960 F.3d 223
5th Cir.2020Background
- Texella reyesi (Bone Cave harvestman) is an endangered arachnid listed by FWS; "take" and habitat-disturbing activities are federally prohibited.
- In 2014, landowners and a nonprofit petitioned FWS to delist the species based on newly reported localities and protections; FWS issued a negative 90-day finding in 2015 for insufficient trend/population evidence.
- Original Plaintiffs sued under the APA challenging the negative 90-day finding; Yearwood and Williamson County intervened to raise a separate constitutional challenge (Commerce/Necessary & Proper Clauses) and seek injunctive relief against enforcement.
- The district court granted summary judgment to the Original Plaintiffs, vacated FWS’s negative 90-day finding, and remanded; it denied the Intervening Plaintiffs’ motion (holding Yearwood’s constitutional claim precluded by precedent and Williamson County’s claim time-barred).
- After vacatur, FWS issued a positive 90-day finding and began a 12-month review; the Intervening Plaintiffs appealed but the Fifth Circuit dismissed for lack of jurisdiction as either moot or barred by sovereign immunity/statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability/mootness of appeal after district-court vacatur of FWS denial | Vacatur did not fully remedy Intervenors because they sought broader relief (declaring listing unconstitutional; injunction) — appeal remains live | Vacatur restored status quo ante; the specific agency action complained of (denial) no longer exists, so the appeal is moot | Moot: vacatur removed the challenged action, so appeal is nonjusticiable as to that agency denial |
| Whether denial of delisting restarts six-year limitations to challenge original listing under Dunn-McCampbell | Denial of petition functions like an application of the rule to the petitioners and restarts a new six-year window | Dunn-McCampbell allows a new claim only to challenge the specific application, not to revive untimely facial challenges to the original listing | Held: even if denial could create a new claim, vacatur eliminated that new action; absent a new direct final agency action against the plaintiff, the original-listing challenge is time-barred |
| Sovereign immunity / statute of limitations for APA challenge to original listing | Intervenors argued their injuries arise from current enforcement and thus may be challenged now | United States contends APA review of the original listing must be brought within six years of the listing; later suit is barred absent a qualifying later agency action applying the rule | Held: challenges to the original listing are jurisdictionally barred by the six-year limitations period (sovereign-immunity waiver in APA does not apply after six years) |
| Merits of Commerce Clause challenge to ESA listing | Intervenors (Yearwood) argued federal regulation of this intrastate species exceeds Congress’s commerce power | Government relied on Fifth Circuit precedent upholding ESA regulation as within Congress’s commerce authority | Held: Court did not reach merits because jurisdictional defects dispositive; district court had relied on GDF Realty upholding Commerce Clause application |
Key Cases Cited
- Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283 (5th Cir. 1997) (distinguishes facial challenges from challenges to specific agency applications and explains new six‑year cause of action for specific applications)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, traceable, redressable injury)
- Golden v. Zwickler, 394 U.S. 103 (federal courts do not issue advisory opinions)
- GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (upholding ESA regulation of the Bone Cave harvestman under the Commerce Clause)
- Forney v. Apfel, 524 U.S. 266 (distinguishes Social Security Act review provisions from APA remedies)
- Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147 (D.C. Cir. 1990) (limits on when procedural challenges to rulemaking may be brought)
- Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) (agency application of rule can create a new cause of action)