Defenders of Wildlife v. Jackson
791 F. Supp. 2d 96
D.D.C.2011Background
- Rozol, a prairie-dog rodenticide with chlorophacinone, was registered by EPA in 2009 after prior SLN registrations and state authorizations.
- Plaintiffs allege EPA violated ESA §7(a)(2) by failing to consult with FWS before Rozol’s registration, and also challenge FIFRA, MBTA/Eagle Act, and Exec. Order 13186 violations.
- EPA did not consult with FWS before Rozol’s registration and did not publish notice in the Federal Register for the application.
- FWS had previously expressed concerns about Rozol’s impact on endangered species, including the Black-footed Ferret, and data gaps remained.
- LiphaTech, the Rozol manufacturer, intervened; EPA later cancelled local registrations in several states and initiated formal FWS consultation in 2010.
- NRDC separately sought relief; court granted in part and denied in part, with ongoing ESA injunctive relief considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ESA jurisdiction and mootness | NRDC seeks injunction until formal consultation completes; Defenders seek declaratory relief and injunctive relief mootness. | Agency began consultation; claims moot or not reviewable in court. | NRDC not moot; injunctive relief possible; Defenders’ injunctive/declaratory relief moot. |
| Exclusive jurisdiction over ESA actions | ESA challenge is properly in district court despite cancellation review in circuit court. | Cancellation review lies exclusively in the Court of Appeals; registration claims fall there. | Registration claims are within district court review; not barred by exclusive appellate jurisdiction. |
| FIFRA mootness and remand versus vacatur | Remand for notice/comment could provide relief; vacatur possible if necessary. | Remand would be duplicative; vacatur would disrupt public health and be inappropriate. | FIFRA claims are moot; remand would be duplicative; vacatur inappropriate; dismissal granted. |
| MBTA/Eagle Act claims via APA/FIFRA framework | MBTA/Eagle Act claims can be enforced via APA for agency actions under FIFRA. | FIFRA provides adequate remedy; MBTA/Eagle Act claims are not standalone under APA. | MBTA/Eagle Act claims dismissed; FIFRA provides adequate remedy. |
| Executive Order 13186 enforceability | Order imposes obligations enforceable via APA. | Order contains no judicially enforceable rights; not subject to review. | Executive Order 13186 claim dismissed; not subject to judicial review. |
Key Cases Cited
- Wash. Toxics Coal. v. Dep't of Interior, Fish & Wildlife Serv., 457 F.Supp.2d 1158 (W.D. Wash. 2006) (procedural consultation procedures can be enforced via agency action)
- Martin v. Nat'l Park Serv., 454 F.Supp.2d 1085 (E.D. Wash. 2006) (injunction pending completion of formal consultation available)
- American Littoral Soc'y v. EPA, 199 F.Supp.2d 217 (D.N.J. 2002) (began consultation moots declaratory relief; injunctive relief evaluated)
- Southwest Ctr. for Biological Diversity v. Forest Serv., 82 F.Supp.2d 1070 (D. Ariz. 2000) (injunctive relief for §7(a)(2) varies by relief requested and ongoing consultation)
- Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002) (remand without vacatur favored to avoid disruption)
- AFL-CIO v. Chao, 496 F.Supp.2d 76 (D.D.C. 2007) ( Allied-Signal factors govern vacatur decision; procedural defects weigh)
- National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (U.S. 2007) (§7(a)(2) has substantive and procedural requirements; proper remedy considerations)