City of Las Vegas v. Lujan, Nos. 89-5352

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MIKVA, SILBERMAN and D.H. GINSBURG; SILBERMAN
Citation891 F.2d 927
Parties, 20 Envtl. L. Rep. 20,313 CITY OF LAS VEGAS, et al., Appellants, v. Manuel LUJAN, Jr., in his Official Capacity as Secretary, Dept. of Interior, et al. CITY OF LAS VEGAS, et al. State of Nevada, Appellant, v. NEVADA DEVELOPMENT AUTHORITY, et al.
Decision Date13 December 1989
Docket Number89-5362,Nos. 89-5352

Page 927

891 F.2d 927
282 U.S.App.D.C. 57, 20 Envtl. L. Rep. 20,313
CITY OF LAS VEGAS, et al., Appellants,
v.
Manuel LUJAN, Jr., in his Official Capacity as Secretary,
Dept. of Interior, et al.
CITY OF LAS VEGAS, et al. State of Nevada, Appellant,
v.
NEVADA DEVELOPMENT AUTHORITY, et al.
Nos. 89-5352, 89-5362.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 16, 1989.
Decided Dec. 13, 1989.

Page 929

[282 U.S.App.D.C. 59] Appeals from the United States District Court for the District of Columbia (Civil Action No. 89-02216).

Brian McKay, Atty. Gen., State of Nev., of the Bar of the Supreme Court of Nevada, pro hac vice, by special leave of the Court, with whom Bernard Nash, William A. Butler, Andrew P. Miller and Joseph E. Kolick, Washington, D.C., were on the brief, for appellant, State of Nev. Frank F. Flegal also entered an appearance for appellant, State of Nev.

Irwin Goldbloom, Washington, D.C., with whom William C. Kelly, Jr. was on the brief, for appellants, City of Las Vegas, et al.

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C., with whom George W. Van Cleve, Acting Asst. Atty. Gen., and John A. Bryson, Atty., Dept. of Justice, and David Gayer, Solicitor, Dept. of Interior, Washington, D.C., were on the brief, for appellees.

William Perry Pendley, Arlington, Va. and Todd S. Welch, Cheyenne, Wyo. were on the brief for amici curiae, Mountain States Legal Foundation, et al., urging reversal.

John J. Rademacher, Park Ridge, Ill. was on the brief for amici curiae, American Farm Bureau Federation, et al., urging reversal.

Michael Bean also entered an appearance for amici curiae, the Environmental Defense Fund, et al., urging affirmance.

Before MIKVA, SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Pursuant to his powers under the Endangered Species Act ("Act"), 87 Stat. 884, 16 U.S.C. §§ 1531-1544, the Secretary of Interior issued an emergency regulation on August 4, 1989 listing the Mojave Desert population of the desert tortoise (Gopherus agassizii ) as an endangered species. See Emergency Rule, 54 Fed.Reg. 32326 (to be codified at 50 C.F.R. § 17.11) (Aug. 4, 1989). Appellants--the City of Las Vegas, the Nevada Development Authority, several private Nevada real estate developers, and the State of Nevada--brought suit in district court alleging that the emergency listing violated both the Administrative Procedure Act and the Endangered Species Act. Appellants sought a preliminary injunction barring the implementation and enforcement of the regulation pending resolution of the litigation. The district court denied appellants' motion and we affirm.

I.

The Act charges the Secretary of Interior with the responsibility for identifying "endangered" species and provides him with the authority to protect them from further deterioration attributable to human activities--whether industrial, recreational, or even scientific. An endangered species is defined as one "in danger of extinction throughout all or a significant portion of its range...." 16 U.S.C. § 1532(6). The Act, inter alia, generally prohibits the "taking" of an endangered species, which includes harming or capturing it. See 16 U.S.C. §§ 1538(a)(1)(B), 1532(19). The relocation of a listed species or the alteration of its habitat during construction activities constitutes an "incidental taking" that is prohibited by the Act unless the Secretary grants a special permit. See 16 U.S.C. § 1539(a). This restriction is of particular relevance to appellants, who allege that the listing at issue here will bring construction activity in southern Nevada to a standstill.

Normally, the Secretary lists a species that he determines to be endangered 1 by promulgating a regulation after undertaking

Page 930

[282 U.S.App.D.C. 60] formal rulemaking pursuant to APA procedures. See 16 U.S.C. § 1533(b)(4). In case of an "emergency posing a significant risk to the well-being of any species of fish or wildlife or plants," however, the Secretary may bypass those procedures and use provisions in the Act which empower him to issue regulations, including a listing, that take effect immediately upon publication in the Federal Register. Emergency regulations remain in force only for 240 days, although formal rulemaking procedures may be followed to enact normal regulations--including listings--within that time. See 16 U.S.C. § 1533(b)(7). To issue an emergency regulation, the Secretary need only publish in the Federal Register "detailed reasons why such regulation is necessary," 16 U.S.C. § 1533(b)(7)(A), and notify the appropriate state agency in each state where the species is believed to reside, 16 U.S.C. § 1533(b)(7)(B).

In 1985, the Secretary determined that the desert tortoise warranted endangered species protection because of high mortality rates and habitat losses, see 50 Fed.Reg. 49868, 49869 (Dec. 5, 1985), but that such a listing was precluded by the Secretary's limited resources and the need to list other, more severely imperiled, species--a situation contemplated by the Act. See 16 U.S.C. § 1533(b)(3)(B)(iii). The Secretary subsequently reaffirmed the desert tortoise's "warranted, but precluded" status on two separate occasions. See 52 Fed.Reg. 24485 (July 1, 1987) and 53 Fed.Reg. 25511 (July 7, 1988). In 1988, Congress amended the Endangered Species Act, and directed the Secretary to "implement a system to monitor effectively the status of all [warranted but precluded] species ... and ... [to] make prompt use of the authority [to issue emergency regulations] to prevent a significant risk to the well being of any such species." 16 U.S.C. § 1533(b)(3)(C)(iii).

Meanwhile, the desert tortoise population continued to decline. In May of 1989, several environmental groups petitioned the Fish and Wildlife Service of the United States Department of the Interior to list the desert tortoise as an endangered species, calling attention to a previously unknown danger to the tortoise--a fatal, apparently contagious, and incurable respiratory disease ("Respiratory Disease Syndrome") raging within certain wild tortoise populations, primarily in California. On August 4, 1989, after study, the Secretary published an emergency regulation listing as endangered the desert tortoise population located north and west of the Colorado River (the "Mojave" population), including desert tortoises in parts of California, southern Nevada, southwestern Utah, and northwestern Arizona. See 54 Fed.Reg. 32326 (Aug. 4, 1989). 2 The Secretary found that, with the newly discovered threat of disease, the already at-risk desert tortoise faced cumulative dangers that compelled emergency listing. The Secretary pointed to the degradation of tortoise habitat resulting from increased cattle and sheep grazing, off-road vehicle recreation and land development--all of which destroy the forage, vegetative cover, and burrow sites upon which the tortoises depend for food and protection from predators. See id. at 32327. That degradation, combined with a burgeoning raven population, has resulted in a severe increase in raven predation, especially on young tortoises. See id. at 32327. In addition, the Secretary noted that many tortoises had been destroyed by hunting and crushed by recreational vehicles. See id. at 32327, 32329. Not only were these dangers previously found to be significant enough in themselves to warrant an endangered species listing--they apparently also exacerbate the tortoises' susceptibility to the Respiratory Disease Syndrome. See id. at 32328.

In his listing, however, the Secretary excluded those tortoises located south and east of the Colorado River (the "Sonoran" population). Although he expressed concern about the few instances of a respiratory

Page 931

[282 U.S.App.D.C. 61] disease (which was not shown to be Respiratory Disease Syndrome) within the Sonoran population, he explained that those tortoises occur in patchy or disjunct groups, thereby reducing the danger that the disease would spread throughout the population. See id. at 32327.

Appellants argue that the Secretary's emergency listing, as it applies to Nevada, was arbitrary and capricious because: (1) it was based on inferior scientific evidence, (2) it did not adequately take into account Nevada's programs for protecting the tortoise, (3) it will have no ameliorative effect on the respiratory disease that inspired it, (4) it is an unexplained departure from prior agency practice of using emergency regulations only to provide an immediate solution to a specific problem, and (5) it excluded the Sonoran population which has exhibited symptoms of the disease while including the tortoises of Nevada where, appellants claim, no disease has yet been detected. Appellants moved for a preliminary injunction against the implementation and enforcement of the rule. The district court concluded that the Secretary relied on inconclusive scientific data in "finding respiratory disease among wild tortoise populations in Nevada." See City of Las Vegas v. Lujan, Memorandum Order, No. 89-2216 (D.D.C. August 24, 1989) at 5 ("Memorandum Order"). It further agreed with appellants that "listing...

To continue reading

Request your trial
77 practice notes
  • Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule
    • United States
    • Federal Register June 03, 2010
    • 3 Junio 2010
    ...defective in taking into account certain relevant interests * * *. 740 F.2d at 1210-11 (citations omitted). In City of Las Vegas v. Lujan, 891 F.2d 927 (DC Cir. 1989), Court suggested that one component of upholding partial agency compliance with a statutory directive is evidence that the a......
  • Research v. Fed. Trade Comm'n, Civil Case No. 13–1974 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Mayo 2014
    ...those areas where [the FTC has] observed a problem to be addressed.” 78 Fed.Reg. at 68,709; JA at 11; see also City of Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C.Cir.1989) (explaining that “[s]ince agencies have great discretion to treat a problem partially, we [sh]ould not strike down [a r......
  • Guedes v. Bureau Of Alcohol, Tobacco, Firearms, No. 19-5042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 1 Abril 2019
    ...does not misinterpret or misapply the statutory definition of "machinegun." Our review is therefore de novo . City of Las Vegas v. Lujan , 891 F.2d 927, 931–32 (D.C. Cir. 1989) (de novo review of denial of preliminary injunctive relief where "district judge did not make any factual determin......
  • U.S. Small Bus. Admin. v. Vestavia Hills, Ltd. (In re Vestavia Hills, Ltd.), Case No.: 20-cv-01308-GPC-LL
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 26 Marzo 2021
    ...would be if he enacted precisely the same regulation and gave the same explanation after normal rulemaking." City of Las Vegas v. Lujan, 891 F.2d 927, 932 (D.C. Cir. 1989). 10. But as the court in Tradeways explains, "the mere existence of favorable forgiveness terms in the CARES Act does n......
  • Request a trial to view additional results
71 cases
  • Research v. Fed. Trade Comm'n, Civil Case No. 13–1974 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Mayo 2014
    ...those areas where [the FTC has] observed a problem to be addressed.” 78 Fed.Reg. at 68,709; JA at 11; see also City of Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C.Cir.1989) (explaining that “[s]ince agencies have great discretion to treat a problem partially, we [sh]ould not strike down [a r......
  • Guedes v. Bureau Of Alcohol, Tobacco, Firearms, No. 19-5042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 1 Abril 2019
    ...does not misinterpret or misapply the statutory definition of "machinegun." Our review is therefore de novo . City of Las Vegas v. Lujan , 891 F.2d 927, 931–32 (D.C. Cir. 1989) (de novo review of denial of preliminary injunctive relief where "district judge did not make any factual determin......
  • U.S. Small Bus. Admin. v. Vestavia Hills, Ltd. (In re Vestavia Hills, Ltd.), Case No.: 20-cv-01308-GPC-LL
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 26 Marzo 2021
    ...would be if he enacted precisely the same regulation and gave the same explanation after normal rulemaking." City of Las Vegas v. Lujan, 891 F.2d 927, 932 (D.C. Cir. 1989). 10. But as the court in Tradeways explains, "the mere existence of favorable forgiveness terms in the CARES Act does n......
  • Sherley v. Sebelius, No. 10–5287.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 29 Abril 2011
    ...In this case, our de novo review is central to the plaintiffs' likelihood of success on the merits, see City of Las Vegas v. Lujan, 891 F.2d 927, 931–32 (D.C.Cir.1989), which success depends upon an issue of statutory interpretation. A. Likelihood of Success on the Merits In entering the pr......
  • Request a trial to view additional results
2 books & journal articles
  • Criteria and Procedures for Species Listings
    • United States
    • Endangered species deskbook
    • 22 Abril 2010
    ...1, 1994). 210. 16 U.S.C. §1533(b)(7), ELR Stat. ESA §4(b)(7). 211. Id. 212. 50 C.F.R. §424.20 (1992). See City of Las Vegas v. Lujan, 891 F.2d 927, 20 ELR 20313 (D.C. Cir. 1989). City of Las Vegas was the irst and remains the only major case addressing the use of emergency rulemaking author......
  • Enforcement and Citizen Suits
    • United States
    • Endangered species deskbook
    • 22 Abril 2010
    ...a preliminary injunction) and also featured an 37. Sw. Ctr. , 143 F.3d at 520-21. 38. Id . at 522 n.3. 39. City of Las Vegas v. Lujan, 891 F.2d 927, 20 ELR 20313 (D.C. Cir. 1989). 40. 437 U.S. 153, 8 ELR 20513 (1978). 41. Id . at 187-88. 42. 1991 WL 206232 (D.D.C. Sept. 27, 1991). Page 86 E......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT