Aug 17: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-5128. Appealed from the United States District Court for the District of Columbia. The Secretary of the Interior appeals the district court's grant of summary judgment to the Friends of Blackwater et al. The district court held the Fish and Wildlife Service, an agency in the Department of the Interior (DOI), violated the Endangered Species Act by removing the West Virginia Northern Flying Squirrel from the list of endangered species when several criteria in the agency's Recovery Plan for the species had not been satisfied. However, in a split decision, the majority Appeals Court ruled, "We hold the district court erred by interpreting the Recovery Plan as binding the Secretary in his delisting decision. Because we also reject the Friends' alternative arguments that the Service's action was arbitrary, capricious, and contrary to law, we reverse the judgment of the district court."
The majority Appeals Court explained that in, "Whereas only ten squirrels had been sighted at the time of the original listing in 1985, by 2006 scientists had captured 1,063 individual squirrels at 107 sites. . . which suggested to the Secretary the population was robust. . . Later in 2006 the Service proposed to remove the squirrel from the list of endangered species. . . (Dec. 19, 2006). The agency explained the squirrel no longer faced any of the threats listed in § 4(a)(1) of the Act so as to warrant its continued designation as either endangered or threatened. . . With regard to the 1990 Recovery Plan, it said that because the 'recovery criteria do not specifically address the five threat factors used for ... delisting a species,' the plan 'does not provide an explicit reference point for determining the appropriate legal status of' the squirrel. . . In any event, such plans 'are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved.'"
The majority concluded, "We hold the Secretary reasonably interpreted the Endangered Species Act as not requiring that the criteria in a recovery plan be satisfied before a species may be delisted pursuant to the factors in the Act itself. Because the Secretary's determination the West Virginia Northern Flying Squirrel was no longer endangered was neither arbitrary and capricious nor in violation of the Act, the judgment of the district court is reversed." The majority also included separately, some lengthy comment on the dissenting opinion.
In a strongly worded and lengthy dissenting opinion, the one Justice summarizes, "Because Congress 'has directly spoken to the precise question at issue,' Chevron USA Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), the court's job is done. Instead, the court defers to the Secretary's interpretation, contrary to the plain text of the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, that the West Virginia Northern Flying Squirrel (Squirrel), an endangered species, loses all protections even though the recovery criteria in its recovery plan have not been met and those criteria are revised, while the Squirrel was listed as endangered, without required notice and prior consideration of public comments. But even assuming, as the court concludes, the ESA is ambiguous, the Secretary was arbitrary and capricious in delisting the Squirrel based in material part on an analysis revising the recovery plan criteria that was not publically noticed until the final delisting rule, and then only on the basis of available scientific and commercial evidence showing the Squirrel persists (i.e., is not yet extinct) as distinct from recovered so as no longer to require ESA's protections. Accordingly, I respectfully dissent."
Access the complete opinion, dissenting notes and the dissenting opinion (click here). [#Wildlife, #CADC]
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