772 F. Supp. 2d 232
D.D.C.2011Background
- Squirrel listed as endangered in 1985; Recovery Plan issued in 1990 detailing downlisting/delisting criteria.
- Five-year review in 2003-2006 concluded persistence across range, leading to delisting in 2008.
- Delisting Rule (Aug. 26, 2008) declined to apply all Recovery Plan criteria, citing adaptive management.
- Plaintiffs sued challenging delisting as failing to follow ESA §4(f) and public-notice requirements.
- Court held the agency revised the Recovery Plan by abandoning two criteria and failed to provide notice/comment.
- Court vacated the Delisting Rule and remanded to FWS for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Delisting Rule violated §4(f) by revising the Recovery Plan. | Plaintiffs contend FWS revised criteria without notice. | Defendants claim delisting weighed factors under §1533(a) not the criteria. | Yes; the revision triggered §4(f) notice-and-comment requirement. |
| Whether FWS met the 'intent' of the criteria rather than actual criteria. | Plaintiffs argue intent data cannot substitute for objective criteria. | Defendants assert persistence data satisfied the intent of criteria. | No; intent cannot substitute for objective, measurable criteria. |
| Whether Recovery Plan criteria must be objective and measurable. | Plaintiffs assert criteria were objective and bound agency. | Defendants rely on plan guidance, not binding criteria. | Yes; criteria must be objective and measurable under §1533(f)(1)(B). |
| Whether the remedy should be vacatur and remand. | Vacatur preserves ESA protections until proper revision. | Remand would allow revision without vacatur. | Vacate Delisting Rule and remand to agency. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (statutory interpretation; giving effect to congressional intent)
- National Cement Co. of California, Inc. v. NRC, 494 F.3d 1066 (D.C. Cir. 2007) (Chevron framework guidance; step one)
- Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995) (recovery plans; agency revisions and public notice)
- Humane Society v. Kempthorne, 579 F. Supp. 2d 7 (D.D.C. 2008) (vacatur and ESA protections; remand preferred)
- NRDC v. U.S. Dep't of the Interior, 275 F. Supp. 2d 1136 (C.D. Cal. 2002) (ESA procedures; public notice and comment)
- Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) (statutory structure; recovery plan criteria)