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Center for Biological Diversity v. Kempthorne

 

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The Center for Biological Diversity and Pacific Rivers Council (collectively “the Center”) appealed a grant of summary judgment after a district court found that the United States Fish and Wildlife Service (FWS) sufficiently complied with the mandates of the Endangered Species Act[1] when determining that listing the Sierra Nevada Mountain Yellow-Legged Frog (Rana muscosa) (the Frog) as endangered was “warranted but precluded.”[2] The Ninth Circuit held that because FWS did not publish the “warranted but precluded” finding in the Federal Register together with an explanation of the agency’s reasoning and the information relied on, FWS violated the express provisions of the ESA.[3]

On February 8, 2000, the Center petitioned FWS to list the Frog as endangered, stating that while the Frog population had once been plentiful, the current population had significantly diminished. On October 12, 2000, FWS published the ninety-day notice that the Center’s petition contained sufficient information to potentially warrant listing the Frog as endangered,[4] and began a status review to determine whether to list the Frog.

The ESA mandates that FWS complete the status review within twelve months of receipt of the petition.[5] FWS failed to meet this deadline and the Center filed suit, resulting in a court order that FWS finish the status review by January 10, 2003.[6] FWS missed its deadline again, but published its findings on January 16, 2003 (Frog Decision).[7] The decision includes biological information about the Frog, its habitat, the impact of species extinction, and issues impacting population. Based on this information, FWS found that the Frog population was in decline and geographically isolated populations were likely to disappear completely. Thus, FWS concluded that the Frog deserved to be listed as endangered under the ESA.

Despite the FWS finding that the Frog warranted listing, FWS determined that listing the Frog was “precluded by other higher priority listing actions.”[8] Under the ESA, FWS can find a species listing “warranted but precluded” by showing that: 1) immediate listing of the species is precluded by other listing petitions FWS is currently considering,[9] and 2) that FWS is acting expeditiously on pending listing or delisting decisions.[10] In the Frog Decision, FWS stated the Frog listing was precluded because the agency allocated all of its resources to complying with court orders and settlements, and used all remaining funds for emergency and high priority listings.[11] However, FWS listed the Frog as a “candidate” for future listing;[12] a “candidate” species is a species, on which FWS maintains the necessary information to list the species as endangered in the future, but current listing is precluded by other agency actions.[13] Each year, FWS issues a Candidate Notice of Review (CNOR), which discusses the entire listing program, steps made to address the listing backlog, and specific candidate species.[14] While the 2002 CNOR discussed species proposed for listing and the restrictions on additional listing actions,[15] the Frog was first discussed in the 2003 CNOR.[16]

The district court entered summary judgment for the defendant, finding that reasons for the “warranted but precluded” determination could be derived from looking at the 2002 CNOR, which indicated that FWS made an implied finding that pending actions were consuming the budget and that expeditious progress was being made with respect to the listing backlog.

The Ninth Circuit first considered the statutory prerequisites that allow FWS to make a “warranted but precluded” finding and determined that the ESA requires the agency to publish the finding in the Federal Register accompanied by an explanation of the reasons and information supporting the finding.[17] The court then turned to Center for Biological Diversity v. Norton, [18] to illustrate the instances under which FWS can make a “warranted but precluded” finding. In that case, the Ninth Circuit stated that the ESA mandates FWS: 1) show that it is working on pending petitioned actions and publish a finding that these actions in fact preclude the petitioned listing, and 2) show that it is making “expeditious progress” in other listing or delisting decisions,[19] and this information must be included in the agency findings. In the present case, FWS failed to include a discussion of the reasons precluding the Frog from being listed and the supporting data with its finding of “warranted but precluded.” The Ninth Circuit determined that because the Frog decision did not include the required statutory elements, the court could not uphold the agency’s decision.[20]

FWS argued that the Frog Decision was sufficiently supported by the 2002 CNOR’s indications that FWS made a finding that other pending actions precluded listing the Frog. The Ninth Circuit rejected this argument because FWS did not follow the procedures required by the statute. The court determined that the statute requires the listing decision to be published “together with” the findings; because the 2002 CNOR was published six months before the Frog Decision, they were not published together. Additionally, the Frog Decision did not reference the 2002 CNOR. The court turned to Securities Exchange Commission v. Chenery Corp.[21] for the proposition that courts cannot validate an agency action by inserting a sufficient basis for the decision when the basis was lacking in the agency’s decision.[22] The court stated that because FWS did not publish the Frog decision with the accompanying reasons and data as required by the ESA, it was invalid. Due to the procedural deficiencies, the court did not address whether the 2002 CNOR satisfied the requirement that the agency show it was working on proposed actions that actually preclude the species listing at issue.

The Ninth Circuit also rejected FWS’s argument that the 2002 CNOR qualified as the requisite finding of “expeditious progress” supporting the “warranted but precluded” finding because they were not published together. The court turned to the language of the statute, which says that the agency “shall” make findings,[23] determining that the language requires an agency to make findings at the time of the decision and to publish the “expeditious progress” finding along with the decision.[24]

The court rejected FWS’s final argument that the 2003 CNOR addressed any shortcomings of the Frog decision because the 2003 CNOR was not published concurrently with the Frog decision. The court noted that the statute requires the agency to make its findings within twelve months of receipt of the petition,[25] and the 2003 CNOR was published beyond that deadline. The Ninth Circuit stated that it is not the place of the court to undermine a statutorily imposed deadline.[26]

The Ninth Circuit concluded that because the “warranted but precluded” finding was not published in the Federal Register together with an explanation of the agency’s reasoning and the information relied and a statement that the agency was achieving “expeditious progress” in other listing decisions, FWS violated the express provisions of the ESA.[27] The court was careful to note that it did not address whether the “warranted but precluded” determination was invalid for any other reasons. The court also determined that based on the reasons underlying its decision, there were no grounds to order FWS to list the Frog.


[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-44 (2000).

[2] Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1099 (9th Cir. 2006); see also 16 U.S.C. § 1533(b)(3)(B)(iii) (2000).

[3] Ctr. for Biological Diversity, 466 F.3d at 1100; see also 16 U.S.C. § 1533(b)(3)(B) (2000).

[4] 90-Day Finding on a Petition to List the Mountain Yellow-Legged Frog as Endangered, 65 Fed. Reg. 60,603, 60,603 (Oct. 12, 2000).

[5] 16 U.S.C. § 1533(b)(3)(B) (2000).

[6] Ctr. for Biological Diversity v. Norton, No. C 01-2106, 2001 WL 1602696 (N.D. Cal. Dec. 12, 2001).

[7] See 12-Month Finding for a Petition to List the Sierra Nevada Distinct Population Segment of the Mountain Yellow-Legged Frog (Rana muscosa), 68 Fed. Reg. 2 283, 2283-2303 (Jan. 16, 2003).

[8] Ctr. for Biological Diversity, 466 F.3d at 1100.

[9] 16 U.S.C. § 1533(b)(3)(B)(iii)(I) (2000).

[10] Id. § 1533(b)(3)(B)(iii)(II).

[11] 12-Month Finding for a Petition to List the Seirra Nevada Distinct Polulation Segment of the Mountain Yellow-Legged Frog (Rana muscosa), 68 Fed. Reg. 2,283, 2,303 (Jan. 16, 2003).

[12] Id.

[13] Review of Species that Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Recycled Petitions; Annual Description of Progress on Listing Actions, 67 Fed. Reg. 40,657, 40,658 (June 13, 2002).

[14] Id.; Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1101 (9th Cir. 2006).

[15] Review of Species that Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Recycled Petitions; Annual Description of Progress on Listing Actions 67 Fed. Reg. 40,657, 40,657 (June 13, 2002).

[16] Review of Species That Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 69 Fed. Reg. 24,876, 24,889 (May 4, 2004).

[17] See Endangered Species Act of 1973, 16 U.S.C. § 1533(b)(3) (2000).

[18] 254 F.3d 833 (9th Cir. 2001).

[19] Id. at 838 (citation omitted); see also 16 U.S.C. § 1533(b)(3)(B) (2000).

[20] See Motor Vehicle Mfr. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (stating that there are cases where a court can “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned”).

[21] 332 U.S. 194 (1947).

[22] Id. at 196.

[23] 16 U.S.C. § 1533(b)(3)(B) (2000).

[24] Id. § 1533(b)(3)(B)(iii).

[25] Id. § 1533(b)(3)(B).

[26] Ctr. For Biological Diversity v. Norton, 254 F.3d 833, 840 (9th Cir. 2001).

[27] 16 U.S.C. § 1533(b)(3)(B)(iii)(I)-(II) (2000).


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