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Biodiversity Legal Found. v. Badgley

Citation: 32 ELR 20539
No. No. 00-35076, -35089, 284 F.3d 1046/(9th Cir., 03/21/2002)

The court reverses a district court decision and holds that the U.S. Fish and Wildlife Service (FWS) does not have discretion under Endangered Species Act (ESA) §4 to make an initial determination to list a petitioned species beyond the ESA's 12-month deadline for making final determinations. The court first holds that the FWS' interpretation of ESA §4 is erroneous because it would render sections of the ESA inoperable. Under ESA §4(b)(3)(A), to the maximum extent practicable, the FWS has 90 days after a petition is filed to list a species within which to make an initial determination. ESA §4(b)(3)(B) provides that if the initial determination is positive, the FWS has one year from the date the petition was received to make a final determination. According to the FWS' interpretation of the statute, it has 90 days to the maximum extent practicable to make the initial listing determination under §4(b)(3)(A), but if it is not practicable to complete the determination within 90 days, the finding may be delayed indefinitely. However, this interpretation would render §4(b)(3)(B) inoperable. The only way to give effect to both deadline provisions is to apply the 12-month deadline to both initial and final determinations. The court also holds that the district court did not err in holding that it lacked discretion to grant injunctive relief that would have given the FWS more time to make a final determination. The ESA forecloses discretion when an agency misses ESA-imposed deadlines.

Counsel for Plaintiffs
Neal Levine
University of Denver School of Law
Foote Hall
7150 Montview Blvd., Denver CO 80220
(303) 871-6996

Counsel for Defendants
James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Rawlinson, J. Before Nelson and Graber, JJ.