Conservancy Of Southwest Florida v. U.S. Fish & Wildlife Service

Apr 18: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-11915. Appealed from the United States District Court for the Middle District of Florida. The case concerns a challenge, brought by a number of environmental groups under the Administrative Procedure Act (APA) to the United States Fish and Wildlife Service's denial of petitions to designate critical habitat for the Florida panther. The Endangered Species Act of 1973 (ESA) empowers the Secretary of the Interior to designate "critical habitat" for species of fish, wildlife, or plants that have been identified by the Secretary as "endangered" or "threatened." The practical result of designating critical habitat is that Federal agencies must then, in consultation with the Secretary, ensure not only that their actions are "not likely to jeopardize the continued existence" of such species, but also that they do not "result in the destruction or adverse modification" of critical habitat.

 

    In this case, the environmental-advocacy groups petitioned the Fish and Wildlife Service, an agency within the Department of the Interior, to begin rulemaking to designate critical habitat for the Florida panther and, when the Service denied their petitions, sued in district court under the APA. They claimed that the denial of their petitions was arbitrary and capricious. The Appeals Court ruled, "We conclude, however, that the denial of their petitions is not subject to judicial review under the APA because it is 'committed to agency discretion by law.' 5 U.S.C. § 701(a)(2). Accordingly, we affirm the district court's order of dismissal."

 

    The Appeals Court noted further, "We take care to note that not every agency action that is in some sense discretionary is exempt from APA review. Otherwise there would be little sense in the APA's provision for abuse of discretion review. See Heckler, 470 U.S. at 829, 105 S. Ct. at 1654 (pointing out the tension, noted by some commentators, between a too-literal reading of the statutory phrase 'committed to agency discretion by law' and 5 U.S.C. § 706(2)(A)'s provision for review for abuse of discretion). Rulemaking inevitably requires the exercise of discretion, but courts nevertheless review agency rulemaking under the APA. . ."

 

    Access the complete opinion (click here). [#Wildlife, #CA11]

 

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