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:
(i) the petitioned action is not warranted . . . (ii)
the petitioned action is warranted . . . (iii) the
petitioned actions is warranted but ...