Today the Ninth Circuit Court of Appeals issued a disappointing decision in Coos County Board of County Commissioners v Kempthorne, et al. The question in the Court’s decision was as follows:
We are asked to decide whether the Fish and Wildlife Service ("FWS") has an enforceable duty promptly to withdraw a threatened species from the protections of the Endangered Species Act (the "ESA" or the "Act"), . . . after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA.
In other words, does the FWS have a duty to remove a species from the threatened list once its own review determines that the population listed is not a population protected under the ESA? To simplify further, does a government agency have a duty to promptly correct an act once it determines that act to be outside the boundaries of its statutory authority?
The Ninth Circuit said no.
Coos County concerns the marbled murrelet, a sea bird that ranges from Southern California all the way north through Canada and Alaska to the Aleutian Islands. In October 1992, the FWS listed the marbled murrelets in Washington, Oregon and California ("tri-state murrelet") as a threatened population under the Endangered Species Act. It did so, because it regarded that population to be a Distinct Population Segment ("DPS"). But at that time, the FWS had not yet promulgated regulations defining a DPS.
In February 1996, the FWS adopted a policy stating that a DPS exists where the population is discrete in relation to the remainder of the species, and where the population is significant to the species. When the FWS finally got around to completing its required five year review, in 2004, it concluded on the basis of that review that the "Washington, Oregon and California population does not satisfy the criteria for designation as a Distinct Population Segment (DPS) under the Service's 1996 DPS Policy." But the FWS made no effort to delist the tri-state murrelet.
Coos County, represented by Pacific Legal Foundation, argued that the FWS has no authority for continuing to list the tri-state murrelet, because that population is not a DPS. The Act only permits the FWS to list a species, a subspecies, or a DPS. The tri-state murrelet is not a separate species from the marbled murrelet, nor is it a separate subspecies of the marbled murrelet. Since 2002, by the FWS’s own findings, the tri-state murrelet has not existed as a DPS.
Once the FWS realized that the tri-state murrelet could no longer qualify for listing, it was argued that the FWS had a mandatory, non-discretionary duty under the ESA or alternatively the Administrative Procedure Act, to immediately initiate delisting procedures. Again, the court found the agency had no such duty. And ignoring the fact the FWS completed its five year review seven years late, and only after being sued, the court reminded Coos County that it should have filed a delisting petition years ago to force "Federal Defendants to make choices under hard deadlines set by Congress . . ."
In any event, the Ninth Circuit requires a petition to delist, even if the five-year review reveals that listing was improper and outside the scope of the ESA.