Does the Fish and Wildlife Service's listing of the Alabama sturgeon as an endangered species, made without concurrently designating critical habitat, require vacatur of the listing decision, and is the listing arbitrary and capricious or beyond Congress's Commerce Clause power?

The Alabama sturgeon is a small freshwater fish found in the Mobile River Basin of Alabama. Once plentiful enough to be harvested commercially (an estimated 20,000 were caught at the end of the nineteenth century), its numbers declined sharply because of over-fishing, dam construction, dredging and channeling, and habitat degradation. The Fish and Wildlife Service first proposed listing the fish as endangered in 1993, then withdrew the proposal for lack of evidence that the fish still existed. After several fish were captured in the 1990s, the Service proposed listing again in 1999 and issued a final rule on May 5, 2000 listing the fish as endangered. The Service did not designate critical habitat when it issued the rule, found habitat not then determinable, and had still not designated it six and a half years later. The Alabama-Tombigbee Rivers Coalition, an association of business interests, challenged the listing. It argued that the Service ignored genetic evidence showing the fish is identical to the more abundant shovelnose sturgeon, relied on cherry-picked taxonomic studies, and interfered with the research of Service scientist Dr. Steven Fain. It also argued that the failure to designate habitat concurrently required vacatur, and that protecting a purely intrastate, noncommercial species exceeds Congress's Commerce Clause power.

The Service's 1993 proposed listing led to a first suit in which the Coalition obtained a permanent injunction in the Northern District of Alabama barring use of a report prepared in violation of the Federal Advisory Committee Act; the Eleventh Circuit affirmed in Alabama-Tombigbee I, 26 F.3d 1103 (11th Cir. 1994), and the Service later withdrew the proposal. After the Service issued the 2000 Final Rule listing the fish, the Coalition sued under the Endangered Species Act's citizen-suit provision and the Administrative Procedure Act. The district court dismissed for lack of standing, and the Eleventh Circuit reversed in Alabama-Tombigbee II, 338 F.3d 1244 (11th Cir. 2003). On remand, the district court granted summary judgment to the Service, but ordered it to issue a proposed critical habitat rule by May 14, 2006 and a final rule by November 14, 2006. The district court stayed its judgment pending appeal. The Coalition appealed to the Eleventh Circuit, which reviewed the summary judgment de novo.

(Carnes, J.)

No. The Service's listing decision is upheld; the failure to designate critical habitat does not require vacatur, and the listing is neither arbitrary and capricious nor beyond Congress's Commerce Clause power.

Best available science: Under the Administrative Procedure Act, agency action is set aside only if arbitrary, capricious, or an abuse of discretion. The Service permissibly treated genetics as one tool among many in taxonomy and weighed all available data. The cytochrome b studies were not conclusive, because the species diverged only about 10,000 years ago and other fish species differ with little cytochrome b divergence. Control region and nuclear DNA studies supported distinct species status, and the Coalition's contrary argument is an argument from ignorance. The Service reasonably relied on the taxonomic literature, its peer reviewers, and the Mayden and Kuhajda study over a single statistical-journal paper and unpublished reports. Under Marsh v. Oregon Natural Resources Council, an agency may rely on the reasonable opinions of its own experts when specialists conflict. No improper interference with Dr. Fain was shown, and no bad faith warranted discovery beyond the administrative record.

Critical habitat: The 1982 amendments replaced the requirement that habitat be proposed with the listing with a requirement that the final habitat regulation be published concurrently with the final listing, subject to a single one-year extension, for a two-year maximum. The Act therefore gives no procedural right to a habitat proposal during the listing comment period. The concurrence requirement serves as a deadline, and Congress sought to insulate listing from habitat and economic considerations. The legislative history states that if habitat is not designated on time, the listing is not withdrawn. Delisting a near-extinct species as a sanction would defeat the Act's purpose; the district court's order to designate habitat was upheld.

Commerce Clause: Under Gonzales v. Raich, Congress may regulate a class of activities that substantially affects interstate commerce, and courts may not excise individual instances as trivial. The Endangered Species Act is a comprehensive regulatory scheme with substantial economic effects, and listing is an essential part of it. Congress rationally chose to protect all endangered species given unknown uses, ecosystem interdependence, and the prospect of renewed commercial exploitation.