In a case with a complicated procedural history, the United States District Court for the District of Oregon recently held (pdf) that a claim for failure to consult under section 7 of the Endangered Species Act (ESA) arises under the citizen suit provision of that Act rather than under the Administrative Procedure Act (APA). In doing so, the Court followed the Ninth Circuit’s reasoning in Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (pdf) and rejected a contrary interpretation included in proposed findings and recommendations (pdf) of the magistrate. This distinction is important to litigants for a number of reasons. Among them is the fact that litigation under the APA is governed by the record review doctrine and the ability to conduct discovery in such litigation is limited. In contrast, litigation under the ESA’s citizen suit provision is not constrained in this way. An additional important distinction is the fact that the ESA citizen suit provision provides for recovery of fees by a prevailing party whereas the APA does not include an analogous fee shifting provision.
