Judicial Highlights

Sean Skaggs
Ebbin, Moser & Skaggs

Species Location Information Must Be Disclosed under FOIA

National Ass’n of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002)
In response to a Freedom of Information Act (FOIA) request for information on the cactus ferruginous pygmy owl, the U.S. Fish and Wildlife Service (USFWS) redacted site-specific location information. USFWS argued that the location of pygmy owl sites was private and that a release of the information would constitute an unwarranted invasion of the privacy of the landowners. In addition to invoking the privacy exemption to FOIA, USFWS asserted three other FOIA exemptions, deliberative process, commercial trade secrets, and exemption by statute. The D.C. Circuit found that the factual information concerning site specific locations of pygmy owls did not qualify for deliberative process or commercial information exemptions and that there is nothing in the Endangered Species Act that authorizes the withholding of species location data in response to a FOIA. The D.C. Circuit also found the privacy exemption inapplicable because USFWS had failed to rebut the presumption favoring disclosure by showing that such disclosure would be “clearly unwarranted.”

Eleventh Circuit Holds that the Catalyst Test Continues to be Appropriate for Attorney Fee Shifting under the ESA After the Supreme Court’s Decision in Buckhannon

Loggerhead Turtle v. County Council of Volusia County, 307 F.3d 1318 (11th Cir. 2002)
This case involved allegations that the County practice of allowing vehicles to drive on beaches was causing incidental take of sea turtles and that County’s coastal lighting ordinances were insufficient to prevent incidental take of sea turtles from lighting disorientation. At the outset of the litigation, the County sought an incidental take permit from USFWS and the case evolved into a challenge to the incidental take permit that was subsequently issued by USFWS. The USFWS decision to issue the permit was upheld. Plaintiffs sought attorneys’ fees in this case even though, ultimately, they had not prevailed in the litigation. The district court held that plaintiffs were entitled to attorneys fees because the plaintiffs’ suit was the catalyst for improved conservation of the sea turtles. The County appealed, arguing that the recent Supreme Court decision in Buckhannon Board & Care Home v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598 (2001), invalidated the use of the catalyst test as a basis for fee shifting. The Eleventh Circuit noted that the Supreme Court’s elimination of the catalyst test as a basis for awarding attorneys fees occurred in the context of statutes that authorize attorney fees only to a “prevailing party.” The Eleventh Circuit interpreted Buckhannonas applying only to those statutes that use the phrase “prevailing party.” In contrast, the fee shifting provisions of statutes like the Endangered Species Act and Clean Water Act and Clean Air Act do not use the language “prevailing party” and instead provide that attorney fees should be awarded “whenever appropriate.” The Eleventh Circuit found “unambiguous evidence” that Congress intended that a plaintiff whose suit furthers the goals of a “whenever appropriate” statute should be entitled to recover attorneys fees.

More Critical Habitat Designations Remanded to the U.S. Fish and Wildlife Service

Building Industry Legal Defense Foundation v. Norton, 231 F. Supp.2d 100 (D.D.C. 2002)
On Oct. 30, 2002, the District Court for the District of Columbia remanded Critical Habitat designations for the arroyo southwestern toad and the Riverside fairy shrimp based on improper economic analyses. The plaintiffs challenged USFWS’s use of the “baseline” approach to examine the economic impacts of a critical habitat designation. The baseline approach attempts to limit the economic impact analysis to that part which is attributable to critical habitat only, and ignores the economic impact that may be the result of species listing. The Tenth Circuit recently invalidated the baseline approach and required the economic analysis to examine the full economic impact of the designation, even if some of the impacts are attributable to other causes as well (See New Mexico Cattle Growers Ass’n v. United States Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). Based on the Tenth Circuit’s decision, USFWS sought a voluntary remand and vacature of the existing Critical Habitat designations. Intervening environmental groups opposed vacature. The court found that vacating the existing designations was appropriate because USFWS’s practice constituted “substantive error” and there was no specific threat to the species in the absence of Critical Habitat. New Critical Habitat designations for the two species were ordered to be completed within 21 months.

The D.C. Circuit Examines the ESA’s “Maximum Extent Practicable” Standard

Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002)
The D.C. Circuit stated that the Section 10 permit issuance criterion requiring that mitigation be to the “maximum extent practicable” requires that USFWS find independently that the mitigation offered by an applicant is the maximum extent practicable. In this case, a reduced impact alternative was available, but had been rejected by the developer. USFWS merely noted in its set of findings that the developer had said the alternative was not practicable. USFWS did not independently analyze the issue in its decision documents. The court held that because USFWS did not make a necessary finding under Section 10 of the ESA, issuance of the permit was invalid and needed to be remanded to the agency.

The Ninth Circuit Finds Fault with the U.S. Fish and Wildlife Service’s Petition Management Guidance

Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir. 2002)
Plaintiffs filed suit to force the USFWS to render a decision on plaintiffs’ petition to have a number of plant and animal species listed as endangered. At issue in this case was the USFWS interpretation of Section 4 of the ESA as providing some flexibility in meeting the deadline for acting on citizen petitions. Section 4 requires a preliminary determination within ninety days and a final determination within twelve months. According to USFWS petition management guidance, if it is not practicable to meet the ninety day deadline, then the twelve month deadline is also waived. The Ninth Circuit disagreed, holding that the ESA requires a final determination on citizen petitions within twelve months of receipt, regardless of when the initial determination is made. The Ninth Circuit also held that the district court properly concluded that it did not have discretion to consider USFWS’s stated priorities, but instead must grant injunctive relief when mandatory deadlines are missed.

Injunction Prohibiting Timber Harvest Before Obtaining an ESA Permit Did Not Constitute a Taking under the Fifth Amendment

Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir. July 2002).
A takings claim filed by Boise alleged that the prohibition on logging during a year-long court injunction amounted to a taking. The claims court dismissed the claim and the Federal Circuit affirmed. USFWS obtained an injunction against Boise to prevent timber harvest on a specific tract of forest containing at least one pair of northern spotted owls without first obtaining an incidental take permit. Before Boise could obtain an incidental take permit, it was discovered that northern spotted owls no longer occupied the site, and a permit would not be needed. The injunction was accordingly lifted. Boise asserted that the injunction amounted to a physical taking, a regulatory taking, and a temporary regulatory taking, but did not argue there had been “extraordinary delay” in the permit process. The Federal Circuit rejected the physical taking theory out of hand and held that there could be no regulatory taking, temporary or otherwise, unless the government had first denied a permit, which had not occurred in this case.