United States Court of Appeals, District of Columbia Circuit
Argued May 4, 2015
Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-02013).
Rafe Petersen argued the cause and filed the briefs for appellant.
Nicholas A. DiMascio, Attorney, U.S. Department of Justice, argued the cause for appellees.
With him on the brief were John C. Cruden, Assistant Attorney General, and Joan M. Pepin, Attorney.
Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges.
Brown, Circuit Judge
Four associations challenge consent decrees that require the U.S. Fish and Wildlife Service to determine, in accordance with a settlement-defined schedule for action, whether 251 species should be listed as endangered or threatened. Because the associations lack standing to raise their challenge, we affirm the district court's dismissal.
Under the Endangered Species Act (" ESA" or " Act" ), the public may petition the U.S. Fish and Wildlife Service (" Service" ) to list a particular species as endangered or threatened. The Service is required to determine, within twelve months, if listing is (1) not warranted, (2) warranted, or (3) warranted-but-precluded. 16 U.S.C. § 1533(b)(3)(B). A warranted-but-precluded determination allows the Service to defer action on a candidate species in order to focus agency resources on higher priority determinations. The Service must monitor precluded candidate species and annually revisit the determination. On revisiting, the Service may continue to identify the species as precluded. See id. § 1533(b)(3)(C).
" [T]he number of warranted-but-precluded findings has outpaced the number of listings, [and] the backlog of [precluded] candidate species had grown to 251 as of 2010." Nat'l Ass'n of Home Builders v. U.S. Fish & Wildlife Serv., 34 F.Supp.3d 50, 54 (D.D.C. 2014). Two environmental groups brought suits seeking " to compel the . . . [agency] to comply with deadlines set forth in the Endangered Species Act." In re Endangered Species Act Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972, 974, 403 U.S. App.D.C. 276 (D.C. Cir. 2013). Under the terms of subsequent settlements, the Service must meet strict deadlines for submitting either a warranted or not-warranted finding for all 251 candidate species. The Service maintains discretion regarding the substance of each listing determination.
Appellants, four membership associations involved in building and developing land, filed suit under the APA and the ESA's citizen-suit provision, 16 U.S.C. ...