ELR Citation: ELR 20359
No(s). 95-56255 (9th Cir. Dec 11, 1995)

The court holds that a congressional moratorium on spending funds to list species as endangered did not repeal or modify the Secretary of the Interior's obligation under the Endangered Species Act (ESA) to make a final decision whether to list the California red-legged frog within one year of proposing to list it. When the Secretary failed to make a final decision regarding the frog by the ESA deadline, environmental-group plaintiff sued to compel a final decision. But between the time the Secretary missed the deadline and the time the group sued, Congress passed an appropriations bill that contained a rider precluding the Secretary from spending any appropriated funds on making final decisions to list species as threatened or endangered. Through continuing resolutions, Congress extended the moratorium through December 15, 1995. Noting that the repeal of legislation by implication is disfavored, the court first holds that the appropriations rider does not remove the Secretary's statutory duty to act on a proposed rule to list a species as endangered within one year of the date of the proposal's publication. The rider only temporarily removes the funds available for carrying out that duty. The court holds that this duty is mandatory and nondiscretionary and may be enforced by citizen suit. The rider does not repeal or modify the listing provisions of the ESA. The court next holds, however, that the Secretary may not take final action on the listing proposal at this time, because taking final action on the proposal would necessarily require the use of appropriated funds, and under the rider, no appropriated funds are available to make a final listing. The court therefore vacates the district court order requiring the Secretary to take final action by September 15, 1995, and remands for the district court to modify the order to provide that compliance with the requirement that the Secretary make a final determination as to the endangered status of the frog is delayed until a reasonable time after appropriated funds are made available.

Counsel for Plaintiff
Neil Levine
Environmental Defense Center
906 Garden St., Ste. 2, Santa Barbara CA 93101
(805) 963-1622

Counsel for Defendants
Lynn Penman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Canby and Hawkins, JJ.