National Waterways Conference

1. “When and How to Make a Stand on the Endangered Species Act” By Rob Fowler Balch & Bingham LLP (205)226-8733 rfowler@balch.com Houston, Texas September 26, 2003 National Waterways Conference

2. The Endangered Species Act Is Not A Barrel Of Fun

3. Why Do People Go To War?(From the movie Wag the Dog) Mr. Brean: Why do people go to war? Mr. Young: Why do people go to war? Okay, I’ll play your silly game. Mr Brean: Why do people go to war? Mr. Young: To preserve their Way of Life.

4. Prepare to Make a Stand • Participate, Participate, Participate • Know who you are fighting • Have a reason to fight • Choose the proper battlefield location • Pick your battles

5. Preparation “With many calculations, one can win [a war]; with few one cannot. How much less chance of victory has one who makes none at all.” Sun Tzu ‘Art of War’

6. Know Who You Are Fighting In most instances, administrative appeals and lawsuits brought by environmentalists under the ESA are not filed directly with or against the members of the particular industry they have chosen to attack. Rather, they are lodged against FWS. This strategy is important for many reasons:

7. Strategy of the Enemy • Immediately places industry in a weakened position • Provides environmentalists with a friendly opponent—the FWS • Allows FWS to be a “neutral arbitrator” • Allows Environmentalists to choose their battlefields

8. A Reason to Fight = Standing • Bennet v. Spear: Economic interests equals standing under ESA

9. Bennet v. Spear Expanded • Alabama-Tombigbee Rivers Coalition: “. . . the Coalition’s injuries are produced by the coercive effect of the ESA as implemented by the FWS or NMFS: federal agencies and Coalition members must at least consider whether consultation is necessary for their activities….The ESA establishes a framework that is coercive rather than voluntary.”

10. Choose the Battlefield The three most important words in real estate are location, location, and location. The same holds true for environmental litigation.

11. Pick Your Battles “Pick battles big enough to matter, small enough to win.” Jonathan Kozol 1981

12. Pick Your Battles • Prelisting (FACA, FOIA, Comments, etc.) • The Listing (Best available science, critical habitat, listing criteria, constitutional challenges; NEPA) • Critical Habitat • Biological Opinions • Takings • Delisting • Legislation

13. Best Available Science “No science is immune to the infection of politics and the corruption of power.” Jacob Bronowski “As soon as questions of will or decision or reason or choice of action arise, human science is at a loss.” Noam Chomsky

14. Best Available Science An 8th grade boy was doing some research for his career report at school. He asked his dad, “Father, how many wildlife biologists work for the federal government?” The honest father replies, “Oh, I would say at around half of ‘em”

15. Alabama-Tombigbee Rivers Coalition v. U.S. Dept. of Interior • Standing to challenge listing based on consultation requirement • Consultation = economic injury • 11th Circuit: “It is conceivable that [FWS’] action [listing the Alabama sturgeon] could have local economic impacts without affecting interstate commerce.”

16. The End