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D.C. Circuit Gets Hunters' Goat in Endangered Species Case

What do you get when you cross a bunch of goat hunters with the Fish and Wildlife Service (FWS)? Apparently, a bunch of very speculative appeals.

In an unlikely team-up, hunters and conservationists had sued the FWS, officially through the Secretary of the Interior, for blatantly ignoring their applications to have the markhor, a goat that inhabits a hilly area of Pakistan, downgraded from an "endangered" to a "threatened" species.

The D.C. Circuit couldn't sit back and feed the appellants a tin can, so the court took a different approach.

Goat Jokes and Agency Delay

Chief Judge Merrick Garland took the time to open the court's opinion in Conservation Force v. Jewell with a "joke," which at best is a very nerdy play on words.

Noting the appellants' claim under the Administrative Procedure Act that the FWS was "capricious" in its delay, you can almost hear Judge Garland titter as he footnotes that "capricious" is related to the Italian musical term which refers to a carefree, fantastic style like the skipping of a goat -- see capra in Italian, meaning "goat."

Can't really pin that one on a clerk.

High-level word play aside, the petitioners were champing at the bit to sue to FWS for sitting on endangered species re-evaluation, which had already surpassed the one-year deadline under which the agency must release a finding.

And if the D.C. Circuit had reached the merits of the case, they probably would have agreed, having just scolded the Nuclear Regulatory Commission earlier in August for also refusing a statutory mandate to review an application.

But there was a bit of a procedural issue...

Moot, No Standing, and Not Ripe

Possibly achieving the trifecta of reasons for an Article III court not to hear a case, the D.C. Circuit determined that not only was the appellants' case moot, but the organizations lacked standing to appeal and the issue wasn't ripe.

A large part of the problem was that the FWS had -- even though it was late -- approved the downgrade of the markhor to "threatened" in 2012, rendering complaints about the agency's delay moot, as the relief sought had already been obtained.

Even under an argument that the FWS' pattern of delay presented a future danger requiring declaratory judgment, the court noted that the case was too speculative to warrant relief.

Bottom Line

Agency delay is frustrating and the D.C. Circuit doesn't like it either. But you need to present a case with standing and cognizable relief, or else the court can't simply take action to slap the agency's wrist.

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