April 22, 2011

A welcome limitation on an illogical decision

By A welcome limitation on an illogical decision

Author:  Damien M. Schiff

Something of a sleeper case decided in February just came to my attention:  Wildearth Guardians v. U.S. Secretary of the Interior, 2011 U.S. Dist. LEXIS 38736 (D. Idaho Feb. 11, 2011).  The enviro plaintiffs challenged the Fish and Wildlife Service's denial of a petition to list the Columbian sharp-tailed grouse.  The Service had issued the denial at the 90-day stage; the ESA precludes the Service from dismissing a delisting petition at that stage if the petition itself presents substantial information indicating that the petitioned action (i.e., the listing) may be warranted.  Here, the nub of the dispute was over loss of historic range.  The enviros argued that because the grouse has lost about 90% of its historic habitat, that fact alone should justify listing.  This argument is very similar to the successful argument made in the Ninth Circuit's decision in the flat-tailed horned lizard case, Defenders of Wildlife v. Norton.  There, the Ninth Circuit held that the Service, although not required to list a species based on any preset percentage of habitat loss, nevertheless must at least explain why large portions of the species' range where it is now extinct are not "significant."  The Ninth Circuit reasoned that such an analysis is compelled by the ESA's definition of endangered and threatened species as those that are threatened or endangered "throughout all or a significant portion" of their range.

I have previously written about the problems with the Defenders analysis:

The trouble with the Defenders analysis was that it seemed to countenance a logical fallacy. Specifically, the opinion faulted the Service because the agency failed to determine whether the areas of the lizard’s range in which the species is now extinct could be considered "significant." The trouble here is that the ESA provides for listing of species that are currently endangered or threatened but that are not actually extinct. If a species no longer exists, i.e., is extinct, in a portion of its range, then it necessarily cannot be endangered or threatened with extinction in that same portion of its range. (The Interior Department Solicitor adopted this criticism of Defenders in a March, 2007, memo).

Since Defenders was decided, the Ninth Circuit has retreated somewhat from the untenable (but natural) outcome of a Defenders analysis.  The Wildearth Guardians decision, though, represents an additional retreat, for the court held that the Service does not need to engage in a Defenders analysis at the 90-day petition stage if the petition itself does not provide the necessary data to allow for such an analysis.

The Court has conducted a careful review of the listing petition and found precious little information relating to the significance of the mass extirpation of the CSTG from its historic range. Specifically, the Court sought to locate biologically significant information relating to the CSTG's extirpation from its historic range. See 50 C.F.R. § 424.14(b).

In reviewing the administrative record, the Court was able to locate numerous references to the large-scale loss of range when compared to historic levels. Especially when considering some of the materials submitted by Dr. Bart, the CSTG's outlook may lead to a conclusion that survival without protection looks grim. (AR 158, 2399) ("Among all the species [the Columbia Basin Ecosystem Management Project] rated, CSTG has the second lowest probability of persistence.") Regardless, the Court was unable to locate any information regarding the significance of the large-scale extirpation, other than it has occurred. Since FWS is not permitted at the 90-day finding stage to go beyond what is provided by the petition and what is currently available in its files, the agency appropriately declined to speculate about the potential significance of the unoccupied portion of the CSTG's historic range.

The court's docket reveals that the magistrate judge's report was adopted over the objections of the enviros.  Definitely one to watch for an appeal.

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