795 F. Supp. 2d 1236
D. Colo.2011Background
- This action challenges the FWS's 2008 removal of protection for the Preble's Meadow Jumping Mouse in Wyoming and its continued protection elsewhere under the ESA.
- The 2008 Amended Listing Decision rested on a Solicitor Memorandum interpreting the phrase 'in danger of extinction throughout all or a significant portion of its range.'
- District court decisions in Montana and Arizona rejected that Solicitor interpretation as inconsistent with the statutory text, prompting consideration of remand and vacatur.
- The Solicitor subsequently withdrew the challenged interpretation, and the FWS proposed a joint policy with NMFS regarding the interpretation and implementation of the phrase.
- Respondents moved for voluntary remand and vacatur to allow reconsideration consistent with new authority and intervening judicial views.
- The court grants remand and vacatur, with the 2008 decision vacated and the 1998 listing and 4(d) rule reinstated pending reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to grant voluntary remand? | Wyoming and intervenors argue remand premature. | Respondents assert new authorities justify remand. | Remand granted. |
| Whether vacatur is appropriate without a merits ruling? | Vacatur unnecessary absent merits decision. | Vacatur equitable to cure defects and preserve protections. | Vacatur appropriate; equitable relief granted. |
| Impact of withdrawn Solicitor interpretation on the rule's deficiencies? | Deficiencies remain despite withdrawal, requiring remand. | Withdrawal cures the legal basis for the 2008 rule. | Deficiencies remain; remand needed. |
| What should vacatur and remand accomplish procedurally? | Reinstatement of 1998 rule and 4(d) protections is acceptable pending reconsideration. | Remand allows reconsideration under proper procedures. | Remand and vacatur ordered with reinstatement of pre-2008 protections pending review. |
Key Cases Cited
- United Mine Workers v. Dole, 870 F.2d 662 (D.C.Cir. 1993) (equitable considerations govern vacatur remedies)
- Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399 (D.C.Cir. 1998) (vacatur as a remedy for invalid agency action)
- Sierra Club v. Antwerp, 560 F. Supp. 2d 21 (D.D.C. 2008) (remand principles and reconsideration standards)
- Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d 126 (D.D.C. 2010) (remand when agency concedes error and new evidence exists)
- Be bolder citations follow, 275 F. Supp. 2d 1136 (C.D. Cal. 2002) (a cited authority on agency remand and vacatur)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (Supreme Court 1978) (ESA's protective aims guide balancing inquiries)
- Natural Res. Def. Council v. U.S. Dep't of Interior, 275 F. Supp. 2d 1136 (C.D. Cal. 2002) (procedural versus substantive errors in rulemaking)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (equitable considerations in remand/relief decisions)