This week the Eastern District of California issued a decision in Sierra Forest Products v. Kempthorne. The case concerned a challenge to the candidate listing of the Pacific fisher, a weasel-like mammal, under the ESA. A "candidate" species is one who listing has been found to be warranted but for which work on a proposed listing rule is precluded by higher priority actions. In response to a petition to list the fisher submitted by the Center for Biological Diversity, the United States Fish and Wildlife Service determined, in April, 2004, that the West Coast population of the fisher—comprising parts of California, Oregon, and Washington, qualified as a distinct population segment under the ESA, and that, the DPS’s listing was "warranted but precluded" by higher priority actions. In finding that the West Coast DPS’s listing was warranted but precluded, the Service reviewed the fisher’s taxonomy, noting the ongoing debate as to whether the fisher constitutes, in North America, a single species or three subspecies. The candidate listing decision, although discussing the taxonomic debate, did not make a formal finding as to the fisher’s taxonomy.
The plaintiff is small, family-run timber mill based in Terra Bella, California. Several of the plaintiff’s timber contracts on National Forest property were enjoined in 2006, in part because the fisher’s candidate listing constituted significant new information requiring the Forest Service to prepare a supplemental environmental impact statement under the National Environmental Policy Act.
In January, 2007, PLF filed suit on behalf of Sierra Forest Products in the Eastern District, contending that the Service had acted arbitrarily and capriciously by failing to specify the fisher’s taxonomy. That failure was actionable, PLF argued, because the ESA does not authorize the listing of a DPS comprised wholly of members of an existing subspecies. (Note that this assertion means that the Service is even precluded from listing a DPS of a species if the species comprises subspecies). CBD and other environmental organizations thereupon intervened to defend the candidate listing.
Both the government and CBD argued that the "warranted" component of a "warranted but precluded" finding cannot be reviewed under either the ESA’s citizen suit provision or the Administrative Procedure Act, because that finding is not a final agency action. In response, the plaintiff argued that the ESA expressly authorizes judicial review of "warranted but precluded" findings, and makes no distinction between the components of those findings. The district court agreed with the plaintiff, holding that, although significant policy arguments existed to deny judicial review of the "warranted" component of a "warranted but precluded" finding, the court could not rewrite the statute, which plainly provides for judicial review of the entire determination.
CBD also objected to the plaintiff’s standing, but this the court also rejected. The court characterized the plaintiff’s action as one seeking vindication for a procedural not substantive wrong, concluding that the plaintiff demanded merely that the Service take a position on the taxonomy of the fisher. The court then relied upon "procedural injury" theory to justify a more relaxed standard for meeting the "fairly traceable" and "redressable" prongs of traditional standing analysis.
On the merits, the court sustained the candidate listing, finding that the Service’s listing analysis impliedly assumed that the fisher constitutes a single species across North America. Moreover, the court held that even if the Service had expressly chosen to list the Pacific fisher as a DPS of a subspecies, that would have been proper because the ESA allows for the listing of DPSs of subspecies. The court’s justification for the latter holding was limited to a citation to the Ninth Circuit’s recent and nonprecedential decision in Center for Biological Diversity v. Kempthorne, in which the court upheld the listing of a DPS of a subspecies and rejected the statutory interpretation argument against that power in a footnote comprising what can only charitably be termed perfunctory analysis.
Thus, Sierra Forest Products is a mixed bag for property owners. On the positive side, it confirms that all aspects of a candidate listing—those antagonistic to environmental interests and those antagonistic to propertied interests—are subject to judicial review. On the negative side, the decision authorizes the listing of DPSs of subspecies, while making no attempt independently to analyze the distinct contentions raised by the plaintiff, namely, that the ESA allows neither the listing of DPSs of subspecies nor the listing of DPSs of species that comprise subspecies.