Conservancy of Southwest Florida v. U.S. Fish & Wildlife Service
42 Envtl. L. Rep. (Envtl. Law Inst.) 20091, 2012 WL 1319857, 677 F.3d 1073 (2012)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The denial of a petition to initiate rulemaking for critical habitat designation of a species listed as endangered before the 1978 amendments to the Endangered Species Act is committed to agency discretion by law and thus not subject to judicial review under the Administrative Procedure Act, as neither the ESA nor its implementing regulations provide meaningful standards to guide or limit the agency's discretion in such circumstances.
Facts:
- In 1967, the Secretary of the Interior listed the Florida panther as an endangered species, more than a decade before the 1978 ESA amendments that would require concurrent critical-habitat designation.
- At the time of its listing and since, no critical habitat has been designated for the Florida panther, nor has the Secretary initiated rulemaking procedures to designate it.
- In 2009, several environmental-advocacy groups, including Conservancy of Southwest Florida, Center for Biological Diversity, Public Employees for Environmental Responsibility, Council of Civic Associations, and Sierra Club, submitted petitions to the U.S. Fish and Wildlife Service.
- These petitions cited scientific studies detailing the decline of the Florida panther population due to the loss, degradation, and fragmentation of its habitat and requested that the Service designate specific areas as critical habitat.
- In February 2010, the U.S. Fish and Wildlife Service denied the petitions, explaining that its ongoing efforts to protect the Florida panther's habitat were sufficient, thereby eliminating any perceived need to designate critical habitat.
Procedural Posture:
- Environmental-advocacy groups (Conservancy of Southwest Florida, Center for Biological Diversity, Public Employees for Environmental Responsibility, Council of Civic Associations, and Sierra Club) filed suit in the United States District Court for the Middle District of Florida, claiming the U.S. Fish and Wildlife Service’s denial of their petitions was arbitrary and capricious under the Administrative Procedure Act and the ESA citizen-suit provisions.
- The Seminole Tribe of Florida and Eastern Collier Property Owners successfully moved to intervene as defendants in the district court.
- Federal Defendants and Intervenor-Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and (b)(6).
- The District Court for the Middle District of Florida granted the motions to dismiss, concluding that the Service’s denial of Plaintiffs’ petitions was committed to agency discretion by law and therefore not subject to APA review.
- Plaintiffs appealed the district court's dismissal to the United States Court of Appeals for the Eleventh Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Administrative Procedure Act authorize judicial review of the U.S. Fish and Wildlife Service's denial of a petition to initiate rulemaking to designate critical habitat for a species listed as endangered before the 1978 amendments to the Endangered Species Act?
Opinions:
Majority - Tjoflat, Circuit Judge
No, the Administrative Procedure Act does not authorize judicial review of the U.S. Fish and Wildlife Service's denial of petitions to initiate rulemaking to designate critical habitat for the Florida panther. The court concluded that the Service's decision was 'committed to agency discretion by law' under 5 U.S.C. § 701(a)(2) because there was 'no law to apply' from which to judge the agency's exercise of discretion. For species listed prior to the 1978 ESA amendments, such as the Florida panther, the statute provides that critical habitat 'may be established' (16 U.S.C. § 1532(5)(B)), in contrast to the mandatory 'shall' for species listed concurrently with critical habitat designations (16 U.S.C. § 1533(a)(3)(A)(i)). The court determined that the regulations cited by Plaintiffs (50 C.F.R. §§ 424.12(a), (b), and 424.19) and the statutory 'best scientific data available' requirement (16 U.S.C. § 1533(b)(2)) pertain to the process of designating critical habitat once that decision is made, or to species listed under the concurrent designation requirement, not to the initial discretionary decision whether to initiate rulemaking for a pre-1978 species. The court also rejected the applicability of an uncodified 1982 amendment provision, as it referred to regulations proposed by the Secretary, not by petitioners. The court further noted that decisions to refuse rulemaking, like nonenforcement decisions, involve complex balancing of agency priorities and resources, making them generally unsuitable for judicial review in the absence of clear legal standards.
Analysis:
This case reinforces the narrow scope of judicial review under the Administrative Procedure Act when agency action is 'committed to agency discretion by law,' particularly concerning agency decisions not to initiate rulemaking. It highlights the critical distinction between mandatory ('shall') and permissive ('may') statutory language in conferring agency duties and its impact on judicial reviewability. The ruling clarifies that, absent explicit statutory or regulatory standards limiting agency discretion for species listed prior to significant ESA amendments, courts will typically refrain from reviewing such decisions, thereby making it more challenging for environmental groups to compel critical habitat designations for older-listed species through APA challenges.
