June 22, 2018

Opening brief in gnatcatcher listing challenge

By Damien M. Schiff Senior Attorney

Today, we filed our opening merits brief in our challenge to the federal Endangered Species Act listing of the coastal California gnatcatcher. Our lawsuit takes aim at the taxonomic foundation of the listing, namely, whether the gnatcatcher—a diminutive songbird that inhabits very prime real estate in parts of coastal and inland Southern California—constitutes its own “subspecies.” How that question is resolved determines whether the gnatcatcher merits listing, because the bird, although not common in Southern California, is plentiful in parts of Baja California, Mexico.

We contend that, based on recent genetic research, the gnatcatcher should not be considered its own subspecies. The U.S. Fish and Wildlife Service disagrees. But, in denying our petition to delist the gnatcatcher, the Service did not explain why it considers the gnatcatcher to qualify as its own subspecies, nor did it offer any direction as to what must be shown to disprove the gnatcatcher’s subspecies status. The agency’s ruling therefore violates the fundamental administrative law principle of reasoned decision-making. On that basis, among others, we argue that the Service should reconsider the delisting petition and, in the process, articulate a clear and rational standard for defining subspecies.

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