Hunton & Williams LLP Secures Precedential Endangered Species Act Victory for Land Owning Companies in Florida Panther Suit

Decision Advances Collaborative and Flexible Approaches to Species Protection

The U.S. Court of Appeals for the Eleventh Circuit affirmed, by a unanimous decision, the dismissal of a suit to require the U.S. Fish and Wildlife Service to designate millions of acres of land in Florida critical habitat for the endangered Florida panther. Representing some of the largest landowning companies in Florida, Hunton & Williams has been assisting in efforts to develop an innovative plan known as the Florida Panther Protection Program to conserve private lands for the benefit of the panther, while also helping to ensure that carefully planned development can proceed. The plan is endorsed by the federal government, leading wildlife organizations, and a wide range of other stakeholders.

"This is a significant victory for our clients, who have faced repeated threats by opponents to use litigation to force the federal government to designate their land as critical habitat for the endangered panther," said Andrew Turner, counsel in the Washington office. "This decision frees the Fish and Wildlife Service to work collaboratively with private landowners and others on innovative approaches to species conservation that are more effective than critical habitat designation." Critical habitat designation restricts otherwise lawful uses of private land and often lowers the value of that land, while at the same time lacking the proactive conservation benefits of collaborative approaches.

"Our clients, the Eastern Collier Property Owners, have worked with government and environmental organizations to develop a habitat conservation plan to protect the Florida panther in a more comprehensive and collaborative way than coercive top-down regulation," Turner said. "The Florida Panther Protection Program reflects landscape-level planning that will conserve 140,000 acres of contiguous panther habitat while directing development away from that habitat, and will also create the Paul J. Marinelli Florida Panther Protection Fund to pay for additional habitat preservation and other important measures such as the construction of panther road underpasses."

The Florida panther has been listed as an endangered species since 1967. The Endangered Species Act was amended in 1978 to require the designation of critical habitat for species listed as threatened or endangered from that point forward. The 1978 amendments authorized but did not require the Fish and Wildlife Service to designate critical habitat for previously listed species such as the Florida panther. Over 2 million acres of land in Florida that comprise panther habitat are owned by the federal government or the State of Florida. The Service decided not to initiate rulemaking to designate critical habitat for the panther, instead focusing its limited resources on other conservation initiatives such as the Florida Panther Protection Program. The Service specifically mentioned the Florida Panther Protection Program in its decision to deny the appellants' critical habitat petitions.

On April 18, 2012, the U.S. Court of Appeals for the Eleventh Circuit affirmed a decision by the U.S. District Court for the Middle District of Florida dismissing the suit. The court of appeals held that the Fish & Wildlife Service's decision to deny critical habitat rulemaking petitions for the Florida panther is committed to the Service's discretion by law and therefore is not reviewable under the Administrative Procedure Act (APA). The Eleventh Circuit comprehensively analyzed the Endangered Species Act and implementing regulations, concluding that neither the statute nor the regulations establish standards governing the Service's decision whether to propose rulemaking to designate critical habitat for a pre-78 species such as the Florida panther. The court of appeals designated the decision for publication.

The APA provides for review of federal agency action but, as the court of appeals recognized, the APA's judicial review provisions do not apply "to the extent that … agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Similarly, the Endangered Species Act citizen suit provision authorizes suits against the Service, with respect to the designation of critical habitat, only if the Service fails to perform an act or duty "which is not discretionary." 16 U.S.C. § 1540(g)(1).

In proceedings before the Middle District of Florida, Hunton & Williams filed a motion to dismiss on the grounds adopted by the both the district court and the court of appeals. The Department of Justice and the Seminole Tribe of Florida subsequently filed motions to dismiss on the same grounds. Judge John E. Steele of the Middle District of Florida granted the motions to dismiss. The district court's order dismissing the suit noted that, when the Service denied the critical habitat petitions, it "was in the process of working with several conservation organizations and private landowners in Collier County, Florida 'to implement a landscape-scale Habitat Conservation Plan.'" Judge Steele cited the conservation plan efforts led by Washington partners Virginia Albrecht and Mark Weisshaar in his decision. Hunton & Williams lawyers Andrew Turner and Carter Chandler Clements led the litigation team in the district court and appellate court proceedings on behalf of the Eastern Collier Property Owners. Turner presented oral argument, with Chandler Clements second chair.

About Hunton & Williams LLP

Hunton & Williams LLP provides legal services to corporations, financial institutions, governments and individuals, as well as to a broad array of other entities. Since our establishment more than a century ago, Hunton & Williams has grown to more than 800 lawyers serving clients in 100 countries from 19 offices around the world. While our practice has a strong industry focus on energy, financial services and life sciences, the depth and breadth of our experience extends to more than 100 separate practice areas, including bankruptcy and creditors rights, commercial litigation, corporate transactions and securities law, intellectual property, international and government relations, regulatory law, products liability, and privacy and information management.