June 30, 2008

Reconsideration denied in 5 year status review case

By Reconsideration denied in 5 year status review case

The D.C. District Court denied rehearing last week in American Forest Resource Council v. Hall, a case raising issues regarding the 5-year status review process under the ESA very similar to those raised in Coos County (see here). In American Forest, the court held that the Service’s 5-year status reviews are not final agency actions under the APA, and therefore cannot be challenged. 533 F. Supp. 2d 84, 93-94 (D.D.C. 2008). Interestingly, under D.C. Circuit law, the Bennett v. Spear requirements for finality are applied to ESA citizen suit actions, as well as pure APA actions, whereas under 9th Circuit law, the Bennett finality requirements do not apply to ESA citizen suit actions. (The 9th Circuit result seems correct when one considers that (1) Bennett dealt only with a pure APA action; it did not consider finality with respect to an ESA citizen suit action, and (2) the provision of the APA that imposes the "final agency action" hurdle to judicial review also expressly allows review of "agency action made reviewable by statute," thus implying that some agency actions that would not qualify as "final" may nevertheless be reviewable, e.g., actions subject to challenge under the ESA citizen suit provision).

The American Forest plaintiffs also argued for reviewability of status reviews on the basis of a settlement agreement between the Service and the plaintiffs which allegedly imposed additional legal obligations beyond the ESA’s 5-year review requirement. The court disagreed, and denied the motion. Presumably, an appeal is in the offing.

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