Conservation Force v. Kenneth Salazar
699 F.3d 538, 403 U.S. App. D.C. 69, 75 ERC (BNA) 1737 (2012)
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Rule of Law:
An agency's delay in performing discretionary permit processing duties, even if substantial, does not constitute a 'violation' of the Endangered Species Act under 16 U.S.C. § 1540(g)(1)(A), and therefore does not make a plaintiff eligible for attorney fees under the ESA's citizen-suit provision.
Facts:
- Conservation Force and others sought permits from the Fish and Wildlife Service (FWS) to import Canadian wood bison hunting trophies.
- The Endangered Species Act (ESA) generally prohibited the importation of endangered species, but the Secretary of Interior (and his delegate, the FWS) could grant permits under limited circumstances.
- FWS regulations stated that the FWS "will process all applications as quickly as possible" but "cannot guarantee final action within the time limit you request."
- The FWS refused to process Conservation Force's permit applications for nearly nine years.
Procedural Posture:
- Conservation Force and others (appellants) sued the Secretary of Interior and the Fish and Wildlife Service (appellees) in the United States District Court for the District of Columbia, alleging violations of the ESA for refusing to process permit applications.
- More than six months after Conservation Force filed its complaint, the FWS denied the permit applications.
- The District Court dismissed the permit processing claims as moot (Conservation Force I).
- Conservation Force (appellants) then filed a motion for attorneys fees and costs in the District Court under the ESA's citizen-suit provision (§ 1540(g)(4)), based on a catalyst theory.
- The District Court denied Conservation Force's motion for attorneys fees, ruling that Bennett v. Spear prevented review of their claims under 16 U.S.C. § 1540(g)(1)(C), thus making them ineligible for fees (Conservation Force II).
- Conservation Force (appellants) appealed the District Court's denial of attorneys fees to the United States Court of Appeals for the District of Columbia Circuit.
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Issue:
Does agency delay in processing discretionary permits constitute a 'violation' of the Endangered Species Act under 16 U.S.C. § 1540(g)(1)(A), thereby making a plaintiff eligible for attorney fees under the ESA's citizen-suit provision?
Opinions:
Majority - Circuit Judge Rogers
No, agency delay in processing discretionary permits does not constitute a 'violation' under 16 U.S.C. § 1540(g)(1)(A) that would make a plaintiff eligible for attorney fees under the ESA's citizen-suit provision. The court affirmed the district court's denial of fees by applying the Supreme Court's interpretation of ESA citizen-suit provisions from Bennett v. Spear. That case clarified that subsection (A) of § 1540(g)(1) is intended for enforcing substantive ESA provisions against regulated parties—private entities and government agencies—but not for judicial review of the Secretary's maladministration of the statute. Allowing claims for maladministration under subsection (A) would render subsection (C) (which specifically addresses the Secretary's failure to perform nondiscretionary duties under § 1533) superfluous and would effectively abrogate the Administrative Procedure Act's 'final agency action' requirement by allowing suits for any procedural default. The court found that the FWS's permit processing duties, while stating they "will process all applications as quickly as possible," explicitly noted that the FWS "cannot guarantee final action within the time limit you request." This language makes the timing of permit processing a discretionary duty. Therefore, the FWS's substantial and unexplained delay, while a procedural default, was not the type of 'violation' that Bennett v. Spear deemed actionable under § 1540(g)(1)(A), as it would not subject ESA administrators to criminal or monetary sanctions. The court rejected appellants' attempts to distinguish Bennett v. Spear, noting that its holding applied equally to the FWS acting as the Secretary's delegate.
Analysis:
This case significantly reinforces the boundaries established by Bennett v. Spear regarding citizen-suit provisions under the ESA. It clarifies that even egregious administrative delays by an agency like the FWS, absent a clear and nondiscretionary statutory deadline, do not constitute a 'violation' under § 1540(g)(1)(A) for which attorney fees can be sought. The decision underscores that this subsection is primarily for enforcing substantive environmental protection standards against regulated entities, not for challenging the Secretary's (or FWS's) discretionary administrative practices. This limits a potential avenue for litigants to compel agency action and recover litigation costs, particularly in instances of agency inefficiency or prolonged inaction concerning discretionary duties.
