United States District Court, District of Columbia
August 27, 1999
BIODIVERSITY LEGAL FOUNDATION, PLAINTIFF,
BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Robertson, District Judge.
The Endangered Species Act, 16 U.S.C. § 1531 et seq., provides that
citizens may petition for the inclusion of species on the endangered list
and requires the Fish and Wildlife Service to make preliminary findings
on such petitions to "the maximum extent practicable" within 90 days.
Plaintiff, a nonprofit organization concerned with the preservation of
plants, animals, and ecosystems, seeks a declaratory judgment that an FWS
delay of nearly two years in making the required preliminary finding on
its petition to list the Baird's Sparrow was unlawful.
The pending cross-motions for summary judgment present the question of
how much license FWS has under the "maximum extent practicable" language
of the statute — and under Chevron U.S.A., Inc. v. NRDC,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and its progeny
— to delay issuing its preliminary findings. This memorandum sets
forth the reasons for the court's conclusions that plaintiff has
standing, that FWS did not moot this case when it finally issued its
preliminary finding on the Baird's Sparrow, and that it was unlawful for
FWS to wait nearly two years before issuing its preliminary finding. FWS
may appropriately take more than 90 days to issue preliminary findings if
it is acting in compliance with its Listing Priority Guidance, see
Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249 (10th Cir.
1998), but it may not simply ignore the 90-day deadline in order to avoid
starting the clock on another statutory deadline.
Plaintiff Biodiversity Legal Foundation monitors the Fish and Wildlife
Service's stewardship of its obligations under the Endangered Species
Act. It has filed a number of suits challenging FWS delays in responding
to citizen petitions. Its citizen petition in this case, to list the
Baird's Sparrow, a songbird residing in the Dakotas, Minnesota, Montana,
and Canada, was filed on June 26, 1997. The ESA requires that the
Secretary of the Interor "[t]o the maximum extent practicable, within 90
days after receiving the petition of an interested person . . . make a
finding as to whether the petition presents substantial scientific or
commercial information indicating that the petitioned action may be
warranted." 16 U.S.C. § 1533 (b)(3)(A). This statutory duty has been
the Fish and Wildlife Service by 50 C.F.R. § 402.01 (b).
The FWS did not issue a finding within 90 days. On October 13 and
October 27, 1997, 107 and 121 days after filing its petition, plaintiff
gave formal notice to FWS that it was in violation of the Endangered
Species Act and that it intended to sue.*fn1 FWS did not respond, and
plaintiff did not sue. On March 19, 1998, nearly nine months after filing
its petition, plaintiff asked FWS for information on its status. FWS
replied, on April 6, 1998, that it intended to prepare its 90-day finding
by June 29, 1998. June 29 came and went without any FWS finding —
although, unbeknownst to plaintiff, the Migratory Bird Office did make a
recommendation in June 1998 that the Baird's Sparrow not be listed as
endangered, and a field office of FWS did prepare a draft negative
finding, also in June 1998, on the basis of that recommendation.
Plaintiff filed this action on November 20, 1998. On May 21, 1999, the
day FWS' written discovery responses were due, FWS published its 90-day
finding that the petition did not "present substantial information
indicating that listing of this species as threatened may be warranted."
Def.Exh. 2. Plaintiff moved for summary judgment on June 21, 1999,
asserting that FWS had not complied with the statutory command to issue
findings within 90 days "to the maximum extent practicable." Defendants
moved for summary judgment on July 21, 1999, asserting that the case was
now moot and that, in any event, it had complied with the statute. Oral
argument was heard on July 30, 1999.
1. Standing. Defendants have not challenged the standing of plaintiff
Biodiversity Legal Foundation to maintain this action, nor could they
successfully do so. The elements of both constitutional and prudential
standing are satisfied by Biodiversity Legal Foundation's allegations
that the law has been violated and that its status and mission make it an
appropriate plaintiff. See, e.g., Lujan v. Defenders of Wildlife,
504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("the desire
to use or observe an animal species, even for purely esthetic purposes,
is undeniably a cognizable interest for purpose of standing"); Animal
Legal Defense Fund v. Glickman, 154 F.3d 426, 433 (D.C.Cir. 1998)
(individual plaintiff establishes injury in fact merely by "seeing with
his own eyes the particular animals whose condition caused him aesthetic
2. Mootness. Plaintiffs complaint demanded an injunction to compel FWS
to rule on the Baird's Sparrow petition and a declaratory judgment that
the FWS delay was unlawful. The demand for injunctive relief is now
unquestionably moot, FWS having issued its ruling. As for the demand for
declaratory relief, however, plaintiff asserts that FWS "routinely ceases
its offending conduct before any litigation can be resolved." Pl.Mem. at
20. This case fits easily within the "capable of repetition yet evading
review" exception to the mootness doctrine, because "(1) the challenged
action is in its duration too short to be fully litigated prior to its
cessation or expiration and (2) there [is] a reasonable expectation that
the same complaining party would be subjected to the same action again."
Clarke v. United States, 915 F.2d 699, 704 (D.C.Cir. 1990) (quotation and
3. Merits. Section 4 of the Endangered Species Act provides in relevant
part as follows:
"(A) To the maximum extent practicable, within 90 days
of receiving the petition of an interested person . . .
the Secretary shall make a finding as to whether the
petition presents substantial scientific or commercial
information indicating that the petition may be
warranted. . . .
(B) Within 12 months after receiving a petition that
is found under subparagraph (A) to present substantial
information indicating that the petitioned action may
be warranted, the Secretary shall make one of the
(i) the petitioned action is not warranted . . . (ii)
the petitioned action is warranted . . . (iii) the
petitioned actions is warranted but [precluded by
other listing activity]."
16 U.S.C. § 1533 (b)(3) (emphasis added).
Congress obviously did not intend the 90-day period for preliminary
findings to be inflexible. It recognized that the Secretary would need to
establish priorities, and indeed it required that the Secretary establish
guidelines that would include "a ranking system to assist in the
identification of species that should receive priority review. . . ."
16 U.S.C. § 1533 (h)(3). In compliance with that requirement, the
Secretary published a "Listing Priority Guidance." Last year, in
Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249, 1256 (10th Cir.
1998), the Tenth Circuit held FWS' implementation of and adherence to the
Listing Priority Guidance to have been based on a reasonable construction
of the statute and entitled to deference under Chevron. That decision is
This case, however, presents issues that were not resolved by the Tenth
Circuit decision, including the factual question whether FWS was actually
adhering to the Listing Priority Guidance. FWS' own submission suggests
that FWS was not using all of the 23 months between the filing of
plaintiffs petition and the issuance of its ruling to deal with other
species more threatened than the Baird's Sparrow.*fn2 It appears that, at
least from June 1998, when a FWS field office prepared a draft negative
finding, until May 1999, when FWS publicly announced its finding, FWS was
not working on higher priority endangered species petitions. Instead, FWS
was working on NEPA document reviews, Clean Water Act obligations,
federal water project activities, and responding to congressional
inquiries. See Def.'s Statement of Material Facts ¶ 25.
And plaintiff in this case seeks to present the question, not decided
by the Tenth Circuit, whether the 12-month deadline for issuance of final
decisions on citizen petitions is as flexible as the 90-day deadline for
preliminary findings. The statute requires that the Secretary find the
action requested by a petition to be (i) not warranted, (ii) warranted,
or (iii) warranted but precluded by other regulatory activity, "within
12-months after receiving a petition that is found under subparagraph (A)
to present substantial information indicating that the petitioned action
may be warranted." The language is clumsy, but not ambiguous. It does not
permit the Secretary to take 23 months to make a preliminary finding and
then 12 months to make the final determination. The 12 month period runs
from the receipt of the petition, not from the preliminary finding.
In this case, of course, because the Secretary's subparagraph (A)
finding was negative, subparagraph's (B) 12-month deadline was not
triggered. But it appears from an internal FWS e-mail that it was FWS
practice, at least in FWS Region 6, which was responsible for the Baird's
Sparrow petition, to ignore citizen petitions, precisely in order to avoid
starting the 12-month clock on subparagraph (B) findings if the
subparagraph (A) finding should be affirmative:
"R6 [FWS' Region 6, responsible for the Baird's
Sparrow petition] up till now has ignored re[s]ponding
to petitions. . . . It turns out R6 is the only region
that ignores petitions. . . . By law, within 90 days
of receiving a petition, FWS should make a finding
(90-day finding) as to whether the petition presents
enuf info to warrant our looking into the matter
further. . . . The 90-day finding is not a tremendous
undertaking, but it starts the clock on the 12-mo
finding, which is, hence the reason R6 has not started
the process for several petitioned species. The
petitions we have ignored, that I am aware of, are
Baird's sparrow and westslope cutthroat trout. . . ."
Def's Mem., Attach. 6 (emphasis added). That e-mail, which was placed
into the record by the government, is an admission that FWS was not in
fact trying "to the maximum extent practicable" to meet the 90-day
deadline for responding to plaintiffs Baird's Sparrow petition. It was
instead ignoring the petition, in a deliberate — and unlawful
— effort to avoid triggering the 12-month deadline.
Americans understand that they must wait for their government to act.
Those who request documents under the Freedom of Information Act have to
take their place in line, for example, see Open America v. Watergate
Special Prosecution Force, 547 F.2d 605 (D.C.Cir. 1976). Everyone has a
story about agency delays, and indeed it does not become the judiciary to
criticize other agencies or branches for not responding quickly enough to
citizen petitions. But citizens should at least expect that their
government is working on their concerns within the limits of their
manpower and funding, and not simply throwing their petitions onto "hold"
piles so that they will not be pressed to decide them within a statutory
An appropriate order accompanies this memorandum.
Upon a review of the record and for the reasons stated in an
accompanying memorandum, it is this 27th day of August 1999
ORDERED that defendants' motion for summary judgment [#12] is denied.
FURTHER ORDERED that plaintiffs motion for summary judgment [#11] is
granted in part. And it is
ORDERED and DECREED that the Fish and Wildlife Service's issuance of
its preliminary finding upon a citizen's petition to list the Baird's
Sparrow as endangered was not issued "to the maximum extent practicable,
within 90 days" and was unreasonably and unlawfully delayed in violation
of the Endangered Species Act, 16 U.S.C. § 1533 (b)(3)(A).