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BIODIVERSITY LEGAL FOUNDATION v. BABBITT

August 27, 1999

BIODIVERSITY LEGAL FOUNDATION, PLAINTIFF,
v.
BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robertson, District Judge.

MEMORANDUM

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.

FACTS

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 delegated to 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.

ANALYSIS

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 injury").

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 citation omitted).

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

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