5 Year Status Review Decision
Last week the District of Oregon ruled in Moden v. U.S. Fish & Wildlife Service that the Service has no duty to act upon the findings of a five-year status review initiated under Section 4 of the ESA. As readers of this blog will recall, the Ninth Circuit held recently in Coos County Board of Commissioners v. Kempthorne, 531 F.3d 792 (9th Cir. 2008), that the Service has no legal obligation to act upon the findings of five-year review. In Moden, the plaintiffs had challenged the Service's failure to initiate downlisting proceedings for the Lost River Sucker (from endangered to threatened). The Moden plaintiffs attempted to distinguish their case from Coos County on the grounds that the status review at issue in Coos County did not recommend down- or delisting, whereas the Sucker status review did. Nevertheless, the Moden court ruled for the Service on the grounds that the Service has no legal obligation to act on a five-year review petition, so it cannot be liable for a failure to act within a reasonable amount of time.