Results

An Act to conserve threatened species, populations and ecological communities of animals and plants; to amend the National Parks and Wildlife Act 1974, the Environmental Planning and Assessment Act 1979 and certain other Acts; to repeal the Endangered Fauna (Interim Protection) Act 1991; and for other purposes.

In this case, the court is asked to decide whether the federal government's policy for listing killer whales under the Endangered Species Act is invalid. The Center for Biological Diversity, along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service to list the Southern Resident killer whale as an endangered species under the ESA. Initially, the Service issued a proposed ruling based on its DPS policy that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon. After the Center challenged this action, the district court set aside the Service's “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under that policy. Pursuant to the district court's order, the Service reexamined the listing petition and issued a proposed rule that recommended listing the Southern Resident as a threatened species. The Center appealed, and the Service issued a final rule listing the Southern Resident as endangered (as opposed to threatened). The Service contends that this case is now moot because it has ultimately issued a final rule listing the Southern Resident as an endangered species. This court agreed, finding that declaring the DPS Policy unlawful would serve no purpose in this case because the Service has listed the Southern Resident as an endangered species, the Center's ultimate objective.