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Center for Biological Diversity v. Lohn

ELR Citation: 38 ELR 20001
Nos. No. 05-35638, (9th Cir., 12/27/2007)

The Ninth Circuit vacated as moot a dispute concerning the federal government's policy for listing killer whales under the Endangered Species Act. An environmental group filed suit after the National Oceanic and Atmospheric Administration (NOAA)-Fisheries denied its petition to list the Southern Resident killer whale as an endangered species. The agency relied on its distinct population segment policy in making its decision. The lower court set aside the agency's "not warranted" finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was "significant" under the policy. But it also ruled that the policy was not contrary to congressional intent and that it was a reasonable interpretation of the ambiguous term "distinct population segment." The group then appealed that portion of the district court's judgment, arguing that NOAA-Fisheries' distinct population segment policy is not entitled to deference. But the agency has since issued a final rule listing the killer whale as an endangered species. The group's appeal, therefore, is moot.