Endangered Species Law & Policy

The U.S. Fish and Wildlife Service (Service) prevailed on March 19th in a suit brought by the Sierra Club challenging a decision by the Service to delay revision of the critical habitat designation for the leatherback sea turtle (Dermochelys coriacea).  The United States District Court for the District of Columbia ruled that the Service's decision was not judicially reviewable under either the Administrative Procedures Act (APA) or the Endangered Species Act (ESA). Sierra Club v. U.S. Fish and Wildlife Service, 2013 U.S. Dist. LEXIS 37349 (D. D.C. March 19, 2013) (pdf).

The leatherback sea turtle has been federally protected since 1970. The Service has designated certain areas within California, Oregon, Washington, and the U.S. Virgin Islands as critical habitat for the turtle.

In 2010, the Sierra Club petitioned the Service to include the beaches and nearby waters of the Northeast Ecological Corridor of Puerto Rico (NEC) as part of the turtle’s critical habitat. Under the ESA, an interested person may petition the Service to designate critical habitat for a protected species. The Service must respond within 90 days with a determination of whether the petition presents substantial scientific information indicating that a revision of the critical habitat for that species is warranted. If the petition presents such information, the Service must announce within 12 months its intentions with regard to the requested action.

In its 90-day response to the Sierra Club’s leatherback sea turtle petition, the Service concluded the petition presented substantial scientific information indicating that revision of the critical habitat designation was warranted. In its 12-month determination, however, the Service stated that it intended to delay revision of the critical habitat until a later date.

The Sierra Club challenged this decision, alleging that it was arbitrary and capricious, and unlawfully delayed agency action.

In granting the Service's motion for summary judgement, the court held that the Service’s 12-month determination is not judicially reviewable. The court reasoned that Congress provided the Service with broad discretion to make critical habitat determinations, and chose not to set any measureable standard to evaluate such determinations. The court concluded that this type of decision is generally not suitable for judicial review, and neither the [ESA] nor the [APA] provide sufficient guidance for the Court to evaluate the [Service's] determination. As a result, [t]he 12-month determination is a decision committed to the agency’s discretion by law, and thus unreviewable by a court.