Gerber V. Norton

This case involves a challenge to a decision by the Fish and Wildlife Service to issue a permit authorizing the otherwise unlawful "taking" of the endangered Delmarva fox squirrel in connection with a proposed residential development. Appellants contend that the Service violated the Endangered Species Act (ESA) because it did not allow public comment on a key component of the developer's permit application, and because it did not make the statutorily required finding that the developer's plan reduced the impact of the taking to the maximum extent practicable. Because appellants are correct on both counts, we reverse the district court's grant of summary judgment against appellants and order the case remanded for further consideration by the Service.