Results

The plaintiffs charge in that the Secretary of the Interior, in contravention of statutory duty, has failed to conduct the nondiscretionary, five-year status reviews of species listed as endangered or threatened in the Federal Register. Plaintiff seeks an order declaring that Defendants have violated the Endangered Species Act and that the failure to conduct the status reviews constitutes agency action “unlawfully withheld” in violation of the Administrative Procedure Act. Defendants argue that their failure to conduct the mandatory status reviews is not an agency action that is reviewable under the APA. Defendants therefore assert that the Court lacks subject matter jurisdiction over Plaintiff's suit to compel agency action to the extent that it arises under the APA. Although not addressed by Defendants and although there is little authority on the issue, Defendants' failure to comply with a mandatory duty falls within the first category of actions reviewable under the APA as an agency action, or inaction, “made reviewable by statute” because the ESA explicitly “provides a private right of action." Defendants assert that budgetary and resource constraints precluded the Secretary from fulfilling the obligation imposed by Congress. However, the court stated that defendants ". . . should take up such constraints with Congress rather than let mandatory deadlines expire with inaction."