San Francisco Baykeeper v. United States Fish And Wildlife Service

Background

San Francisco Baykeeper challenged the U.S. Fish and Wildlife Service’s failure to meet deadlines under Section 4 of the Endangered Species Act. The case concerns the proposed listing of the longfin smelt DPS as an endangered species. The Service published a proposed listing rule on October 7, 2022, and concluded that listing was warranted. The statutory deadline for the final listing determination was October 7, 2023, but the Service had not issued that determination by the time of the lawsuit.

Baykeeper asserted two claims: first, that the Service failed to publish a timely final listing determination; and second, that the Service failed to publish a timely critical-habitat determination. Baykeeper moved for summary judgment and asked the court to require the final listing determination within fourteen days.

Legal framework

The Endangered Species Act requires the Service, after proposing a listing, to take one of several actions within one year: publish a final regulation, withdraw the proposed regulation with an explanation, or extend the period for an additional six months. The Act also generally requires the Service to designate critical habitat at the same time as the final listing determination, unless a special circumstance applies. If critical habitat is not determinable at the time of listing, the Service may postpone the designation for one year.

The court reviewed the Service’s actions under the Administrative Procedure Act because the Endangered Species Act does not provide an independent review standard. The court explained that a reviewing court must require an agency to act when the agency has unlawfully withheld or unreasonably delayed a required action.

Court’s analysis

The parties did not dispute that the Service missed the October 7, 2023 deadline for the final listing determination. The court therefore granted Baykeeper summary judgment on claim one. The court considered the Service’s evidence about the work remaining at regional and headquarters levels, including the review of more than one thousand substantive comments, competing court-ordered deadlines, staffing limits, and the need to evaluate technical and scientific issues.

Although Baykeeper requested a fourteen-day deadline, the court ordered the Service to complete the final listing determination by July 24, 2024. The court also denied Baykeeper’s request to make the final listing rule effective immediately, citing the general thirty-day period between publication and effectiveness for final rules.

The court denied summary judgment on claim two because the critical-habitat issue was premature. The court stated that critical habitat generally must be designated concurrently with the final listing determination, subject to the statutory and regulatory exceptions. At the hearing, however, the government agreed that, if listing was warranted and critical habitat was not designated concurrently, the Service would complete the designation by December 11, 2024. The court memorialized that agreement.

Disposition

The court granted the plaintiff summary judgment on claim one, denied summary judgment on claim two, ordered the defendants to complete the final listing determination by July 24, 2024, and recorded the government’s agreement to complete the critical-habitat designation by December 11, 2024, if the stated conditions apply. The court said the order seemingly resolved the entire case and directed the parties to file a proposed judgment or a statement about the next procedural steps by April 11, 2024.