Sierra Club; Virginia Wilderness Committee v. United States Department of the Interior

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1082
SIERRA CLUB; VIRGINIA WILDERNESS COMMITTEE,
Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; NATIONAL PARK
SERVICE, an agency of the U.S. Department of the Interior; RYAN ZINKE,
in his official capacity Secretary of the Department of the Interior;
MICHAEL T. REYNOLDS, in his official capacity as Deputy Director,
Operations, Exercising the Authority of Director; STAN AUSTIN, in his official
capacity as Southeast Regional Director, Responsible Official,
Respondents,
ATLANTIC COAST PIPELINE, LLC,
Intervenor.
No. 18-1083
DEFENDERS OF WILDLIFE; SIERRA CLUB; VIRGINIA WILDERNESS
COMMITTEE,
Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; FISH AND WILDLIFE
SERVICE, an agency of the U.S. Department of the Interior; RYAN ZINKE, in his
official capacity Secretary of the Department of the Interior; GREG SHEEHAN, in

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his official capacity as Principal Deputy Director; CINDY SCHULZ, in her official
capacity as Field Supervisor, Virginia Ecological Services, Responsible Official,
Respondents,
ATLANTIC COAST PIPELINE, LLC,
Intervenor.
On Petition for Review from the United States Department of the Interior. (5-140-1945)
Argued: May 10, 2018 Decided: May 15, 2018
Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.
ARGUED: Austin Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW
CENTER, Asheville, North Carolina, for Petitioners. Avi Kupfer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Brooks Meredith
Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor. ON BRIEF:
Amelia Burnette, J. Patrick Hunter, Asheville, North Carolina, Gregory Buppert,
SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for
Petitioners. Eric Grant, Deputy Assistant Attorney General, Andrew Mergen, J. David
Gunter II, Environment and Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Andrew Tittler, S. Amanda Bossie,
Office of the Solicitor, DEPARTMENT OF THE INTERIOR, Washington, D.C., for
Respondents. Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia,
for Intervenor.
ORDER

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PER CURIAM:
Petitioners seek review of the U.S. Fish and Wildlife Service’s Incidental Take
Statement, which authorized the Atlantic Coast Pipeline project to take certain threatened
or endangered species. As to five of the affected species, Petitioners argue that the
agency failed to set clear limits on take as required by the Endangered Species Act.
Exercising jurisdiction pursuant to 15 U.S.C. § 717r(d)(1), we conclude, for
reasons to be more fully explained in a forthcoming opinion, that the limits set by the
agency are so indeterminate that they undermine the Incidental Take Statement’s
enforcement and monitoring function under the Endangered Species Act. Accordingly,
we VACATE the Fish and Wildlife Service’s Incidental Take Statement. See 5 U.S.C.
§ 706(2). We reserve judgment on the parties’ remaining disputes until our forthcoming
opinion.
IT IS SO ORDERED.

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