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Building Indus. Ass'n of Superior Cal. v. Norton

ELR Citation: 31 ELR 20622
Nos. No. 00-5143, 247 F.3d 1241/(D.C. Cir., 05/08/2001) Aff'd

The court affirms a district court denial of summary judgment to a building industry association challenging the U.S. Fish and Wildlife Service's (FWS') listing of four species of fairy shrimp that live in vernal pools in California as endangered or threatened under the Endangered Species Act (ESA). The district court granted summary judgment to the FWS on all claims except the association's claim that the FWS failed to designate the shrimps' critical habitat. The association appealed but it was dismissed for lack of jurisdiction because, with the habitat designation on remand, the district court decision was not final. After the association received an amended judgment striking from their original complaint the habitat designation claim, they again appealed the district court's grant of summary judgment.

The court first holds that the dismissal of the habitat designation claim provided it with jurisdiction over the appeal. Although the original decision was not final, the dismissal of the only claim that survived that decision retroactively rendered the original decision final and appealable under the doctrine of cumulative finality. The court next holds that the FWS did not violate the Administrative Procedure Act (APA) by failing to seek comment on a study, which was released after the listing proposal and during the comment period, that they relied heavily upon in listing the shrimp. A final rule that is a logical outgrowth of the proposal does not require additional notice and comment if the rule relies on data submitted during the comment period. The study provided additional support for the proposal, but it did not modify the proposal's hypothesis. The court also holds that the FWS' measurement of shrimp populations solely in terms of groups of vernal pools called complexes did not violate the APA by failing to put the public on notice of the use of the complex methodology. The FWS' proposal discussed damage to the shrimp in terms of both individual pools and complexes, and, thus, the final rule's reliance solely on complexes was a logical outgrowth of the proposal. In addition, the court rejects the association's claim that the rule was not based on the best scientific and commercial data available due to methodological flaws in the study and other authorities the FWS relied on. Absent superior data, occasional imperfections do not violate ESA §4(b)(1)(A). Last, the court holds that the shrimps' listing is not invalid because the FWS failed to comply with its present peer review policy. The present policy came into force 22 months after the close of the comment period for the shrimp listing, and the listing did undergo peer review in accordance with the previous policy.

[A prior decision in this litigation is published at 29 ELR 20328.]

Counsel for Appellants
Robin L. Rivett
Pacific Legal Foundation
2151 River Plaza Dr., Ste. 305, Sacramento CA 95833
(916) 641-8888

Counsel for Appellees
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Silberman, J. Before Sentelle and Henderson, JJ.