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National Ass'n of Home Builders v. Norton

ELR Citation: 35 ELR 20143
Nos. No. 04-5048, (D.C. Cir., 07/08/2005)

The court affirmed the dismissal of a home builder association's claims that the U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) in its promulgation of survey protocols to detect the endangered quino checkerspot butterfly in southern California. The association argued that the FWS violated the ESA's and APA's notice-and-comment provisions in promulgating the protocols. The protocols, however, do not constitute final agency action. Although they mark the consummation of the decisionmaking process, the protocols do not impose legal obligations. Thus, they are not subject to judicial review and the association's claims were properly dismissed for lack of jurisdiction.