American Bird Conservancy v. Kempthorne, No. 07-4609 (March 11, 2009)
BACKGROUND: In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (“FWS”) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency. FWS formally responded to the petition when, on September 12, 2006, it published its Candidate Notice of Review in the Federal Register. See Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 71 Fed. Reg. 53,756(Sept. 12, 2006) (to be codified at 50 C.F.R. pt. 17). The CNOR concluded that the threats, in particular the modification of habitat through harvesting of horseshoe crabs to such an extent that it puts the viability of the knot at substantial risk, are of a high magnitude, but are nonimminent because of reductions and restrictions on harvesting horseshoe crabs. Id. at 53,759. Accordingly, the FWS designated the listing of the red knot as warranted but precluded pursuant to 16 U.S.C. § 1533(b)(3)(B)(iii), and assigned the species a priority level of 6 on a scale of 1 to 12 (1 being the highest priority). Id. Appellants persisted with their challenge to the denial of emergency rulemaking, an agency decision upheld by the District Court in New Jersey. See ESA blawg.
EXCERPT: The mootness doctrine derives from Article III of the Constitution, which limits the “judicial Power” of the United States to the adjudication of “Cases” or “Controversies.” U.S. Const. art. III, § 2; see Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007). “The central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003).
The only issue remaining in the complaint ... was the propriety of the FWS’s determination that an emergency listing of the red knot was not warranted. In the subsequent publication of the CNOR, however, the FWS concluded, after careful study and consideration of all possible factors, that listing of the red knot was, in fact, warranted but precluded by other listing priorities. Because appellants never sought to amend their complaint to contest in any way that conclusion, there is no issue for us to decide and no “meaningful relief” to award. Appellants would have us reach back from the CNOR and declare the FWS’s denial of emergency rulemaking violative of the ESA based on the FWS’s consideration of what appellants allege to be improper factors. We will not do so. Instructive in this regard is Fund for Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005), in which the D.C. Circuit observed that “this sequence of events is analogous to the merger of a preliminary injunction into a permanent injunction, upon which ‘an appeal from the grant of the preliminary injunction becomes moot.’” 428 F.3d at 1064 (quoting Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999)) (second alteration in original); see also Save Our Springs Alliance v. Norton, 361 F. Supp. 2d 643, 648 (W.D. Tex. 2005).
Red knot and horseshoe crab photo by William Dalton (c) (all rights reserved) from flickr. Mr. Dalton also publishes a webpage at www.daltonphotos.com The red knot (Calidris canutus rufa) is a medium-sized shorebird that undertakes an annual 30,000-kilometer migration from its wintering grounds in Patagonia and Tierra del Fuego to its breeding grounds in the high Arctic. Red knots begin their northern migration in February, and stop over in the Delaware Bay between late April and early June, coinciding with the spawning season of horseshoe crabs. There, the birds feed on horseshoe crab eggs in order to refuel for the final leg of their journey to the Arctic. Surveys of the Delaware Bay region during recent spring migration seasons indicate a substantial decline in the red knot population. It is believed that the reduction in numbers is in large part attributable to the overharvesting of horseshoe crabs for commercial purposes. Because of the corresponding drop in the quantity of horseshoe crab eggs, red knots have failed to attain the critical weight necessary to fly to their breeding grounds and survive an initial few days of Arctic snow cover. See prior musing in ESA blawg and information from New Jersey Division of Fish & Wildlife and Citizens United to Protect the Maurice River