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Friends of Animals v. Ross

ELR Citation: 49 ELR 20141
Nos. No. 16-cv-1540 (DLF), (D.D.C., 08/26/2019) (Friedrich, J.)

A district court vacated NMFS' 2014 decision not to list the queen conch, a marine mollusk that inhabits the Caribbean Sea and Gulf of Mexico, as endangered or threatened under the ESA. Environmental groups argued the decision should be vacated because NMFS applied a now-vacated agency policy to determine that the mollusk was not endangered or threatened through a "significant portion of its range." NMFS did not dispute that it erred in relying on that policy, but claimed the error was harmless because an alternative rationale supported the decision not to list. The court rejected the agency's alternative rationale because NMFS offered it as a justification after the fact. The court can only review agency actions at the time the agency acted, which was in reliance on the outdated policy, and it disagreed that this error was harmless. It therefore vacated the listing decision and remanded to NMFS for further proceedings.