ELR Citation: ELR 20313
No(s). 89-5352 (D.C. Cir. Dec 13, 1989)

The court holds that the city of Las Vegas, the Nevada Development Authority, several Nevada developers, and the state of Nevada are not entitled to a preliminary injunction barring the implementation of an emergency regulation issued by the Secretary of the Interior listing southern Nevada's desert tortoise population as an endangered species. The court rules that the standard of review for an emergency regulation issued under the Endangered Species Act (ESA) is less rigorous than for a regulation promulgated under standard rulemaking procedures. In light of the Secretary's determination that a disease that is causing the demise of tortoise populations may spread into Nevada, the court holds that the Secretary may rely on available scientific evidence even if it is inconclusive. The court also holds that consultation by the Fish and Wildlife Service with the Director of the Nevada Department of Wildlife constitutes sufficient consideration of state policies to support an emergency regulation. Further, the court rules that neither the ESA nor agency policy requires that listing a species will guarantee its survival. In addition, the court notes that because Congress amended the ESA to direct the Secretary to use emergency regulations preemptively, any change in agency policy is sanctioned. Finally, the court holds that the decision not to list an isolated tortoise population does not invalidate the decision to include Sonoran Nevada's population.

Counsel for Appellants
Brian McKay, Attorney General; Bernard Nash
Capitol Complex
1802 N. Carson St., Ste. 252, Carson City NV 89710
(702) 885-5866

Counsel for Appellees
Robert L. Karquist
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2731

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