebastopol meadowfoam plants. Although the term "under federal jurisdiction" is ambiguous, the FWS has not yet promulgated regulations or offered any guidance materials specifically addressing this issue. Without any agency interpretation of the "areas under federal jurisdiction," the court proceeded to interpret the term, concluding that the term does not include all of the “waters of the United States” as defined by the CWA and its regulations. While "areas under federal jurisdiction" surely includes areas under the control of the federal government, i.e. through ownership, leasehold estates, or conservation easements, it does not encompass wetlands that are adjacent to navigable waters and therefore subject to only the regulatory jurisdiction of the U.S. Army Corps of Engineers.