Natural Resources Defense Council, Inc. v. United State Department of the Interior

dissenting.

This case raises the important question whether courts should craft exceptions to the clear, mandatory deadlines of the Endangered Species Act (“ESA” or the “Act”) to accommodate inadequate agency resources. The question arises in this case — as well in numerous similar cases— because the Fish and Wildlife Service (“Service”) failed to timely designate a critical habitat as required by the ESA. The Service concedes that it violated the ESA’s mandatory deadline for the designation of the tidewater goby’s critical habitat, but argues that equitable factors, namely the Service’s limited budget and its priori *615 tization scheme, should excuse its admitted non-compliance.

The majority declines to consider the merits of this case on the ground that the Service’s compliance with the district court’s injunctive order renders the case moot. The majority’s conclusion that this case is moot is contrary to the position of both parties, which have asserted that this case is not moot. More importantly, the majority misconceives the well established “capable of repetition, yet evading review” exception to the mootness doctrine. By failing to rule on the merits, the majority…

ORDER *

On March 7, 1994, the Fish and Wildlife Service published a final rule listing the tidewater goby as an endangered species. Under the Endangered Species Act, the Secretary of the Interior must designate a critical habitat for an endangered species within a year. 16 U.S.C. § 1533 (a)(3), 1533(b)(6)(A)®, 1533(b)(6)(C)®. When the defendants faded to designate a critical habitat for the tidewater goby, and four years after the Service had listed it as an endangered species, the plaintiff brought suit in district court to compel the designation of the critical habitat.

On April 6, 1999, the district court granted summary judgment to the plaintiff and issued an injunction requiring the defendants to designate a critical habitat for the tidewater goby within 120 days. In the same order, the district court denied the defendants’ request for a stay. The defendants filed the instant appeal.

On the day of oral argument before this court, defendants published a final rule designating the critical habitat for the tidewater goby. The case or controversy with respect to the designation of a critical habitat for the tidewater goby is thus over. Under Article III of the Constitution,…