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,
Joe McCaleb, Esq.
(615) 826-7245;

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.