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Friends of Animals v. Ashe

ELR Citation: 46 ELR 20003
Nos. 14-5172, (D.C. Cir., 12/22/2015)

The D.C. Circuit dismissed a conservation group's lawsuit against FWS for failing to make a timely determination on their petition to list certain species of sturgeon as endangered or threatened under the ESA. Upon the filing of a listing petition, FWS must make an initial determination within 90 days, to the maximum extent practicable. If that initial determination is positive, FWS must make a final determination within 12 months from the date of the petition filing. The 12-month deadline has no exceptions and, importantly, is measured from the date of the petition filing, not from the date of FWS' initial determination. In this case, FWS went more than 12 months without making any determinations—initial or final—on the group's petition. The group therefore filed suit, but it failed to comply with the ESA's 60-day notice requirement. The group provided 60 days' notice of allegedly overdue final determinations before FWS had issued any positive initial determinations. Without positive initial determinations, FWS' obligations to make final determinations had not been triggered at the time that the group provided notice. Under the ESA, the group must first provide notice about FWS' failure to make an initial determination; then, after 60 days have passed, the group may sue to compel the initial determination. If and when FWS issues a positive initial determination, the group must provide a new notice to FWS; then, after another 60 days have passed, the group may sue again to compel the final determination. This process may not be the most efficient, but the ESA compels it.