Southern Appalachian Biodiversity Project v. Fish and Wildlife
Service: In Tennessee Critical Habitat Suit, Failure to Designate Critical
Habitat for Endangered Species is a "Continuing Violation" of the
Endangered Species Act
Marty Bergoffen, Esq.
Southern Appalachian Biodiversity Project, P.O. Box 3141, Asheville NC 28802;
(828) 258-2667
marty@sabp.net, www.sabp.net
Joe McCaleb, Esq.
(615) 826-7245; jeremyah@bellsouth.net
Abstract
On Nov. 8, 2001, U.S. Magistrate Judge Dennis Inman (Eastern District, Tennessee)
ordered the U.S. Fish and Wildlife Service to propose critical habitat for
16 Tennessee species. The case is significant because for the first time a
court has found that the Service has an ongoing duty to designate critical
habitat that is not subject to the six-year statute of limitations found at
28 USC 2401. Thus, the U.S. Fish and Wildlife Service cannot hide behind repeated
or archaic "indeterminable" findings to avoid their duties to protect
the habitat of threatened and endangered species.