The Environmental Law Moot Court Competition – 2021- Research session

Let’s start with a Hypothetical – 

Facts:

The New Union Oystercatchers, Inc., (NUO) takes issue with the district court’s determination that the City of Greenlawn has riparian landowner rights to the Green River Bypass Reach.

NUO further appeals the district court’s holding that the United States Army Corps of Engineers (ACOE) did not violate the consultation requirement under § 7(a) of the Endangered Species Act, 16 U.S.C. § 1536(a), when ACOE continued Howard Runnet Dam Works operations during drought conditions to provide flow to the City of Greenlawn.

The City of Greenlawn (Greenlawn) takes issue with the district court’s determination that Greenlawn’s withdrawals from the reduced-flow of the Bypass Reach constitutes a “take” of the endangered oval pigtoe mussel, and that Greenlawn’s actions violated § 9 of the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B).

Greenlawn also appeals the district court’s determination that when enjoining a municipal activity to prevent the extirpation of an endangered species, a court need not balance the equities of the municipal activity against the threat to the species.

The court has determined that jurisdiction properly lies in this court. The parties have not disputed standing under Article III of the U.S. Constitution, and no party raises the issue of standing on appeal. All issues raised in the petitions were properly preserved for appeal.

I. Questions presented:

1. ISSUE 1: Whether Greenlawn has the right, as a riparian landowner, to continue water withdrawals for municipal purposes during a drought without any water conservation measures? (NUO argues it does not; ACOE argues it does; and Greenlawn argues it does.
2. ISSUE 2: Whether the operation of Howard Runnet Dam Works during drought conditions to provide flow to Greenlawn is a discretionary action subject to the consultation requirement within § 7 of the Endangered Species Act, 16 U.S.C. § 1536? (NUO argues it is; ACOE argues it is not; and Greenlawn argues it is not.)
3. Issue 3: Whether Greenlawn’s withdrawal of nearly all of the drought-reduced flow from the Howard Runnet Dam Works constitutes a “take” of the endangered oval pigtoe mussel in violation of § 9 of the Endangered Species Act, 16 U.S.C. § 1538? (NUO argues it does; ACOE argues it does; and Greenlawn argues it does not.)
4. Issue 4: 4. Whether the District Court must balance the equities before enjoining a beneficial municipal activity, when the activity will cause the extirpation of an entire population of an
   endangered species? (NUO argues it does not; ACOE argues it must; and Greenlawn argues it must.)

Research Plan (reverse engineering)

1. Start with the end result: what do you want to find? Cases supporting a positive answer to all three questions

Then, think about the path to take:

Identify secondary sources to explain the law

1. Use CLIO; Pegasus (we are acquiring electronic resources) Westlaw and Lexis for treatises
2. Use CLIO/ Westlaw and Lexis for journal articles (refine your research :
3. Use Bloomberglaw for Dockets

Use the databases to locate the law

• Use Westlaw/Lexis for case law research;
  • Start with the statutory provision and the regulations
    • Where are regulations published?
    • Where would a final decision  would be published?
  • Use the notes of decisions/citing references
    • The Digest/Topics (controlled searches)
  • “one good case” approach

and

• Full-text searches (keywords // terms and connectors)

Execute the plan, and keep a log for your research memo – to support your argument – pay attention to the citator signals (KeyCite/Shepard’s).

Let’s work on this together!

Going back to our Hypothetical:

Issue 1: Whether Greenlawn’s withdrawals from the reduced-flow of the Bypass Reach constitutes a “take” of the endangered oval pigtoe mussel,

A. PLAN or Macro-management of your research
-What database do I use?
-What are the research terms?
-Where do you start?
Secondary Sources – Westlaw: One source; and a second source

B. RESEARCH – a circular process of back and forth – micromanagement
Cases found in secondary sources
KeyCite/BCite/Shepardize
Keynumbers (headnotes)
Full text searches in the Federal Cases library

Issue 2: Whether the operation of Howard Runnet Dam Works during drought conditions to provide flow to Greenlawn is a discretionary action subject to the consultation requirement within § 7 of the Endangered Species Act, 16 U.S.C. § 1536?

A. PLAN or Macro-management of your research
-What database do I use?
-What are the research terms?
-Where do you start?
Secondary Sources – Westlaw:

B. RESEARCH – a circular process of back and forth – micromanagement

• Cases found in secondary sources
• Digest searches
• KeyCite/BCite/Shepardize
• Keynumbers (headnotes)
• Full text searches in the Federal Cases library

Issue 3: Whether Greenlawn’s withdrawal of nearly all of the drought-reduced flow from the Howard Runnet Dam Works constitutes a “take” of the endangered oval pigtoe mussel in violation of § 9 of the Endangered Species Act, 16 U.S.C. § 1538?

A. PLAN or Macro-management of your research
-What database do I use?
-What are the research terms?
-Where do you start?
Secondary Sources – Westlaw:

B. RESEARCH – a circular process of back and forth – micromanagement

• Cases found in secondary sources
• Digest searches
• KeyCite/BCite/Shepardize
• Keynumbers (headnotes)
• Full text searches in the Federal Cases library

Issue 4:  Whether the District Court must balance the equities before enjoining a beneficial municipal activity,

A. PLAN or Macro-management of your research
-What database do I use?
-What are the research terms?
-Where do you start?
Secondary Sources – Westlaw: One source; and a second source

B. RESEARCH – a circular process of back and forth – micromanagement

• Cases found in secondary sources
• Digest searches
• KeyCite/BCite/Shepardize
• Keynumbers (headnotes)
• Full text searches in the Federal Cases library

Class Presentation.