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Forest Guardians v. Babbitt

ELR Citation: 29 ELR 20351
Nos. 97-2370, 164 F.3d 1261/47 ERC 1833/(10th Cir., 12/22/1998, 04/22/1999)

The court holds that the Secretary of the Interior violated the Endangered Species Act (ESA) by failing to designate critical habitat for the silvery minnow. The Secretary claimed that he could not complete the minnow's critical habitat designation due to fiscal limitations imposed by Congress. The court first holds that it has jurisdiction to reach the merits of environmental groups' appeal. Even though the groups failed to label their motion in the district court as one for injunction, it is clear from the content of the motion that they were seeking injunctive relief. Thus, the district court's order denying that motion was an interlocutory order expressly denying an injunction, and it fits squarely within the plain language of 28 U.S.C. §1292(a)(1). Alternatively, the court has jurisdiction because the district court's order had the practical effect of refusing the groups' injunction, and the consequences of denying the groups' motion and staying proceedings for over 14 months threatens serious, perhaps irreparable, consequences regarding the continued vitality of the silvery minnow.

The court next holds that the Secretary had a duty under the ESA to designate the silvery minnow's critical habitat by March 1, 1995, and that he has yet to fulfill that duty. The court then holds that because the Secretary unlawfully withheld agency action, the court is required by Administrative Procedure Act §706 to compel the Secretary to act. Adopting a "shall" means shall approach, the court rejects the Secretary's argument that the court could use its equitable discretion to permit his continued noncompliance with the ESA. Last, the court holds that it will not excuse the Secretary's failure to act on the basis of resource limitations and the impossibility of compliance due to the moratorium and insufficient monetary allocations since its expiration. After all the permissible delays and extensions, the ESA required the Secretary to publish a final critical habitat designation by March 1, 1995. This preceded any appropriations cutback or moratorium on spending. Moreover, the moratorium on funding activities essential for making critical habitat designations ended well over two years ago.

Counsel for Plaintiffs
Matt Kenna
Kenna & Hickcox
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

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

Before Porfilio and Kelly, JJ.