ELKINS – A West Virginia business says the United States Fish and Wildlife Service and the Department of the Interior have purposely delayed taking action on a permit it began seeking more than 16 years ago.
Allegheny Wood Products, which is based in Petersburg, filed the complaint June 1 in federal court against FWS, FWS Director Martha Williams, DOI and DOI Secretary Deb Haaland.
According to the complaint, AWP applied for an Incidental Take Permit under the Endangered Species Act because it thought some proposed land use may incidentally affect the habitats of threatened or endangered species.
“Though AWP began this application process more than 16 years ago, its application remains unresolved and stuck in perpetual administrative limbo,” the complaint states. “Through complete agency inaction – which AWP believes to be intentional – defendants have unlawfully withheld and unreasonably delayed final disposition of AWP’s application.”
AWP says the defendants have discretion about how to resolve the application, but they do not have discretion about whether to resolve it.
“Because defendants have abdicated their statutory duty to process AWP’s application, AWP has suffered irreparable harm, been deprived of valuable property rights and forced to incur unnecessary and ongoing expense attributable to a never-ending application review process,” the complaint states. “For these reasons, AWP brings this lawsuit under the Administrative Procedure Act to compel a prompt disposition of its application.”
At issue is a tract of land in Tucker County. The first draft of AWP’s permit was submitted May 31, 2006. It says it has expended considerable sums on expert consultants to analyze and propose mitigation measures and to craft a successful Habitat Conservation Plan.
The complaint details various versions of drafts submitted. It says at least nine different ones were submitted before 2011, and 10 versions were submitted between June 2017 and July 2020. It also says FWS took more than three years to provide comments on one draft HCP.
“Many comments were outside the scope of the issuance criteria and reflected ambiguous policy preferences,” the complaint states. “Other comments were purely cosmetic in nature (e.g., outline order and grammar). It was becoming clear that FWS intends only to drag this review process out for as long as possible.”
AWP accuses the defendants of unlawfully withholding agency action and unreasonable delay. It seeks a declaratory judgment and an order directing the defendants to provide dates by which they will conclude their review and resolve the issue. It also asks the court to retain jurisdiction of the case until the process is complete. AWP also seeks attorney fees, court costs and other relief.
AWP is being represented by Andrew Robey and Isaac Forman of Hissam Forman Donovan Ritchie in Charleston.
U.S. District Court for the Northern District of West Virginia case number 2:22-cv-00007