The Endangered Species Act Memo

This memo concerns the effect of the Endangered Species Act upon John Winesap's use of his property. Specifically, the memo will discuss whether Mr. Winesap may be forced to suspend the use of his property for the cultivation of apple orchids because of the existence of Least Bell Vireos on his property.

John Winesap has owned a piece of property since 1984, throughout which time he operated a small apple orchard on the property. This property is located next to the banks of the Santa Clara River, whose creek beds are home to the Least Bell Vireo bird. The Least Bell Vireo has been on the federal endangered species list since 1986. This bird builds its nests from plants located on and near Mr. Winesap's property. However, it has been discovered that the apple orchard activities are softening this plant, adversely affecting the ability of the bird to build its nests. As a result, the Department of the Interior has notified Mr. Winesap that his apple orchard activities are threatening the habitat of the bird.

Upon consulting with a biologist, Winesap discovered several things. First, there are at least five pairs of the bird living on his property, nesting in trees along the bank of the river. Second, there is no evidence of any dead birds on his property and all five pairs found appeared to be healthy. Third, since the bird was placed on the endangered species list in 1986, its population

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definition given by the Regulations. 115 S. Ct. at 2412-13. The Court also rejected the plaintiff's argument that "harm" should only include direct applications of force against protected species. The Court pointed out that the dictionary definition of "harm" does not preclude indirect actions. The Court added that "harm" would have no meaning that would not duplicate the meaning of the other words in the definition of "take" if it did not include indirect injuries. 115 S. Ct. at 2413. In Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996), a logging company argued that the Supreme Court's decision in Sweet Home overruled the holding in Rosboro, because the Court in that case noted that the Regulations had been amended in 1981 to require actual death or injury for injunctive relief. However, the Ninth Circuit said that the Supreme Court had noted this in order to prevent a reading whereby an injunction could issue simply because habitat modification had occurred, without any showing of harm emanating from such modification. 83 F.3d at 1065. In Marbled Murrelet, an action was brought against a lumber company on behalf of an endangered bird because the company planned to harvest trees from part of the bird's habitat.
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Some common words found in the essay are:
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Approximate Word count = 1972
Approximate Pages = 8 (250 words per page)

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