ESA Take Prohibition Does Not Apply to Endangered Plants On Privately-Owned Wetlands

The Ninth Circuit issued a decision (PDF) recently in which it held that the removal of an endangered plant from privately-owned waters of the United States is not a violation of the Endangered Species Act (ESA). Section 9(a)(2)(B) of the ESA makes it unlawful to remove and reduce to possession any [endangered species of plant] from areas under federal jurisdiction. The court rejected plaintiffs’ argument that the term areas under federal jurisdiction includes areas that qualify as wetlands and other waters of the United States under the Clean Water Act. The decision is important because it is the first circuit court decision to interpret the jurisdictional scope of the plant protection provisions of section 9 of the ESA.

Employees of the California Department of Fish and Game identified the endangered Sebastopol meadowfoam on private land within an area determined to be an adjacent wetland under the federal Clean Water Act. Suspecting that the plants had been unlawfully transplanted, a Fish and Game employee removed the plants to a Fish and Game evidence locker. Plaintiffs sued the Fish and Game employees and the landowner for violating the ESA. The plaintiffs argued that the term areas under federal jurisdiction in section 9(a)(2) of the ESA included areas within the regulatory jurisdiction of the U.S. Army Corps of Engineers under section 404 of the Clean Water Act. The Ninth Circuit disagreed. It concluded that the term areas under federal jurisdiction was ambiguous, and interpreted the term as not including all of the ‘waters of the United States’ as defined by the [Clean Water Act] and its regulations. The court acknowledged that the decision did not foreclose the possibility that the U.S. Fish and Wildlife Service might adopt some other statutory construction. In this case, the Service sided with the defendants and argued that ESA prohibition on removing endangered plants applies to endangered plants on federal land and on federal property interests such as conservation easements, leasehold estates, and special management areas.

Twitter Facebook LinkedIn
  • Robert D. Thornton

    Robert Thornton specializes in advising state and regional infrastructure authorities on environmental issues regarding large infrastructure projects.  He has successfully defended more than $12 billion in regional ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

Stay Connected




View All Nossaman Blogs
Jump to Page

We use cookies on this website to improve functionality, enhance performance, analyze website traffic and to enable social media features. To learn more, please see our Privacy Policy and our Terms & Conditions for additional detail.