Fish and Wildlife Service Must Comply with Endangered Species Act Requirements

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Fish and Wildlife Service Must Comply with Endangered Species Act Requirements Center for Biological Diversity v. Kempthorne, 466 F.3d 1098 (9th Cir. 2006). Allyson L. Vaughn, 3L University of Mississippi School of Law The Ninth Circuit Court of Appeals recently held that when the U.S. Fish and Wildlife Service (FWS) makes a “warranted but precluded” finding under the Endangered Species Act (ESA) it must comply with the explicit requirements provided by the ESA. Background On February 8, 2000, the Center for Biological Diversity and the Pacific Rivers Council (collectively, the Center) petitioned the FWS to list the Sierra Nevada Mountain Yellow-Legged Frog (the Frog) as endangered under the ESA. Approximately eight months later, the FWS published an initial finding indicating that the Frog may require listing. After the initial finding, the FWS began a status review to determine the appropriateness of listing. The FWS failed to release its finding within the twelve month period required by the ESA, and the Center filed suit in the Northern District of California. The district court required the FWS to issue its finding. The FWS published its twelve-month finding on January 16, 2003 (the Frog Decision), which found that listing the Frog was necessary but “precluded by other higher priority listing actions.”1 At the time, the highest priority for the FWS was to comply with court orders and judicially approved settlements, with all remaining funds applied to emergency listings and listings of higher priority species.2 The FWS listed the Frog as a “candidate” species for future listing purposes and assigned a priority ranking of “three” on the 12-level scale where “one” constitutes an emergency. A candidate is a species for which the FWS has sufficient information on file regarding the “biological vulnerability and threats to support a proposal … but for which preparation and publication of a proposal is precluded by higher-priority listing actions.”3 The ESA requires a finding of “warranted but precluded” to be published in the Federal Register and to include “a description and evaluation of the reasons and data on which the finding is based.”4 Additionally, the FWS is required by law to “identify proposals for other listings that preclude listing the [candidate] and to find that procedures are in place to list qualified species.5 The FWS failed to meet these requirements; however, the district court found for the FWS and upheld the “warranted but precluded” decision because the path of the FWS could be “reasonably discerned.”6 The district court based its finding on the descriptions of listing actions that were provided in the 2002 Candidate Notice of Review (CNOR), and the anticipated listed budget for Fiscal Year 2003, neither of which were published with the Frog Decision. The Court of Appeals The Ninth Circuit found that the FWS cannot make a “warranted but precluded” finding without publishing a description of its reasoning and data with the finding.7 Furthermore, case law in the Ninth Circuit clearly indicates that the circumstances under which the “warranted but precluded” finding may be issued are “narrowly defined.”8 In Center for Biological Diversity v. Norton, the court held that the FWS must show that it is “actively working on other listings and delistings and must determine and publish a finding that such work has resulted in pending proposals which actually preclude proposing the petitioned action at that time,” and “must determine and present evidence that [it] is, in fact, making expeditious progress in the process of listing and delisting other species.”9 In the Frog Decision, the FWS failed to make a determination regarding the expeditious progress in listing or delisting other species. The decision also failed to describe or evaluate the data or reasons why the Frog was precluded from listing, despite finding that there are higher priority species precluding the listing of the Frog. The court found that this was not a situation in which the agency’s path may be reasonably discerned. Requisite determinations cannot be absent from the decision when they are referred to in the administrative record. Such deficiencies in a “warranted but precluded” decision cannot be cured with previous or subsequent findings, regardless of whether they are published, if they are not part of the administrative decision itself or published together with it. The court was not able to review the agency’s decision because the agency failed to publish the documents upon which it relied. Conclusion The Ninth Circuit reversed the district court’s decision. The court of appeals held that the Frog Decision failed to satisfy the requirements set forth in 16 U.S.C. § 1533(b)(3)(B) for a “warranted but precluded” finding. Because the Frog Decision failed to satisfy the statutory requirements, the court of appeals refused to consider if the “warranted but precluded” decision was arbitrary and capricious. The court did not order the Frog to be listed, but only remanded for further proceedings. Endnotes 1. 16 U.S.C. § 1533(b)(3)(B)(iii). 2. Id. 3.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). 4.16 U.S.C. § 1533(b)(3)(B). 5. Id. §§ 1533(b)(3)(B)(iii)(I) and (II). 6. Center for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1099 (9th Cir. 2006). 7 Id. at 1102. 8. Id.* at 19. 9. Id.* at *838.
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Fish and Wildlife Service Must Comply with Endangered Species Act Requirements

Center for Biological Diversity v. Kempthorne, 466 F.3d 1098 (9th Cir. 2006).

Allyson L. Vaughn, 3L University of Mississippi School of Law

The Ninth Circuit Court of Appeals recently held that when the U.S. Fish and Wildlife Service (FWS) makes a “warranted but precluded” finding under the Endangered Species Act (ESA) it must comply with the explicit requirements provided by the ESA.

Background
On February 8, 2000, the Center for Biological Diversity and the Pacific Rivers Council (collectively, the Center) petitioned the FWS to list the Sierra Nevada Mountain Yellow-Legged Frog (the Frog) as endangered under the ESA. Approximately eight months later, the FWS published an initial finding indicating that the Frog may require listing. After the initial finding, the FWS began a status review to determine the appropriateness of listing. The FWS failed to release its finding within the twelve month period required by the ESA, and the Center filed suit in the Northern District of California. The district court required the FWS to issue its finding.

The FWS published its twelve-month finding on January 16, 2003 (the Frog Decision), which found that listing the Frog was necessary but “precluded by other higher priority listing actions.”1 At the time, the highest priority for the FWS was to comply with court orders and judicially approved settlements, with all remaining funds applied to emergency listings and listings of higher priority species.2 The FWS listed the Frog as a “candidate” species for future listing purposes and assigned a priority ranking of “three” on the 12-level scale where “one” constitutes an emergency. A candidate is a species for which the FWS has sufficient information on file regarding the “biological vulnerability and threats to support a proposal … but for which preparation and publication of a proposal is precluded by higher-priority listing actions.”3

The ESA requires a finding of “warranted but precluded” to be published in the Federal Register and to include “a description and evaluation of the reasons and data on which the finding is based.”4 Additionally, the FWS is required by law to “identify proposals for other listings that preclude listing the [candidate] and to find that procedures are in place to list qualified species.5 The FWS failed to meet these requirements; however, the district court found for the FWS and upheld the “warranted but precluded” decision because the path of the FWS could be “reasonably discerned.”6 The district court based its finding on the descriptions of listing actions that were provided in the 2002 Candidate Notice of Review (CNOR), and the anticipated listed budget for Fiscal Year 2003, neither of which were published with the Frog Decision.

The Court of Appeals
The Ninth Circuit found that the FWS cannot make a “warranted but precluded” finding without publishing a description of its reasoning and data with the finding.7 Furthermore, case law in the Ninth Circuit clearly indicates that the circumstances under which the “warranted but precluded” finding may be issued are “narrowly defined.”8 In Center for Biological Diversity v. Norton, the court held that the FWS must show that it is “actively working on other listings and delistings and must determine and publish a finding that such work has resulted in pending proposals which actually preclude proposing the petitioned action at that time,” and “must determine and present evidence that [it] is, in fact, making expeditious progress in the process of listing and delisting other species.”9 In the Frog Decision, the FWS failed to make a determination regarding the expeditious progress in listing or delisting other species. The decision also failed to describe or evaluate the data or reasons why the Frog was precluded from listing, despite finding that there are higher priority species precluding the listing of the Frog.
The court found that this was not a situation in which the agency’s path may be reasonably discerned. Requisite determinations cannot be absent from the decision when they are referred to in the administrative record. Such deficiencies in a “warranted but precluded” decision cannot be cured with previous or subsequent findings, regardless of whether they are published, if they are not part of the administrative decision itself or published together with it. The court was not able to review the agency’s decision because the agency failed to publish the documents upon which it relied.

Conclusion
The Ninth Circuit reversed the district court’s decision. The court of appeals held that the Frog Decision failed to satisfy the requirements set forth in 16 U.S.C. § 1533(b)(3)(B) for a “warranted but precluded” finding. Because the Frog Decision failed to satisfy the statutory requirements, the court of appeals refused to consider if the “warranted but precluded” decision was arbitrary and capricious. The court did not order the Frog to be listed, but only remanded for further proceedings.

Endnotes
1. 16 U.S.C. § 1533(b)(3)(B)(iii).
2. Id.
3.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).
4.16 U.S.C. § 1533(b)(3)(B).
5. Id. §§ 1533(b)(3)(B)(iii)(I) and (II).
6. Center for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1099 (9th Cir. 2006).
7 Id. at *1102.
8. Id. at *19.
9. Id. at *838.