Home » Case Summaries » 2017 » Wildwest Institute v. Kurth, 855 F.3d 995 (9th Cir. 2017).


Wildwest Institute v. Kurth, 855 F.3d 995 (9th Cir. 2017).


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Wildwest Institute and the Alliance for the Wild Rockies (Wildwest) appealed a summary judgment ruling[1] from the United States District Court for the District of Montana in favor of the Director of the United States Fish and Wildlife Service and the Secretary of the United States Department of the Interior (FWS), as well as the State of Wyoming. FWS listed the whitebark pine as relatively high for risk of extinction,[2] but found that listing it as a threatened or endangered species was “warranted but precluded” under the Endangered Species Act (ESA).[3] Wildwest asserted that FWS’s decision was arbitrary and capricious because FWS 1) did not strictly follow its listing priority guidelines, 2) considered factors outside of the guidelines, 3) found that listing the whitebark pine was precluded by species that did not face a higher degree of threat than the whitebark pine, while FWS did not give an individualized explanation for each precluding species, and 4) considered budget limitations, court orders, and statutory deadlines in making its determination. The United States Court of Appeals for the Ninth Circuit, reviewing under the arbitrary and capricious standard,[4] rejected the appeal and affirmed the district court’s ruling.

In 2011, FWS issued its yearly finding, which included a finding that the whitebark pine’s status as a threatened or endangered species was warranted but precluded under the ESA. FWS reached this finding despite threats from disease, insect predation, climate change, and habitat loss, among other factors, suggesting that the whitebark pine was in danger of extinction or likely to become so within the near future. The whitebark pine was assigned a Listing Priority Number (LPN) of 2, on a scale of 1 to 12, with 1 being the highest priority. In 2013, Wildwest filed a complaint for injunctive and declaratory relief against FWS, seeking review of this “warranted but precluded” finding.

First, the court decided that the case was not moot because it was “capable of repetition, yet evading review.” In 2015, FWS issued a Candidate Notice of Review (CNOR) assigning the whitebark pine a lower-priority LPN.[5] FWS then moved to dismiss the appeal as moot because Wildwest’s claims were based on an earlier, higher-priority LPN. FWS must make a new twelve month finding annually regarding a species status.[6] Because every CNOR up to 2015 found that the whitebark pine was “warranted but precluded,” the court found it reasonable to expect that Wildwest will be subject to the same challenged action again, and that the annual finding therefore evades review.

Second, the Ninth Circuit looked to the language of the Endangered Species Act (ESA),[7] and determined that it did not require FWS to prioritize species based solely on the degree of threat established through the LPN. The court noted that Congress mandated the ranking system “to assist” in identifying species in need of priority review, that “assist” meant “to give support or aid,” and thereby the ranking system was only one tool to be used in deciding on a listing priority. Further, in published guidelines, FWS stated that the priority system acted as a flexible guide rather than an inflexible framework. Thus, the court stated the guidelines did not prohibit FWS from considering additional information outside the guidelines and listing other species with the same or higher LPNs before the whitebark pine did not render the “warranted but precluded” finding arbitrary or capricious.

Third, the court found that FWS had adequately explained the reasons and data for its finding that work upon pending petitions precluded listing of the whitebark pine. The ESA[8] and cases[9] within the Ninth Circuit require FWS to publish “a description and evaluation of the reasons and data” upon which the finding is based. Since FWS explained its budget, how it prioritizes actions, the criteria used to rank within a given LPN, and a listing of the specific species with pending proposals that preclude listing the petitioned species, it met the given requirements.

Finally, the court decided that FWS may properly consider its budget and court order or statutory deadlines related to pending proposals for other species when concluding that listing a given species is “warranted but precluded.” Wildwest argued that FWS could not rely on self-imposed budget limitations or court-ordered or statutory deadlines for other species to delay in listing the whitebark pine. The court stated that the ESA does not require the Department of the Interior to make budget requests sufficient to eliminate the need for a “warranted but precluded” finding, that it is Congress, and not the Ninth Circuit, that can review an agency’s budget request,[10] and that the ESA does not prohibit consideration of budget, court orders, or statutory deadlines in making “warranted but precluded” determinations.

In sum, the Ninth Circuit found that the case was not moot based on a newer finding lowering the whitebark pine’s LPN, and that FWS was not arbitrary or capricious in considering factors outside of its guidelines, in listing equal or lower priority species before the whitebark pine, or in considering its budget and court-ordered or statutory deadlines in making its determination.

Footnotes    (↵ returns to text)

  1. Wildwest Institute v. Kurth, 855 F.3d 995, 996 (9th Cir. 2017).
  2. Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Pinus albicaulis as Endangered or Threatened with Critical Habitat, 76 Fed. Reg. 42,631, 42,647 (July 19, 2011) (to be codified at 50 C.F.R. pt. 17).
  3. Endangered Species Act, 16 U.S.C. § 1533(b)(3)(B)(iii) (2012).
  4. Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2012).
  5. Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates for Listing as Endangered or Threatened; Annual Notice on Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 80 Fed. Reg. 80,584, 80,586 (Dec. 24, 2015) (to be codified at 50 C.F.R. pt. 17).
  6. 16 U.S.C. § 1533(b)(3)(C)(i).
  7. Id. § 1533(h)(3).
  8. Id. § 1533(b)(3)(B)(iii).
  9. See, e.g., Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1102 (9th Cir. 2006); see also Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 838–39 (9th Cir. 2001).
  10. U.S. Const. art. I, § 9.
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