recognizing “that the harmless error doctrine may be employed only when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of [the] decision reached”
How later courts described this case
- recognizing “that the harmless error doctrine may be employed only when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of [the] decision reached”
- ruling that FWS reasonably considered a conservation agreement and a management strategy, where the agency considered both its conservation benefits and limitations
- finding that the Secretary of the Interior erred when he affirmatively relied on ambiguous and inconclusive studies to support a conclusion
- relying on "specific conservation benefits" that the conservation agreement had achieved since it came into being in support of withdrawal decision as to the horned lizard
Written by the judges who cited it.
The opinion
NOONAN, Circuit Judge,
concurring and dissenting:
This case began in 1993 when the Secretary of the Interior first proposed listing the species. After careful and conscientious consideration by this court, it is now in 2009 remanded to continue to be litigated for an indefinite time. The pattern of the litigation is scarcely unfamiliar in environmental cases. Congress has enacted law designed to conserve species of wildlife threatened with extinction. 16 U.S.C. § 1531 et seq. A federal agency has been entrusted with enforcement. Using its expertise, the agency has determined what protection should be afforded a particular species. Its determination has been challenged by a private nonprofit organizations concerned with the existence of the species. The district court has heard the resulting litigation more than once, and this court has heard it more than once. The various decisionmakers and participants — the agency, the nonprofits, the district court, and the court of appeals — are not motivated by private passion or grudge, but seek to see the fair application of broad legislation to highly particularized and often elusive data. The legal system does not confide the definitive judgment to the agency entrusted with enforcement of the law but subjects that judgment first to the challenges of the nongovernmental organizations and then to the supervision of judges who are not expert in the scientific matters at stake and not familiar with the species whose survival is at stake.
As if this interplay of governmental and private groups did not create room for tension, misunderstandings, and passionate disagreement, the problems in this case have been exacerbated by the simple absence of information. How many flat tailed horned lizards are there?
No one knows the answer to that question. Nor does anyone know how many lizards disappeared when portions of their range disappeared. It is supposed that a diminution in range correlates with a diminution in lizards. This hypothesis is plausible. It has not been shown to be probable. Yet the case turns on what measures are necessary to keep this unknown population in existence. The court concludes that the Secretary erred in finding that the lizard has not lost a significant portions of *883 its range. The old method of counting lizards is out. A new method has not been tried very much. It’s anybody’s guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary’s conclusion impacted by over-reliance on fragmenting evidence of the lizard’s persistence; so the court decides to give the Secretary another crack at the problem.
If the Secretary does not know what the lizard population was to begin with, or what it was in 1993, or what it is now in May 2009, how will he know if it is increasing, staying the same, or declining?
A style of judging, familiar to readers of the old English reports, characterizes the judge as dubitante. That is probably the most accurate term for me, which leads me to concur in the majority opinion insofar as it rejects the contentions of the Tucson Herpetological Society and to dissent from the remand whose command to the Secretary of the Interior is, guess again.