ELR Citation: ELR 20008
No(s). 98-1873 (EGS) (D.D.C. Dec 11, 2003)

The court holds that the no surprises rule, which provides regulatory assurances to holders of incidental take permits (ITPs) issued under the Endangered Species Act (ESA) that they will not be required to commit funds or resources beyond those contemplated at the time the permit was issued to mitigate the effects of unforeseen circumstances on threatened or endangered species and their habitats, and the permit revocation rule, which describes the circumstances under which ITPs may be revoked in light of the no surprises rule, were promulgated in violation of the Administrative Procedure Act (APA). The permit revocation rule is a substantive, rather than interpretive, rule. Further, notwithstanding the U.S. Fish and Wildlife Service's (FWS') and the National Marine Fisheries Service's (NMFS') contention that a 1997 general rulemaking proposal sufficiently embraced the regulatory areas ultimately affected by the 1999 promulgation of the final rule, the final rule was issued without the notice and comment required by the APA. Moreover, the FWS' and the NMFS' post hoc notice-and-comment proceedings failed to cure this violation. Accordingly, the rule was vacated and remanded for further consideration consistent with the APA. Moreover, remand of the permit revocation rule requires remand of the no suprises rule because the FWS and the NMFS explicitly relied on the permit revocation rule to bolster its contention that the no surprises rule is consistent with the requirements of the ESA.

[Counsel not available at this printing.]