Federal Judge Refuses to Compel Designation of Critical Habitat for Florida Panther

On April 6, 2011, a federal District Court Judge dismissed a lawsuit filed by several environmental groups seeking to force the Department of the Interior and U.S. Fish and Wildlife Service to designate nearly 5,000 square miles of land in South Florida as critical habitat for the Florida panther. The groups alleged that the Federal Defendants had acted arbitrarily and capriciously in violation of both the Endangered Species Act and the Administrative Procedure Act in denying their petitions for rulemaking to designate critical habitat for the species. The Department of Interior and U.S. Fish and Wildlife Service are already developing a landscape-scale Habitat Conservation Plan for the panther in cooperation with interested landowners in South Florida.

Lewis, Longman & Walker represented the Seminole Tribe of Florida, which successfully intervened in the suit on the basis that tribal lands, including several Seminole Reservations, would be included in the area proposed as critical habitat. Such a designation would have placed serious new restrictions on the Tribe's cultural and economic activities on its land, despite the fact that the Seminole Tribe already engages in a number of activities to protect panthers and panther habitat on tribal lands. A number of other private landowners also intervened the case.

Federal District Court Judge John E. Steele dismissed the suit on the principal ground that any decision to designate critical habitat for the Florida panther, which was listed in 1967 prior to adoption of the Endangered Species Act and prior to any requirement to designate critical habitat, was committed to the agency's discretion by Congress. A purely discretionary decision is not reviewable under either the Endangered Species Act citizen suit provisions or the Administrative Procedure Act. The Court also held that the refusal to designate critical habitat for the panther did not violate section 7(a)(1) of the Endangered Species Act, which requires the Secretary of the Interior to consult with other agencies and use other (non-Endangered Species Act) programs to ensure the conservation of the panther. The refusal to designate habitat also did not violate provisions of the Endangered Species Act concerning petitions for revising prior species listings or critical habitat designations. The Judge's Order has since been appealed to the Eleventh Circuit Court of Appeal.

Lewis, Longman & Walker regularly handles endangered species litigation and has a full service litigation team dedicated to defending their clients in administrative proceedings, state and federal courts. If you have questions about this case or how Lewis, Longman & Walker can help you, please do not hesitate to contact the Chair of our Civil, Litigation & Appeals practice group, Andrew J. Baumann at abaumann@llw-law.com or (850) 222-5702.