## Facts

- Native American and environmental organizations and members challenged two federal regulations governing Endangered Species Act (ESA) incidental take permits (ITPs) issued under ESA § 10(a).
- The regulations addressed (1) assurances to ITP holders that they would not be required to provide additional mitigation for “unforeseen circumstances” beyond what an approved habitat conservation plan (HCP) requires (“No Surprises”), and (2) when the government may revoke an HCP-based ITP (“Permit Revocation”).
- In earlier litigation, a district court found notice-and-comment deficiencies in the original Permit Revocation rule and remanded both rules as intertwined; the appellate court later dismissed the government’s appeal as moot and vacated those remedial orders after the agencies completed remand rulemaking.
- On remand, the Fish and Wildlife Service and National Marine Fisheries Service reopened public comment, reissued the No Surprises rule, and adopted a revised Permit Revocation rule with additional explanation.
- Plaintiffs filed this suit after the remand rulemaking, asserting the reissued rules violate the ESA and are unlawful under the Administrative Procedure Act (APA).
- The parties filed cross-motions for summary judgment, disputing standing, ripeness, and the merits.

## Issues

1. Whether plaintiffs had Article III standing to challenge the No Surprises and Permit Revocation rules.
2. Whether the claims were ripe for review as challenges to final agency rules rather than to particular HCP/ITP approvals.
3. Whether the No Surprises rule is contrary to the ESA or an impermissible construction of ESA § 10(a).
4. Whether the Permit Revocation rule unlawfully restricts the agencies’ ability to revoke ITPs needed to protect listed species and critical habitat.
5. Whether either rule is arbitrary and capricious under the APA due to inadequate explanation or failure to address significant comments.

## Decision

- The court held plaintiffs had standing based on alleged harms to their use and enjoyment of affected species and a sufficient causal link to rules that structure HCP/ITP terms; vacatur would at least partially redress the injuries.
- The court held the claims were ripe because the rules were final agency action with direct legal consequences for the ITP/HCP program, and plaintiffs need not wait for a particular permit decision.
- Applying Chevron, the court upheld the No Surprises rule as a reasonable agency construction where the ESA does not specify the extent of post-permit additional mitigation obligations and the agencies reasonably chose to provide certainty to encourage HCP participation.
- The court upheld the Permit Revocation rule as consistent with the ESA because it preserves revocation authority in defined situations where continued permitted activity would pose an unacceptable risk to species survival and recovery, and the ESA does not require maximal revocation discretion.
- Under APA arbitrary-and-capricious review, the court found the agencies reopened rulemaking, considered relevant data, responded to significant comments, and gave a reasoned explanation; the rules were not arbitrary, capricious, or an abuse of discretion.
- The court granted summary judgment to the federal defendants and denied plaintiffs’ motion, leaving both rules in effect.

## Legal Principles

- Environmental and related organizational plaintiffs may establish injury in fact by alleging diminished aesthetic, recreational, or study interests in species affected by challenged agency action, supported by concrete use of the relevant resources.
- Programmatic regulations governing ESA permit criteria can be reviewable as final agency action when they consummate agency decisionmaking and impose direct legal consequences, without requiring a challenge to a specific permit issuance.
- When ESA § 10(a) leaves ambiguity about post-permit mitigation obligations, courts may defer under Chevron to a reasonable agency balance between species protection and regulatory certainty intended to encourage participation in HCP-based conservation.
- A permit-revocation framework is consistent with the ESA if it preserves authority to revoke ITPs in limited circumstances where continued activity would appreciably reduce the likelihood of species survival and recovery and lesser measures are inadequate.
- Under APA arbitrary-and-capricious review, a rule is upheld when the agency examines relevant data, addresses significant comments, and provides a rational explanation connecting the record to its policy choice.

## Conclusion

The court held plaintiffs had standing and their facial challenges were ripe, but it upheld the reissued ESA No Surprises and Permit Revocation rules as reasonable interpretations of ESA § 10(a) and adequately explained under the APA, granting summary judgment for the federal defendants.


Spirit of the Sage Council v. Kempthorne, 511 F. Supp. 2d 31 (D.D.C. 2007)