Conservation Force v. Kenneth Salazar
699 F.3d 538
D.C. Cir.2012Background
- Conservation Force and others sued the Secretary of Interior and the FWS under ESA § 1540(g) for failures to process imports of Canadian wood bison hunting trophies.
- FWS denied the import permits more than six months after the complaint; district court dismissed permit processing claims as moot.
- District court held Bennett v. Spear foreclosed review of § 1540(g)(1)(C) claims, making appellants ineligible for fees.
- Appellants argued their claims fit § 1540(g)(1)(A) for alleged violations of the ESA or implementing regs, entitling fees.
- On appeal, the court affirmed the denial of fees, concluding the delay was a discretionary agency action, not a § 1540(g)(1)(A) violation.
- The court treated the district court’s reasoning as correct and held the catalyst-fee theory inapplicable to these claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1540(g)(1)(A) claims were reviewable | Conservation Force argued § 1540(g)(1)(A) covers violations applicable to FWS. | FWS argued only non-discretionary duties are reviewable under § 1540(g)(1)(A) as limited by Bennett. | No; § 1540(g)(1)(A) does not cover discretionary delays. |
| Whether permit processing delays constitute a § 1540(g)(1)(A) violation | Delays in processing permits violate statutory/regulatory duties to act timely. | Delays are discretionary and not actionable as a § 1540(g)(1)(A) violation. | Delay is discretionary, not a § 1540(g)(1)(A) violation. |
| Whether Bennett v. Spear limits apply to this case | Bennett’s framework allows § 1540(g)(1)(A) claims for agency administration failures. | Bennett confines such claims to non-discretionary duties and final agency action requirements. | Bennett limits apply; cases here involve discretionary administration, not actionable § 1540(g)(1)(A) violations. |
| Whether appellants are entitled to fees under § 1540(g)(4) | Catalyst theory allows fees when appropriate under § 1540(g)(4). | Because § 1540(g)(1)(C) review was not available, fees are improper. | Fees denied; claims not eligible under § 1540(g)(4). |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (A vs C distinction; §1540(g)(1)(A) limited to violations, not admin.)
- Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003) (catalyst theory guidance for fees under analogous statutes)
- Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (abuse-of-discretion standard in fee decisions)
- Kickapoo Tribe v. Babbitt, 43 F.3d 1491 (D.C. Cir. 1995) (legal standard for agency interpretation of statutes)
- Envtl. Prot. Inf. Ctr. v. Simpson Timber Co., 255 F.3d 1073 (9th Cir. 2001) (compare Bennett v. Spear with agency administration questions)