1. Case Studies and the ESA
Controversial historical case studies relating to the Endangered Species Act

2. Important Case Studies
Tennessee Valley Authority v. Hill (1978)
Robertson v. Methow Valley Citizens Council(1989)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Robertson v. Seattle Audubon Society (1992)
Babbitt v. Sweet Home (1995)
Wyoming Farm Bureau Federation v. Babbitt (2000)
Sierra Club v. U. S. Fish and Wildlife Service (2001)
Spirit of the Sage Council v. Norton (2003)
National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007)

3. Tennessee Valley Authority v. Hill (1978)
Tellico Dam on Little Tennessee River could not be completed by the Tennessee Valley Authority because it would extirpate snail darter population
Dam on Little Tennessee River
Snail Darter
Environmental groups brought action under the Endangered Species Act against the Tennessee Valley Authority to prevent them from completing a dam and impoundment on the Little Tennessee River, as completion of the dam would destroy the critical habitat of the snail darter, a small endangered fish. Although the dam was already near completion, it was ruled that it not be completed. Despite this ruling, congressional appropriations committees continued to appropriate large sums of money for the dam, which was eventually finished anyway. Fish were relocated.
“The Endangered Species Act of 1973 (Act) authorizes the Secretary of the Interior (Secretary) in § 4 to declare a species of life "endangered." Section 7 specifies that all
"Federal departments and agencies shall, with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of [the] Act by carrying out programs for the conservation of endangered species and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary to be critical."
Shortly after the Act's passage, the Secretary was petitioned to list a small fish popularly known as the snail darter as an endangered species under the Act. Thereafter, the Secretary made the designation. Having determined that the snail darter apparently lives only in that portion of the Little Tennessee River that would be completely inundated by the impoundment of the reservoir created as a consequence of the completion of the Tellico Dam, he declared that area as the snail darter's "critical habitat." Notwithstanding the near completion of the multimillion dollar dam, the Secretary issued a regulation in which it was declared that, pursuant to § 7,
"all Federal agencies must take such action as is necessary to ensure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area."
Respondents brought this suit to enjoin completion of the dam and impoundment of the reservoir, claiming that those actions would violate the Act by causing the snail darter's extinction. The District Court, after trial, denied relief and dismissed the complaint. Though finding that the impoundment of the reservoir would probably jeopardize the snail darter's continued existence, the court noted that Congress, though fully aware of the snail darter problem, had continued Tellico's appropriations, and concluded that,
"[a]t some point in time, a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result "
The Court of Appeals reversed. and
Page 437 U. S. 154
ordered the, District Court permanently to enjoin completion of the project
"until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail darter has been deleted from the list of endangered species or its critical habitat materially redefined."
The court held that the record revealed a prima facie violation of § 7 in that the Tennessee Valley Authority had failed to take necessary action to avoid jeopardizing the snail darter's critical habitat by its "actions." The court thus rejected the contention that the word "actions," as used in § 7, was not intended by Congress to encompass the terminal phases of ongoing projects. At various times before, during, and after the foregoing judicial proceedings, TVA represented to congressional Appropriations Committees that the Act did not prohibit completion of the Tellico Project. and described its efforts to transplant the snail darter. The Committees consistently recommended appropriations for the dam, sometimes stating their views that the Act did not prohibit completion of the dam at its advanced stage, and Congress each time approved TVA's general budget, which contained funds for the dam's continued construction.”
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4. Summary and Significance
Three inch fish slowed construction of $116 million dam
Initial cost of dam was poorly estimated at $10 million
Snail darter relocated
Injunction obtained under the National Environmental Policy Act
Set a precedent for further cases. Protecting critical habitat of species is a top priority in order to prevent harm
(6-3) Vote for Hill

5. Robertson v. Methow Valley Citizens Council(1989)
Methow Recreation, Inc. attempts to build ski resort in Okanango Ntl Forest contested by local citizens due to inadequate EIS.
Okanango National Forest
Mule Deer Herd
“The Forest Service is authorized by statute to manage national forests for, inter alia, recreational purposes. Because its decision to issue a recreational special use permit is a "major Federal action" within the meaning of the National Environmental Policy Act of 1969 (NEPA), that decision must be preceded by the preparation of an Environmental Impact Statement (EIS). After a Service study designated a particular national forest location as having a high potential for development as a major downhill ski resort, Methow Recreation, Inc. (MRI), applied for a special use permit to develop and operate such a resort on that site and on adjacent private land MRI had acquired. In cooperation with state and local officials, the Service prepared an EIS (the Study), which, among other things, considered the effects of various levels of development on wildlife and air quality both on-site and -- as required by Council on Environmental Quality (CEQ) regulations -- off-site, and outlined steps that might be taken to mitigate adverse effects, indicating that these proposed steps were merely conceptual, and would "be made more specific as part of the design and implementation stages of the planning process." The Study's proposed options regarding off-site mitigation measures were primarily directed to steps that might be taken by state and local governments. After the Regional Forester decided to issue a permit as recommended by the Study, respondents appealed to the Chief of the Forest Service, who affirmed. Respondents then brought suit to review the Service's decision, claiming that the Study did not satisfy NEPA's requirements. The District Court's Magistrate filed an opinion concluding that the Study was adequate, but the Court of Appeals reversed, concluding that the Study was inadequate as a matter of law on the grounds, inter alia, that NEPA imposes a substantive duty on agencies to take action to mitigate the adverse effects of major federal actions, which entails the further duty to include in every EIS a detailed explanation of specific actions that will be employed to mitigate the adverse impact; that if the Service had difficulty obtaining adequate information to make a reasoned assessment of the project's environmental impact, it had an obligation to make a "worst
Page 490 U. S. 333
case analysis" on the basis of available information, using reasonable projections of the worst possible consequences; and that the Service's failure to develop a complete mitigation plan violated its own regulations.
Held:
1. NEPA does not impose a substantive duty on agencies to mitigate adverse environmental effects or to include in each EIS a fully developed mitigation plan. Although the EIS requirement and NEPA's other "action-forcing" procedures implement that statute's sweeping policy goals by ensuring that agencies will take a "hard look" at environmental consequences and by guaranteeing broad public dissemination of relevant information, it is well settled that NEPA itself does not impose substantive duties mandating particular results, but simply prescribes the necessary process for preventing uninformed -- rather than unwise -- agency action. While a reasonably complete discussion of possible mitigation measures is an important ingredient of an EIS, and its omission therefrom would undermine NEPA's "action-forcing" function, there is a fundamental distinction between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated and a substantive requirement that a complete mitigation plan be actually formulated and adopted. Here, since the off-site environmental effects of the project cannot be mitigated unless the nonfederal government agencies having jurisdiction over the off-site area take appropriate action, it would be incongruous to conclude that the Service has no power to act until the local agencies have finally determined what mitigation measures are necessary. More significantly, it would be inconsistent with NEPA's reliance on procedural mechanisms -- as opposed to substantive, result-based standards -- to demand the presence of a fully developed mitigation plan before the agency can act. Pp. 490 U. S
2. NEPA does not impose a duty on an agency to make a "worst case analysis" in its EIS if it cannot make a reasoned assessment of a proposed project's environmental impact. Although prior CEQ regulations requiring such an analysis may well have expressed a permissible interpretation of NEPA, those regulations have since been amended to replace the worst case requirement with new requirements, and the Act itself does not mandate that uncertainty in predicting environmental harms be addressed exclusively by a worst case analysis. The Court of Appeals erred in concluding that the worst case regulation was a codification of prior NEPA case law, which, in fact, merely required agencies to describe environmental impacts even in the face of substantial uncertainty. Moreover, the new CEQ regulations -- which require that agencies, in the face of unavailable information concerning a reasonably foreseeable
Page 490 U. S. 334
significant environmental consequence, prepare a summary of existing relevant and credible scientific evidence and an evaluation of adverse impacts based on generally accepted scientific approaches or research methods -- is entitled to substantial deference even though the worst case rule was in some respects more demanding, since there was good reason for the change in light of the substantial criticism to which the old regulation was subjected, and since the amendment was designed to better serve the EIS' "hard look" and public disclosure functions in preference to distorting the decisionmaking process by overemphasizing highly speculative harms. Pp. 490 U. S
3. The Court of Appeals erred in concluding that the Service's failure to develop a complete mitigation plan violated its own regulations, which require, inter alia, that "[e]ach special use authorization contain [t]erms and conditions which will minimize damage to the environment." Since the Study made clear that on-site effects of the proposed development will be minimal and easily mitigated, its recommended ameliorative steps cannot be deemed overly vague or underdeveloped. Moreover, although NEPA and CEQ regulations require detailed analysis of off-site mitigation measures, there is no basis to conclude that the Service's own regulations must also be read in all cases to condition permit issuance on consideration (and implementation) of such measures. The Service's regulations were promulgated pursuant to its broad statutory authorization to allow recreational use of national forests, and were not based on NEPA's more direct concern for environmental quality. As is clear from the text of the permit issued to MRI, the Service has decided to implement its mitigation regulations by imposing appropriate controls over MRI's actual development and operation during the permit's term. It was not unreasonable for the Service to have construed those regulations as not extending to off-site mitigation efforts that might be taken by state and local authorities, and that interpretation is controlling. Pp. 490 U. S
833 F.2d 810, reversed and remanded.”
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6. Summary and Significance
Potential damage to migratory mule deer herd and spotted owl habitat
Forest Service issued “Special Use Permit” for ski resort
Efforts to build ski resort continued for a few years after case, ultimately abandoned
“Worse case analysis” not required in Environmental Impact Statement
Forest Service did not violate its own regulations, did not fall under National Environmental Policy Act
(9-0) vote for Robertson

7. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Environmental organizations lack authority to challenge regulations issued by the U.S. Secretaries of the Interior and Commerce V.
“Facts of the Case: 
The Endangered Species Act of 1973 (S7(a)(2)) required federal agencies to consult with the Secretary of the Interior to ensure that any authorized actions did not jeopardize endangered or threatened species or critically destroy natural habitats. A 1986 amendment to the act limited its scope to actions in the United States or on the high seas. Defenders of Wildlife and other organizations dedicated to wildlife conservation filed an action seeking a declaratory judgment that the new amendment erred by providing for a geographic limit on the original law.
Question: 
Do the respondents have standing to sue?
Conclusion: 
No. Even if the Court were to assume that the agency-funded projects at issue threatened listed species, there was no proof that these actions would produce "actual or imminent" injuries to particular respondents who might some day wish to visit the foreign countries in question. The Court disregarded the proposed theory of "ecosystem nexus" which claimed that any person who used any part of of a "contiguous ecosystem" adversed affected by a funded activity had standing to sue.”
- The Oyez Project, Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992) available at: (

8. Summary and Significance
1986 amendment limited ESA to United States and high seas
Defenders of Wildlife wanted declaratory judgment, thought amendment erred by placing geographic limit on original law
Defenders of Wildlife do not have standing to sue the Secretary of Interior or Commerce
Theory of “ecosystem nexus” disregarded
(6-3) Vote for Lujan

9. Robertson v. Seattle Audubon Society (1992)
The Seattle Audubon Society filed a lawsuit challenging proposed timber harvesting in National Forests. Timber industry concerned about impacts on local economy.
Forest in Pacific Northwest
Spotted Owl
“This case arises out of two challenges to the Federal Government's continuing efforts to allow the harvesting and sale of timber from old growth forests in the Pacific Northwest. These forests are home to the northern spotted owl, a bird listed as threatened under the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (1988 ed. and Supp. II), since June See 55 Fed. Reg Harvesting the forests, say environmentalists, would kill the owls. Restrictions on harvesting, respond local timber industries, would devastate the region's economy.
Petitioner Robertson is Chief of the United States Forest Service, which manages 13 national forests in Oregon and Washington known to contain the northern spotted owl. In 1988, the Service amended its regional guide to prohibit timber harvesting on certain designated areas within those forests. Respondent Seattle Audubon Society (joined by various other environmental groups) and the Washington Contract Loggers Association (joined by various otherindustry groups) filed separate lawsuits in the District Court for the Western District of Washington, complaining respectively that the amendment afforded the owl either too little protection, or too much. Seattle Audubon alleged violations of three federal statutes: the Migratory Bird Treaty Act (MBTA), 40 Stat. 755, ch. 28, as amended, 16 U.S.C. § 703 et seq. (1988 ed. and Supp. II); the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, as amended, 42 U.S.C. § 4321 et seq.; and the National Forest Management Act of 1976 (NFMA), 90 Stat. 2949, as amended, 16 U.S.C. § 1600 et seq. The District Court consolidated the actions and preliminarily enjoined 163 proposed timber sales. Seattle Audubon Soc. v. Robertson, No (WD Wash., Mar. 24, 1989).”
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10. Summary and Significance
Thirteen National Forests in Oregon and Washington contain northern spotted owls
Harvesting previously restricted or allowed in designated areas due to Northwest Timber Compromise [Department of the Interior and Related Agencies Appropriations Act,1990]
No timber sales shall occur in the 110 areas previously identified
Management of other areas will not be subject to judicial review

11. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995)
Sweet Home wanted to modify habitat of the Palila bird, red cockaded woodpecker and spotted owl, controversy over whether modifying the habitat of the birds could be considered “harm” under the ESA.
Red cockaded woodpecker
Bruce Babbitt
Palila bird
“Facts of the Case: 
The Endangered Species Act requires that no person "take" an endangered or threatened species. The Act defines take as "harass, harm, pursue," "wound," or "kill." The Secretary of the Interior further characterizes "harm" as including "significant habitat modification or degradation where it actually kills or injures wildlife." Several persons within forestry industries sued the Secretary, asserting that Congress did not intend for the regulation to include changes in habitat. The District Court found for the Secretary of the Interior.
The Court of Appeals reversed on the basis of noscitur a sociis, which means that the meaning of words is determined by the words around it. Thus, "harm" could only include actions applying direct force to the animal.
Question: 
Does the definition of "harm" as an expansion of the word "take" in the Endangered Species Act include habitat modification that kills or injures wildlife?
Conclusion: 
Yes. In a 6-3 decision written by Justice John Paul Stevens, the Supreme Court held that habitat modification is a legitimate application of the word "harm." First, the Court found that the Court of Appeals was incorrect in assuming that the words in the definition of "take" only apply to actions involving direct contact with endangered animals. Then, based on the Act itself, the Court determined that the ordinary meaning of harm would in fact include changes in habitat that hurt the endangered animals. Also, the Court held that the intent of the Act to give broad protection to endangered species must include even actions that may have minimal or unforeseeable effects.”
The Oyez Project, Babbitt, Secretary Of Interior v. Sweet Home Chapter Of Communities For A Great Oregon , 515 U.S. 687 (1995) available at: (
“Respondents in this action are small landowners, logging companies, and families dependent on the forest products industries in the Pacific Northwest and in the Southeast, and organizations that represent their interests. They brought this declaratory judgment action against petitioners, the Secretary of the Interior and the Director of the Fish and Wildlife Service, in the United States District Court for the District of Columbia to challenge the statutory validity of the Secretary's regulation defining "harm," particularly the inclusion of habitat modification and degradation in the definition. [n.3] Respondents challenged the regulation on its face. Their complaint alleged that application of the "harm" regulation to the red cockaded woodpecker, an endangered species, [n.4] and the northern spotted owl, a threatened species, [n.5] had injured them economically. App
Respondents advanced three arguments to support their submission that Congress did not intend the word "take" in §9 to include habitat modification, as the Secretary's "harm" regulation provides. First, they correctly noted that language in the Senate's original version of the ESA would have defined "take" to include "destruction, modification, or curtailment of [the] habitat or range" of fish or wildlife, [n.6] but the Senate deleted that language from the bill before enacting it. Second, respondents argued that Congress intended the Act's express authorization for the Federal Government to buy private land in order to prevent habitat degradation in §5 to be the exclusive check against habitat modification on private property. Third, because the Senate added the term "harm" to the definition of "take" in a floor amendment without debate, respondents argued that the court should not interpret the term so expansively as to include habitat modification.”
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12. Summary and Significance
Supreme Court voted that habitat modification could be considered “harm” under the ESA.
Changes in habitat could harm the species, “harm” does not just include direct force to the bird
Continue of logging economy vs. bird habitat debate
Private property issue
(6-3) vote for Babbitt

13. Wyoming Farm Bureau Federation v. Babbitt (2000)
Decision to reintroduce gray wolves into Yellowstone as experimental population upheld
Northern Rocky Mountain Gray Wolves
Yellowstone National Park
“These consolidated appeals stem from three separate challenges to the Department of Interior's ("Department") final rules governing the reintroduction of a nonessential experimental population of gray wolves in Yellowstone National Park ("Yellowstone") and central Idaho. The district court consolidated the challenges and struck down the wolf reintroduction rules, concluding they (1) are contrary to Congress' clear intent under section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), to prevent lessening the protection afforded to naturally occurring, individual members of the same species; (2) are contrary to the Department's own regulations extending Endangered Species Act protections to all individual animals within an area where experimental and nonexperimental populations may overlap; and (3) conflict with section 4 of the Endangered Species Act, 16 U.S.C. 1533, by operating as a de facto "delisting" of naturally occurring wolves. Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349, (D. Wyo. 1997). The district court ordered the reintroduced non-native wolves and their offspring removed from the identified experimental population areas, but stayed its own judgment pending this appeal. Id. at Discerning no conflict between the challenged experimental population rules and the Endangered Species Act, we reverse the district court's order and judgment.
I. Background
A. Factual Summary
9 Detailed facts underlying this appeal are set forth in Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp (D. Wyo. 1997); hence, we provide only a summary of salient facts.
10 The Secretary of Interior ("Secretary") listed the Northern Rocky Mountain Wolf, an alleged subspecies of the gray wolf, as an endangered species under the Endangered Species Act of Fed. Reg (March 9, 1978) ("Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota"). In 1978, the Secretary listed the entire gray wolf species as endangered in the lower forty-eight states, except Minnesota.1 Id. at 9610, In 1980, a team organized by the Department of Interior completed its Northern Rocky Mountain Wolf Recovery Plan ("Recovery Plan"), pursuant to the Endangered Species Act. The Department updated the Recovery Plan in 1987 to recommend the introduction of at least ten breeding pairs of wolves for three consecutive years in each of three identified recovery areas (Yellowstone National Park, central Idaho and northwestern Montana).
11 Based on the 1987 recommendation, and at Congress' direction, the Fish and Wildlife Service, in cooperation with the National Park Service and the United States Forest Service ("Forest Service"), prepared an environmental impact statement in accordance with the National Environmental Policy Act, 43 U.S.C. 4332(2)(C). The final environmental impact statement analyzed the environmental effects of five wolf recovery alternatives. The proposed action alternative the Fish and Wildlife Service adopted called for the annual reintroduction of fifteen wolves in two nonessential experimental population areas Yellowstone National Park and central Idaho beginning in Section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), expressly authorizes the establishment of such nonessential experimental populations.
12 In June 1994, Secretary Bruce Babbitt adopted the proposed action alternative subject to certain conditions intended to "minimize or avoid the environmental impacts and public concerns identified during the environmental review process." One condition was the promulgation of nonessential experimental population rules to implement a wolf management program under section 10(j). The Department published its final experimental population rules in November Fed. Reg (Nov. 22, 1994). The Recovery Plan and final rules prescribe the release of wolves from Canada into designated areas of Yellowstone and central Idaho over a three- to five-year period, id. at , 60266, 60269, notwithstanding the Department's acknowledgment (1) a colony of naturally occurring wolves exists in Montana which, as the number of wolves increases, eventually will recolonize areas of Yellowstone and Idaho; and (2) lone wolves have been confirmed to exist in or near the designated experimental population areas in Yellowstone and Idaho. The final experimental population rules expressly authorize persons coming into contact with wolves to take actions otherwise prohibited under the Endangered Species Act. For example, a livestock producer can "take" any wolf caught in the act of killing, wounding or biting livestock on his land so long as the incident is reported within twenty-four hours. Id. at 60264, The rules also provide a framework within which the Fish and Wildlife Service can manage "problem" wolves. Id. at 60265, ”
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14. Summary and Significance
Allows landowners to “take” wolves caught in the act of killing, wounding or biting livestock. Incident must be reported within 24 hours
Non native wolves removed from experimental populations areas
Fifteen wolves introduced annually
Nonessential experimental populations authorized in Yellowstone

15. Sierra Club v. U. S. Fish and Wildlife Service (2001)
USFWS refusal to designate critical habitat for gulf sturgeon populations was found arbitrary and capricious.
Gulf Sturgeon
“This case requires us to assess the validity of agency action under the Endangered Species Act (ESA).1 Appellant challenges the refusal of the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to designate "critical habitat" for the Gulf sturgeon. Appellant contends that this decision relied on an invalid regulation and is therefore arbitrary and capricious. We agree and now reverse.
2 * The Gulf sturgeon is a large, wide-ranging fish that can reach up to fifty years of age and five-hundred pounds in size. The sturgeon is one of the few anadromous species in the Gulf of Mexico, migrating between fresh and salt water. The sturgeon spends spring and summer in the Gulf Coast rivers from Louisiana to Florida.2 In the winter months, the sturgeon returns to the waters of the Gulf of Mexico to feed. Although the sturgeon once supported a major commercial fishery, habitat destruction and overfishing conspired to bring about a population collapse.3 This alarming decrease in population led to the sturgeon's listing as a threatened species in
3 The listing of the sturgeon as a threatened species triggered the "critical habitat" provisions of the ESA. The ESA requires the Secretary of the Interior to "designate any habitat of such species which is then considered to be critical habitat" concurrently with the listing of the threatened species, unless a statutory exception applies.5 Although the Secretary invoked two one-year statutory extensions from the listing date,6 no critical habitat was designated for the sturgeon by the deadline.7”
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16. Summary and Significance
Sierra took action against the Fish and Wildlife Service for refusing to designate critical habitat for the Gulf Sturgeon
The sturgeon is a fish in the Gulf of Mexico that migrates between fresh and salt water
Two one year statutory extensions given to USFWS to designate habitat, extensions not met
Critical habitat for sturgeon dedicated in 2003

17. Spirit of the Sage Council v. Norton (2003)
Permit revocation rule invalid, “No Surprises” rule procedurally invalid, safe harbor agreements revised V.
“The Spirit of the Sage Council, et al., sued the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), challenging the Services' jointly-issued "No Surprises Rule" on both substantive and procedural grounds. When the FWS subsequently promulgated the closely related "Permit Revocation Rule," the Council amended its complaint to contest that Rule as well.
2 In the orders under review, the district court held the FWS had not provided an adequate opportunity for the public to comment upon the Permit Revocation Rule, as required by the Administrative Procedure Act, 5 U.S.C. § 553. Although the district court did not reach the merits of the Council's challenge to the No Surprises Rule, the court held that Rule was "sufficiently intertwined with the [Permit Revocation Rule] that it must also be remanded to the agency for consideration as a whole." Spirit of the Sage Council, et al. v. Norton, 294 F.Supp.2d 67, 91 (2003). The district court further ordered the FWS and the NMFS to complete the proceedings on remand within one year and enjoined the Services from applying the No Surprises Rule in the meantime.
3 On appeal the Services do not contest the district court's conclusion that the Permit Revocation Rule was procedurally defective. Rather, they argue the interim suspension of the No Surprises Rule and the one-year deadline for repromulgation of the Permit Revocation Rule exceeded the court's authority under the APA.
4 The Council contends these appeals are moot because the Services have fully complied with the district court's orders. We agree with the Council and therefore dismiss these appeals and vacate the orders under review pursuant to United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
5 In 1982 the Congress amended the Endangered Species Act to authorize the Secretaries of the Interior and of Commerce, who delegated this authority to the FWS and the NMFS, respectively, to permit the "taking [of an endangered or threatened species] otherwise prohibited by [the Act] if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). An applicant for a so-called incidental take permit (ITP) must submit a habitat conservation plan (HCP) demonstrating to the satisfaction of the Secretary that:
6 (i) the taking will be incidental; (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant will ensure that adequate funding for the [HCP] will be provided; [and] (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild[.] “
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18. Summary and Significance
Spirit of the Sage Council, a coalition of environmental organizations and American Indians took action against the FWS and NMFS for the “No Surprises Rule” and “Permit Revocation Rule”
Council claimed that there had not been enough time for public comment on “Permit Revocation Rule”
Incidental take permits can be issued, if applicants for them submit a habitat conservation plan
Applicants must mitigate impacts of taking
“The Spirit of the Sage Council, et al., sued the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), challenging the Services' jointly-issued "No Surprises Rule" on both substantive and procedural grounds. When the FWS subsequently promulgated the closely related "Permit Revocation Rule," the Council amended its complaint to contest that Rule as well.
2 In the orders under review, the district court held the FWS had not provided an adequate opportunity for the public to comment upon the Permit Revocation Rule, as required by the Administrative Procedure Act, 5 U.S.C. § 553. Although the district court did not reach the merits of the Council's challenge to the No Surprises Rule, the court held that Rule was "sufficiently intertwined with the [Permit Revocation Rule] that it must also be remanded to the agency for consideration as a whole." Spirit of the Sage Council, et al. v. Norton, 294 F.Supp.2d 67, 91 (2003). The district court further ordered the FWS and the NMFS to complete the proceedings on remand within one year and enjoined the Services from applying the No Surprises Rule in the meantime.
3 On appeal the Services do not contest the district court's conclusion that the Permit Revocation Rule was procedurally defective. Rather, they argue the interim suspension of the No Surprises Rule and the one-year deadline for repromulgation of the Permit Revocation Rule exceeded the court's authority under the APA.
4 The Council contends these appeals are moot because the Services have fully complied with the district court's orders. We agree with the Council and therefore dismiss these appeals and vacate the orders under review pursuant to United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
5 In 1982 the Congress amended the Endangered Species Act to authorize the Secretaries of the Interior and of Commerce, who delegated this authority to the FWS and the NMFS, respectively, to permit the "taking [of an endangered or threatened species] otherwise prohibited by [the Act] if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). An applicant for a so-called incidental take permit (ITP) must submit a habitat conservation plan (HCP) demonstrating to the satisfaction of the Secretary that:
6 (i) the taking will be incidental; (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant will ensure that adequate funding for the [HCP] will be provided; [and] (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild[.] “
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19. National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S
Endangered Species Act does not require EPA to apply additional criteria when evaluating a transfer of pollution control jurisdiction under the CWA. V.
“Facts of the Case: 
The Clean Water Act (CWA) instructs the Environmental Protection Agency (EPA) to turn over pollution permitting authority to a state if the state's proposal meets nine listed criteria. When Arizona issued such a proposal, the EPA regional office raised the concern that the transfer might violate Section 7(a)(2) of the Endangered Species Act (ESA), which prohibits agencies from taking actions that might jeopardize endangered species. In accordance with the ESA, the EPA consulted with the Fish and Wildlife Service (FWS). The FWS's opinion was that the ESA was inapplicable because the agency had no authority to consider any additional factors beyond the nine CWA criteria (none of which concerned endangered species). On the advice of the FWS, the EPA approved the transfer.
The Defenders of Wildlife challenged the transfer, arguing that the ESA imposed an authoritative, independent requirement on the EPA's decision to approve the transfer. The agency countered the ESA was not an independent source of authority. Rather, the ESA imposes requirements only on the discretionary decisions of federal agencies. Since its decision was non-discretionary under the CWA, the agency argued, the ESA did not apply. The U.S. Court of Appeals for the Ninth Circuit agreed with Defenders of Wildlife and invalidated the transfer. The Ninth Circuit found the FWS opinion legally flawed and the EPA's reliance on it "arbitrary and capricious." It noted that the EPA's decision was inconsistent with previous transfers of permitting authority, in which the impact on endangered species was considered.
Question: 
1) Can a court require that state Clean Water Act pollution permitting programs include protections for endangered species?
2) Does Section 7(a)(2) of the Endangered Species Act constitute an independent source of authority for federal agencies?
3) Is the EPA's approval of a state permitting program the legally relevant cause of impacts to endangered species resulting from future private land use activities?
4) Was the Court of Appeals correct that the EPA's decision to transfer pollution-permitting authority to Arizona under the Clean Water Act was arbitrary and capricious because it was based on inconsistent interpretations of Section 7(a)(2) of the Endangered Species Act? If so, should the Court of Appeals have sent the case back to the EPA for further proceedings without ruling on the interpretation of Section 7(a)(2)?
Conclusion: 
No to all. By a 5-4 vote the Court reversed the Ninth Circuit and sustained the FWS's determination that Section 7(a)(2) of the Endangered Species Act applies only to discretionary actions of federal agencies. EPA's transfer of permitting authority was a nondiscretionary action, so the EPA needed only to consider the nine criteria in the Clean Water Act. The majority opinion held that Section 7(a)(2)'s provisions for protecting endangered species do not establish a "tenth criterion" for the EPA to consider before transferring permitting authority. By this interpretation the Court sought to "harmonize[]" the ESA with the CWA, in keeping with the Court's interpretive principle that a statute should generally not be interpreted to repeal an earlier statute unless the more recent statute has explicit language to that effect. Because the Court found that the decisions of the EPA and FWS consistently and reasonably interpreted both statutes, it deferred to the views of the administrative agencies. Justice Stevens's dissent argued that the ESA's requirements properly applied to all agency decisions both discretionary and non-discretionary, and that EPA's interpretation was not entitled to deference because "[t]he Departments of the Interior and Commerce, not EPA, are charged with administering the ESA.“”
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20. Summary and Significance
EPA consulted with FWS when considering whether to give polluting permitting authority Arizona under the Clean Water Act, in case this action was jeopardizing endangered species
FWS said ESA not of concern because all of criteria under the Clean Water Act were met
Defenders of Wildlife disagreed, thought other criteria should be considered
(5-4) vote to FWS, ESA does not apply other criteria to the transfer of this authority
“Facts of the Case: 
The Clean Water Act (CWA) instructs the Environmental Protection Agency (EPA) to turn over pollution permitting authority to a state if the state's proposal meets nine listed criteria. When Arizona issued such a proposal, the EPA regional office raised the concern that the transfer might violate Section 7(a)(2) of the Endangered Species Act (ESA), which prohibits agencies from taking actions that might jeopardize endangered species. In accordance with the ESA, the EPA consulted with the Fish and Wildlife Service (FWS). The FWS's opinion was that the ESA was inapplicable because the agency had no authority to consider any additional factors beyond the nine CWA criteria (none of which concerned endangered species). On the advice of the FWS, the EPA approved the transfer.
The Defenders of Wildlife challenged the transfer, arguing that the ESA imposed an authoritative, independent requirement on the EPA's decision to approve the transfer. The agency countered the ESA was not an independent source of authority. Rather, the ESA imposes requirements only on the discretionary decisions of federal agencies. Since its decision was non-discretionary under the CWA, the agency argued, the ESA did not apply. The U.S. Court of Appeals for the Ninth Circuit agreed with Defenders of Wildlife and invalidated the transfer. The Ninth Circuit found the FWS opinion legally flawed and the EPA's reliance on it "arbitrary and capricious." It noted that the EPA's decision was inconsistent with previous transfers of permitting authority, in which the impact on endangered species was considered.
Question: 
1) Can a court require that state Clean Water Act pollution permitting programs include protections for endangered species?
2) Does Section 7(a)(2) of the Endangered Species Act constitute an independent source of authority for federal agencies?
3) Is the EPA's approval of a state permitting program the legally relevant cause of impacts to endangered species resulting from future private land use activities?
4) Was the Court of Appeals correct that the EPA's decision to transfer pollution-permitting authority to Arizona under the Clean Water Act was arbitrary and capricious because it was based on inconsistent interpretations of Section 7(a)(2) of the Endangered Species Act? If so, should the Court of Appeals have sent the case back to the EPA for further proceedings without ruling on the interpretation of Section 7(a)(2)?
Conclusion: 
No to all. By a 5-4 vote the Court reversed the Ninth Circuit and sustained the FWS's determination that Section 7(a)(2) of the Endangered Species Act applies only to discretionary actions of federal agencies. EPA's transfer of permitting authority was a nondiscretionary action, so the EPA needed only to consider the nine criteria in the Clean Water Act. The majority opinion held that Section 7(a)(2)'s provisions for protecting endangered species do not establish a "tenth criterion" for the EPA to consider before transferring permitting authority. By this interpretation the Court sought to "harmonize[]" the ESA with the CWA, in keeping with the Court's interpretive principle that a statute should generally not be interpreted to repeal an earlier statute unless the more recent statute has explicit language to that effect. Because the Court found that the decisions of the EPA and FWS consistently and reasonably interpreted both statutes, it deferred to the views of the administrative agencies. Justice Stevens's dissent argued that the ESA's requirements properly applied to all agency decisions both discretionary and non-discretionary, and that EPA's interpretation was not entitled to deference because "[t]he Departments of the Interior and Commerce, not EPA, are charged with administering the ESA.“”
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21. Sources
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22. Sources Continued
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