## Facts

- Private landowners planned development of a site in Sebastopol, California that contained Sebastopol meadowfoam, an endangered plant species.
- Portions of the site had been delineated by the U.S. Army Corps of Engineers as jurisdictional wetlands subject to Clean Water Act § 404 permitting.
- After the plant’s presence became known, California Department of Fish and Game (CDFG) employees and the developer’s representative dug up and removed meadowfoam plants as part of an investigation/relocation effort.
- An environmental organization sued the landowners and CDFG employees under ESA § 9, alleging unlawful removal of an endangered plant “from areas under Federal jurisdiction.”
- The district court granted summary judgment for defendants, concluding the plaintiff failed to show the plants were located in an “area under Federal jurisdiction.”

## Issues

1. Whether the plaintiff produced sufficient evidence that the locations where the endangered plants were removed were “areas under Federal jurisdiction” for purposes of ESA § 9 and 50 C.F.R. § 17.61(c).
2. Whether Clean Water Act wetland jurisdiction, without more, establishes “Federal jurisdiction” over privately owned land for ESA endangered-plant take liability.

## Decision

- The Ninth Circuit affirmed summary judgment for defendants.
- The court held the plaintiff failed to establish that the specific places where plants were removed fell within an “area under Federal jurisdiction” as required for ESA endangered-plant removal liability.
- The court rejected treating Clean Water Act jurisdiction as automatically coextensive with the ESA’s “areas under Federal jurisdiction.”
- Even assuming a broader reading that could include some federally regulated lands, the evidentiary record did not place the plants within the federally delineated wetland boundaries.

## Legal Principles

- ESA § 9’s prohibition on removing endangered plants applies only when the plant is removed from an “area under Federal jurisdiction,” making location a required element of liability.
- Clean Water Act regulatory jurisdiction over wetlands does not, by itself, satisfy the ESA’s “areas under Federal jurisdiction” requirement.
- At summary judgment, the plaintiff must produce concrete evidence tying the challenged conduct to the statute’s jurisdictional predicate; uncertainty about the plants’ precise location relative to federal jurisdiction defeats the claim.
- Agency guidance materials cannot substitute for proof that the regulated activity occurred within the jurisdictional scope necessary for statutory liability.

## Conclusion

The Ninth Circuit held that, because the plaintiff did not prove the endangered plants were removed from an “area under Federal jurisdiction,” the removal did not violate ESA § 9’s plant protections, and summary judgment for defendants was properly affirmed.


N. Cal. River Watch v. Wilcox, 633 F.3d 766 (9th Cir. 2011)