Spirit of the Sage Council v. Norton

Federal agencies, including the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services) (defendants), jointly promulgated a rule assuring holders of incidental-take permits issued under the Endangered Species Act that they would not be required to mitigate harms to endangered or threatened species beyond what was foreseen at the time the permit was issued (the No Surprises Rule). The No Surprises Rule was challenged in federal district court by various parties, including the Spirit of Sage Council (collectively, the challengers) (plaintiffs), on the ground that it was contrary to the Endangered Species Act. During and in response to this litigation, the Services promulgated another rule, the Permit Revocation Rule, setting out circumstances in which a permit could be revoked under the No Surprises Rule. The Permit Revocation Rule narrowed the circumstances in which the Services could revoke a permit compared with the circumstances under the preexisting rule. The preexisting rule allowed revocation if the permitted activity would affect the maintenance or recovery of a species population, but the Permit Revocation Rule allowed revocation only if the survival and recovery of the entire species were threatened and if the Services had not successfully remedied the problem through other means. The challengers supplemented their lawsuit to assert that the Permit Revocation Rule was a substantive or legislative rule subject to the notice-and-comment requirements of the Administrative Procedure Act (APA). The Services responded that the revocation rule was a mere clarification and did not announce a new substantive rule, so notice and comment were not required. Both parties filed cross-motions for summary judgment.