Friends of Blackwater v. Kenneth Salazar
402 U.S. App. D.C. 276
D.C. Cir.2012Background
- Secretary of the Interior delisted the West Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus) despite Recovery Plan criteria not being met.
- District Court granted summary judgment for Friends of Blackwater, holding the Recovery Plan criteria bound the Secretary’s delisting decision and required notice-and-comment rulemaking, later vacating the Delisting Rule.
- The 1990 Recovery Plan listed four delisting criteria; the Service later treated the plan as non-binding guidance rather than a hard prerequisite.
- In 2006–2007 the Service found the Recovery Plan was out of date and relied on persistence data (presence across range) to support delisting, noting population data were unavailable.
- Final Rule (Aug. 2008) relied on persistence data and treated Recovery Plan criteria as non-binding guidance, applying the five § 4(a)(1) factors to delisting; district court’s judgment was reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Recovery Plan criteria binding preconditions to delisting? | Friends: criteria must be met before delisting. | Secretary: criteria are non-binding guidance for evaluating delisting. | Recovery Plan criteria are not binding; delisting can proceed under §4(a)(1) factors. |
| May the Service rely on persistence data rather than population data in delisting? | Friends: must use population data; deviation violates best data standard. | Secretary may use best available data, including persistence when population data are unavailable. | Service properly used best available data (persistence) to support delisting. |
| Did the Service adequately account for departures from the Recovery Plan and follow §4(f) revision procedures? | Friends: changes to plan criteria without notice violate §4(f)(4). | Plan is non-binding; revisions and notice requirements do not constrain delisting analysis. | Service’s departure was adequately explained; §4(f) revision procedures were not triggered to prohibit delisting. |
Key Cases Cited
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (U.S. 1984) (two-step framework for agency statutory interpretation)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (land-use plans non-binding where Congress grants leeway in implementation)
- Southwest Center for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000) (best data available; agency may rely on existing estimates rather than conducting new studies)
- Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175 (D.C. Cir. 2000) (logical outgrowth doctrine in rulemaking)
- Fund for Animals v. Rice, 85 F.3d 535 (11th Cir. 1996) (relevance of guidance in recovery plans to regulatory action)