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Environmental Law

: ESA Blawg

AFRC v. Hall: Wanna sue over a 5-year review? Sorry, no can do.

By Keith Rizzardi

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American Forest Resource Council v. Hall, Civ. No. 07-0484 (D.D.C. Feb. 5, 2008)(a 5-year status report, leading to no change in a species status, was not subject to judicial review.)

BACKGROUND: For many years, the Plaintiffs, American Forest Resource Council (AFRC), a a forest products trade association, have been engaged in litigation releated to the listing of the marbled murrelet, a sea-dwelling bird that nests in old growth forests. The murrelet was previously deemed a "distinct population segment" (or DPS) in the States of California, Oregon, and Washington, and listed as threatened in those three states. 57 Fed. Reg. 45328 (Oct. 1, 1992). Thereafter, during the period from 1992 to 2002, the U.S. Fish & Wildlife Service (FWS) failed to complete the "5-year review" of the status of this species. AFRC sued over that inaction in March 2002, and FWS then completed a status review report in September 2004, concluding that the threats to the species remained, but the tri-state population did not qualify as a DPS under the FWS policy. Nevertheless, FWS announced the need for a range-wide review of the species before it would delist the murrelet, and thus, there was no change in the species' states.

Photo from National Park Service

SUMMARY: AFRC argued that the conclusions in FWS's 5-year status review were arbitrary and capricious because the review allegedly failed to follow rulemaking procedures, because the review was allegedly conducted by "low level employees," and because FWS should have conducted further analysis pursuant to the National Environmental Policy Act. The Court, however, never reached any of these issues. Instead, the Court applied the constitutional principles of Article III, and the need for an "actual case or controversy. Specifically, citing the two-part test articulated by the U.S. Supreme Court decision in Bennett v. Spear, 520 U.S. 154, 177 (1997), U.S. District Court Judge John Bates held that (1) although the 5 year review was "final," and reflected the consummation of the agency's decision-making process, (2) the decision was not one from which "rights or obligations have been determined, or from which legal consequences will flow." As the Court further explained:

"The status review either leaves things just as they were, or it is the start of a process to change the listing of a species -- a process requiring APA rulemaking... There is no mandatory duty (to engage in that rulemaking pursuant to the ESA) and no request triggering a rulemaking has been made. The Federal Defendants correctly point out that if AFRC believes that the threatened listing of the tri-state population causes its members injury, AFRC has the right and the ability to petition FWS to delist the population... Plaintiff has failed to pursue this course of action... As of now, FWS has not declined to delist the tri-state population; it has simply made the recommendation that the species remain listed as threatened. Plaintiffs' legal obligations and rights remained exactly the same the day before, and the day after, the five year status report..."

Accordingly, the court held, the 5 year status review was not properly subject to judicial review.

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