Center for Biological Diversity v. Lohn

Dec 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-35638. The Apepals Court Order indicates that, "The petition for panel rehearing is granted. The opinion filed on April 26, 2007, and appearing at 483 F.3d 984 (9th Cir. 2007) is withdrawn. The superseding opinion will be filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed." In its opinion, the Appeals Court indicates that it is asked to decide whether the federal government’s policy for listing killer whales under the Endangered Species Act is invalid.

The Center for Biological Diversity (Center), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (Service) to list the Southern Resident killer whale (Southern Resident) as an endangered species under the Endangered Species Act (ESA). Applying its Distinct Population Segment Policy (DPS Policy) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon.

The Center challenged the Service’s proposed determination in district court. On cross-motions for summary judgment, the district court granted in part and denied in part. The district court concluded that the DPS Policy was not contrary to congressional intent regarding the ESA, and that it was a reasonable interpretation of the ambiguous term “distinct population segment.” However, the district court set aside the Service’s “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under that policy. The district court ordered the Service to reexamine according to the declared legal standard whether the Southern Resident should be listed as an endangered species and to issue a new finding within twelve months.

Pursuant to the district court’s order, the Service reexamined the listing petition and issued a proposed rule that recommended listing the Southern Resident as a "threatened" species. The Center then appealed from the district court’s judgment, arguing that the Service’s DPS Policy is not entitled to deference under Chevron and that the policy is unlawfully restrictive. Subsequently, the Service issued a final rule listing the Southern Resident as an "endangered" (as opposed to "threatened") species. The Service contends that this case is now moot because it has, since the district court’s decision, issued a proposed rule that recommended listing the Southern Resident as a threatened species and ultimately has issued a final rule listing the Southern Resident as an endangered species. The Center asks the Appeals Court to declare the Service’s DPS Policy unlawful and to “instruct [the Service] not to apply the DPS Policy in making a final determination on the agency’s decision to finalize the proposed rule to list the Southern Resident killer whale.”

The Appeals Court ruled, "The Service’s issuance of a final rule listing the Southern Resident as an endangered species renders this case moot. Accordingly, we vacate the portion of the district court’s order from which the Center has appealed... (noting that we will only vacate a judgment of a district court if it is appealed to this court). We dismisss this appeal as moot and remand the case to the district court with instructions to vacate its grant of summary judgment in favor of the Service."

Access the complete opinion (click here).