D.C. Circuit Rejects Challenge to Controversial ESA Settlement

On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court.  (A short discussion of the history leading up to these settlements can be found here and here.) 

The Safari Club asserted that it had a procedural interest in the settlements because they "establish an illegal procedure - the elimination of the Service's statutory authority to find that a proposal to list a species is warranted but precluded by higher priorities."  As for injury, the Safari Club asserted that it had a concrete interest in the litigation because its members hunted three of the candidate species and, so long as the species remained on the candidacy list, its members would be able to continue to hunt the species without fear of violating the Endangered Species Act.  The D.C. Circuit rejected these arguments, finding that there was nothing in the settlement agreements that forced the Service to violate the ESA, and that the Safari Club's interest in delaying the listing of a species to benefit hunting activities was not a protected interest under the ESA.  

As for the alleged procedural injury, the D.C. Circuit found, interpreting the ESA, that there was nothing in the ESA requiring "the Service to find that listing a species is precluded under any specific circumstances."  And, Congress did not authorize judicial review of a warranted finding; "[i]nstead, a person aggrieved by a warranted finding may challenge the Service's final rule listing the species."  In light of these findings, the Court held that the Safari Club could not demonstrate a procedural injury arising from the settlements.

The D.C. Circuit also found that the warranted but precluded process established by the ESA was not intended to promote the take of a candidate species.  Instead, it was intended to be a safety valve for an overburdened agency.  Therefore, because the asserted interest (continued hunting) was contrary to the ESA's statutory purpose (protection of the species), the Safari Club could not establish a concrete injury for purposes of Article III standing.

Accordingly, the D.C. Circuit affirmed the denial of the Safari Club's motion to intervene as a matter of right.  While the Safari Club also moved for permissive intervention, the D.C. Circuit declined to address that issue on appeal, noting that it was an open question as to whether Article III standing is required for permissive intervention.

Earlier this month we reported that the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc. filed a lawsuit in the District of Columbia challenging the ESA settlements.  While the lawsuit raises many of the same arguments recently rejected by the D.C. Circuit, there do appear to be additional arguments pertaining to the procedural process which the D.C. Circuit did not address.  However, because of the substantial overlap, we do anticipate that motion practice will be forthcoming.    

Lawsuit Filed Challenging Controversial Settlement

On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species, it violated the Endangered Species Act and Administrative Procedure Act.  A short discussion of the history leading up to these settlements can be found here.  Plaintiffs allege in the complaint that "[t]he Service has abdicated a mandatory process based on best available science, public input and independent peer review in favor of a private settlement that lets two advocacy groups dictate the order, and pace of its statutorily required decision making process."  As one example, plaintiffs allege that the agreements prohibit the Service from making a "warranted but precluded finding or to continue to assess information and conservation efforts that would lead to a warranted but precluded finding."  While both settlement agreements do set forth procedures and deadlines for the Service's review, the agreements also state that "[t]he Agreement shall not (and shall not be construed to) limit or modify the discretion accorded to Defendants by the ESA, the Administrative Procedure Act ('APA'), or general principles of administrative law with respect to the procedures to be followed in making any determination required herein or as to the substance of any such determination.  No provision of this Agreement shall be interpreted as, or constitute, a commitment or requirement that Defendants take any action in contravention of the ESA, the APA, or any other law or regulation, either substantive or procedural."