While section 9 of the Endangered Species Act (ESA) generally prohibits the “taking” of an endangered species, under section 10 of the ESA the U.S. Fish and Wildlife Service (Service) may issue a permit exempting an activity from the take prohibition if the take is for scientific purposes or to enhance the propagation or survival of an endangered species. Under the authority provided by section 10, the Service established the Captive Bred Wildlife permitting program (Program). The Program permits a registrant to export, import, deliver, receive, carry, sell, transport, and ship an endangered species if such activity is to enhance the propagation or survival of the species.
In the early part of this century the Phoenix Herpetological Society, Inc. (Society) applied to and was registered under the Program for certain species. Over the years the Society applied for various amendments to its registration. Some of these amendments were granted, and some were not.
In February 2018, the Society applied to amend its registration to include the Komodo dragon (Varanus komodoensis). According to the Service’s application form and website, the Service requires up to 90 days to review and act on the application. However, after more than a year of waiting, the Service had not acted on the Society’s application for the dragon. As a result, in March 2019 the Society filed a federal lawsuit alleging violations of the Administrative Procedure Act and ESA, and seeking to compel the Service to act on its application. The lawsuit also alleges that the Service placed an improper condition on an import permit that was issued under the Convention on International Trade in Endangered Species of Wild Fauna and Flora. (If you want to learn more about CITES and the Tiger King click here.)
Approximately four months after the lawsuit was filed the Service issued a final determination approving the Society’s application with respect to the Komodo dragon. Thereafter, the Service filed a motion to dismiss the claims relating to the application on the basis that those claims were now moot.
Generally speaking, federal courts may only decide live controversies. If due to some action after litigation is filed the controversy is no longer live, then the controversy is deemed “moot.” There are, however, a handful of exceptions to this mootness doctrine. One exception is when the controversy is “capable of repetition, yet evading review.” Essentially, this exception applies when it is likely that the plaintiff will suffer the same type of harm again and the court will not have the opportunity to resolve the legality of the alleged harm before it is mooted.
The Society argued that the above exception applied because the Service has a long history of only acting on an application after a lawsuit is filed. While the district court found the argument intriguing, it declined to find that the exception applied based on the facts that were presently before it, as the Society could only provide one declaration describing two prior instances occurring within the last five years in which the Service delayed action on an application until after suit was filed. (Order available here.)
Notably, while the court granted the motion to dismiss based on mootness, it also granted the Society the opportunity to file an amended complaint alleging additional facts demonstrating that the Service has a practice of delaying action on an application until a lawsuit is filed.
Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...
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.
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