August 4, 2008

sage grouse update

By sage grouse update

Last December, the U.S. District Court for the District of Idaho concluded that the U.S. Fish and Wildlife Service's 1/6/05 12-Month Finding on the sage grouse, which concluded that listing of the species was not warranted, was arbitrary and capricious.  That decision is available here.

While FWS reconsiders the sage grouse's status, Wyoming governor Dave Freudenthal has released a plan "to protect sage grouse while also protecting the state’s energy industry from the effects of giving the bird protections under the federal Endangered Species Act." This plan is in part the result of Wyoming's learning that "in dealing with other endangered species such as wolves and grizzly bear that it needs to establish 'adequate regulatory mechanisms' both to keep new species from getting listed under the Endangered Species Act and to get listed species off the list."

In the above-mentioned case, Western Watersheds v. United States Fish and Wildlife Service, the Court concluded that the the decision to list a species was a discretionary one and that as such, review of listing determinations is governed by the Administrative Procedure Act, making plaintiff Western Watersheds Project's failure to comply with the ESA's 60-day notice requirement of no consequence.

Pacific Legal Foundation believes the District Court was wrong in this conclusion and will file an appeal to the Ninth Circuit on this issue on behalf of several intervening parties.  The motion for reconsidertion previously submitted to the District Court on this same issue is available here.

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