Home » Case Summaries » 2002 » Biodiversity Legal Foundation v. Badgley


Biodiversity Legal Foundation v. Badgley



Editor’s Note: The Ninth Circuit withdrew its opinion, Biodiversity Legal Foundation v. Badgley, 284 F.3d 1046 (9th Cir. 2001) (summarized in
issue 32:3 of Environmental Law), and replaced it with the opinion summarized below.

Numerous individuals and environmental groups sued the Department of Interior (the Department) and the United States Fish and Wildlife Service (FWS) for failing to observe the statutory deadlines for responding to petitions to list various plant and animal species as threatened or endangered.[1] The district court first ruled against the environmental groups and in favor of the Department and FWS, finding that under the Endangered Species Act (ESA),[2] FWS had discretion to make the ninety-day substantial information findings past the twelve-month warranted/not warranted deadline.[3] Second, the district court denied FWS’s request for more time to make court-ordered warranted/not-warranted findings. The Ninth Circuit reversed the first district court decision as inconsistent with the statutory language, but affirmed the second because the district court lacked equitable discretion.

Before reaching the substantive merits of the case, the Ninth Circuit reviewed FWS’s assertion that the environmental groups lacked standing and that the appeal was moot. The Ninth Circuit held that the groups had standing, because they fulfilled the Article III[4] requirements[5] and the representational standing requirements.[6] In particular, the court found that the groups’ “desire to use, observe, and study” the plant and animal species was “undeniably a cognizable interest for the purposes of standing.”[7] Judge Graber dissented, distinguishing a Ninth Circuit case, Portland Audubon Society v. Endangered Species Commission,[8] that automatically allowed standing for an agency’s procedural violation when the party had participated in the process. In that case, the agency had not given fair consideration to the party’s presentations. However, Judge Graber argued that in the current case the environmental groups were challenging only the timing of the agency’s actions, not improper procedural error, and therefore had to prove every element of standing in their pleadings. The majority responded by noting that a failure “to comply with its governing statute is by definition a claim that ‘things were done improperly.'”[9]

With regard to mootness, FWS argued it had completed all of the listing determinations before the appeal. The groups had asked the district court to compel a listing determination and to grant declaratory relief requiring FWS to issue initial listing determinations within twelve months. The court found that this case fell into the “capable of repetition, yet evading review” exception established by the Supreme Court.[10] The first element of that exception determines if “the duration of the challenged action is too short to allow full litigation before it ceases.”[11] The court determined that this element had been fulfilled because the listing disputes were often too short to get judicial review and FWS often made its listing determinations after litigation began. The second element queries whether “there is a reasonable expectation that the plaintiffs will be subjected to [the same injury] again.”[12] Because of the environmental groups’ history of repeated litigation with FWS over the listing of species, the court found that they met the second element. Again, Judge Graber dissented, because it was not clear on the record or in the pleadings that the parties had repeatedly litigated the timing of FWS’s review of listing petitions.

On the merits of the case, the Ninth Circuit first reviewed the length of time that FWS had to make an initial, substantial information determination and then the final warranted/not warranted determination under the ESA.[13] The court read the initial determination as discretionary because it only required FWS to make the substantial information finding within 90 days “[t]o the maximum extent practicable.”[14] However, the court determined that this discretion had to be limited by the nondiscretionary twelve months that FWS had to complete its final decision on the listing.[15] Otherwise, congressional intent would be frustrated because the twelve-month deadline would be rendered meaningless if the initial determination could extend indefinitely. Therefore the court reversed the district court decision that allowed FWS to complete the initial determination in its own discretion.

Next, the court reviewed whether the district court erred in compelling FWS to complete the final, warranted/ not warranted determination on the species for which it had completed initial determinations. The court determined that FWS had not acted “in accordance with law” when it missed the twelve-month deadline.[16] Then the court forewent the usual balancing of equities in determining whether equitable relief was necessary. Instead it followed the rule that Congress intended to remove “the traditional discretion of courts in balancing the equities before awarding injunctive relief”[17] for an ESA violation. Thus, the Ninth Circuit affirmed that the district court was compelled to grant injunctive relief.


[1] 16 U.S.C. § 1533 (2000) (defining statutory deadlines for responding to petitions to list endangered and threatened species).

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2002).

[3] Id. § 1533(b)(3)(A)-(B).

[4] U.S. Const. art. III.

[5] See Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2000) (setting out the concrete injury, causation, and redressability elements).

[6] See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (9th Cir. 1996) (holding that an organization must have a member that has Article III standing, organizational purposes that are aligned with the lawsuit, and a claim and requested relief that do not require the member’s participation).

[7] Biodiversity Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir. 2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)).

[8] 984 F.2d 1534, 1537 (9th Cir. 1993).

[9] Biodiversity Legal Found., 309 F.3d at 1172 (citing the dissent at 1179).

[10] S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911).

[11] Greenpeace Action v. Franklin, 14 F.3d 1342, 1329 (9th Cir. 1993).

[12] Id.

[13] 16 U.S.C. § 1533(b)(3)(A)-(B) (2000).

[14] Id. § 1533(b)(3)(A).

[15] Id. § 1533(b)(3)(B).

[16] 5 U.S.C. § 706 (2000).

[17] Biodiversity Legal Found., 309 F.3d at 1177 (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)).

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