1 of 15 documents united states code service

5.--Listing as threatened or endangered species

Since 16 USCS § 1533(b)(1)(A) specifically requires that listing determination be based solely on basis of best scientific and commercial data available, economic analysis is not factor in listing determination. N.M. Cattle Growers Ass'n v United States Fish & Wildlife Serv. (2001, CA10 NM) 248 F3d 1277, 52 Envt Rep Cas 1500, 2001 Colo J C A R 2443, 31 ELR 20614 (criticized in Cape Hatteras Access Pres. Alliance v United States DOI (2004, DC Dist Col) 344 F Supp 2d 108, 59 Envt Rep Cas 1686, 34 ELR 20136) and (criticized in Ctr. for Biological Diversity v BLM (2006, ND Cal) 422 F Supp 2d 1115) and (questioned in criticized in Ariz. Cattle Growers' Ass'n v Kempthorne (2008, DC Ariz) 534 F Supp 2d 1013) and (criticized in Fisher v Salazar (2009, ND Fla) 656 F Supp 2d 1357) and (criticized in Ariz. Cattle Growers' Ass'n v Salazar (2009, CA9 Ariz) 606 F3d 1160, 70 Envt Rep Cas 1929, 40 ELR 20154).

Once U.S. Fish and Wildlife Service (FWS) renders final decision on petition seeking to list species as endangered, issue of whether or not FWS acted arbitrarily in refusing to grant emergency listing status to species under 16 USCS § 1533(b)(7) becomes moot for U.S. Const. art. III, § 2, purposes; Third Circuit will not reach back past published Candidate Notice of Review and consider legal claims regarding FWS's earlier denial of emergency rule-making under 16 USCS § 1533(b)(7). Am. Bird Conservancy v Kempthorne (2009, CA3 NJ) 559 F3d 184, 39 ELR 20055.

Third Circuit declined to decide whether district court correctly concluded that it lacked jurisdiction under 5 USCS § 701(a)(2) to review U.S. Fish and Wildlife Service's (FWS) discretionary decision not to undertake emergency rule-making to place species of migratory shorebird on endangered species list pursuant to 16 USCS § 1533(b)(7) because that issue became moot for U.S. Const. art. III, § 2, purposes once FWS made final determination pursuant to § 1533(b)(3)(B) that listing of species was warranted but precluded by higher-priority listing activity; there was no meaningful relief that appeals court could award with regard to emergency petition once FWS made final listing decision as to species at issue, and emergency monitoring system set out in § 1533(b)(3)(C)(iii) provided quite substantial relief to conservation groups that sought emergency listing for species. Am. Bird Conservancy v Kempthorne (2009, CA3 NJ) 559 F3d 184, 39 ELR 20055.

Nine-month timetable for issuance of "12-month" finding under Endangered Species Act, 16 USCS § 1533(b)(3), was reasonable because Fish and Wildlife Service's delay in issuing finding was due to budget considerations and state transportation department had agreed to postpone start of highway construction project until determination on species in question was made. Save Our Springs Alliance v Norton (2005, WD Tex) 361 F Supp 2d 643.

Because final rule deviated substantially from proposed rule, defendants failed to provide public with adequate notice and opportunity for comment on Eastern Distinct Population Segments (DPS), in violation of 5 USCS § 553; because Fish and Wildlife Service (FWS) expanded boundaries of DPS in final rule, it was bypassing application of Endangered Species Act (ESA), 16 USCS §§ 1531-1544, in non-core population areas; therefore, FWS's application of Policy Regarding Recognition of Distinct Vertebrate Population (DPS Policy) was inconsistent with statute under which regulations were promulgated, and final rule was vacated and remanded for reconsideration by FWS. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).

Where U.S. Fish and Wildlife Service (FWS) determined that species warranted protection due to increased energy development but was not of sufficient priority to warrant immediate protective rulemaking, FSW was not required to emergency list species as threatened or endangered under 16 USCS § 1533(b)(3)(C)(iii), since FWS properly found no significant risk to species or its habitat in near future. Wilderness Soc'y v Wisely (2007, DC Colo) 524 F Supp 2d 1285, 37 ELR 20215.

Because defendant Secretary of Interior's decision not to list species as endangered under emergency procedures of 16 USCS § 1533(b)(7) was discretionary matter, judicial review under Administrative Procedure Act, 5 USCS § 701(a), was precluded and plaintiff environmental group was not allowed, under Fed. R. Civ. P. 15(a), (d), to supplement its complaint to assert such claim. Wildearth Guardians v Kempthorne (2008, DC Dist Col) 592 F Supp 2d 18, 69 Envt Rep Cas 1328.

Because defendant Secretary of Interior's decision not to list species as endangered under emergency procedures of 16 USCS § 1533(b)(7) was discretionary matter, judicial review under Administrative Procedure Act, 5 USCS § 701(a), was precluded and plaintiff environmental group was not allowed, under Fed. R. Civ. P. 15(a), (d), to supplement its complaint to assert such claim; case did not involve finding of "warranted but precluded" under § 1533(b)(3), thus, no special emergency listing duties were involved. Wildearth Guardians v Kempthorne (2008, DC Dist Col) 592 F Supp 2d 18, 69 Envt Rep Cas 1328.

Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., requires that condition of listed species (or distinct population segments) be improved so that they will no longer need protection of ESA; reasonable implication of this requirement is that agencies should aim recovery efforts toward establishing self-sustaining populations. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.

6.----Birds

District court's denial of preliminary injunction requested by wildlife group against issuance of permit for golf course and housing project on basis that wildlife group failed to show harm to bald eagle species as whole was abuse of discretion since Endangered Species Act standard is not benchmark for showing irreparable harm from permit issued under Clean Water Act (CWA) § 404, 33 USCS § 1344; evidence presented, which showed that proposed development posed significant risk of harming eagles, was adequate and not speculative. Greater Yellowstone Coalition v Flowers (2003, CA10 Wyo) 321 F3d 1250, 55 Envt Rep Cas 2097, subsequent app (2004, CA10 Wyo) 359 F3d 1257, 58 Envt Rep Cas 1008, 34 ELR 20019 (criticized in W. Watersheds Project v BLM (2006, DC Nev) 64 Envt Rep Cas 1030).

Fish and Wildlife Service's (FWS) determination that Northern Goshawk was not endangered was amply supported by evidence in record and was affirmed on appeal pursuant to Administrative Procedures Act, 5 USCS § 706(2)(A); FWS determined that best available scientific and commercial data did not indicate goshawk population was endangered or threatened pursuant to Endangered Species Act, 16 USCS § 1533(b)(1)(A). Ctr. for Biological Diversity v Badgley (2003, CA9 Or) 335 F3d 1097, 2003 CDOS 6393, 2003 Daily Journal DAR 8066, 56 Envt Rep Cas 1957, 33 ELR 20244.

Fund had no statutory right to petition Secretary of Interior for emergency listing of tri-state portion of trumpeter swan population under 16 USCS § 1533(b)(7), and no right to decision meeting certain procedural or substantive standards. Fund for Animals, Inc. v Hogan (2005, App DC) 368 US App DC 238, 428 F3d 1059, 61 Envt Rep Cas 1353, 35 ELR 20225, reh den (2006, App DC) 2006 US App LEXIS 32751.

United States Fish and Wildlife Services letter addressing fund's petition for non-emergency listing of tri-state portion of Rocky Mountain trumpeter swan population was superseded by Services' belated 90-day finding. Fund for Animals, Inc. v Hogan (2005, App DC) 368 US App DC 238, 428 F3d 1059, 61 Envt Rep Cas 1353, 35 ELR 20225, reh den (2006, App DC) 2006 US App LEXIS 32751.

U.S. Fish and Wildlife Service (FWS) is ordered to vacate and redo its 90-day finding that petition to list northern goshawks in western U.S. as threatened and endangered species did not present substantial information indicating that proposed action may be warranted, where FWS, in many post-1978 cases, made listing decisions regarding "distinct population segments" without requiring reproductive isolation or genetic differentiation as it did in this case, because agency failed to conduct reasoned evaluation based on most current biological and scientific data available, as required by 16 USCS § 1533(b)(1)(A). Southwest Ctr. for Biological Diversity v Babbitt (1996, DC Ariz) 926 F Supp 920, summary judgment gr, motion to strike gr, remanded (1997, DC Ariz) 980 F Supp 1080, 45 Envt Rep Cas 2015.

Determination not to list Queen Charlotte goshawk as threatened or endangered species under 16 USCS § 1533 could not be based on Forest Service's promises of proposed future actions to provide sanctuary for bird, where determination was required to be based on current Forest Service plan and current status of goshawk and its habitat. Southwest Ctr. for Biological Diversity v Babbitt (1996, DC Dist Col) 939 F Supp 49, 43 Envt Rep Cas 1862.

Fish and Wildlife Service's issuance of its preliminary finding upon citizen's petition to list Baird's Sparrow as endangered was not issued "to maximum extent practicable, within 90 days," and was unreasonably and unlawfully delayed in violation of 16 USCS § 1533(b)(3)(A), where Service took 23 months to make preliminary finding, because it appears that Service has adopted improper policy of delaying making flexible 90-day finding so as to delay application of mandatory 12-month period for making final ruling on petitions. Biodiversity Legal Found. v Babbitt (1999, DC Dist Col) 63 F Supp 2d 31, 49 Envt Rep Cas 1477.

Environmental groups and wildlife enthusiasts were granted summary judgment on their claim that federal officials' decision to deny 16 USCS § 1533(b)(7) emergency petition to list Trumpeter swan population as threatened or endangered was arbitrary and capricious under 5 USCS § 706(2)(A) where federal officials' explanation for denial did not provide even cursory explanation as to why Trumpeter swan population was not considered separate population from another population. Fund for Animals v Williams (2003, DC Dist Col) 246 F Supp 2d 27, amd on other grounds (2004, DC Dist Col) 311 F Supp 2d 1, affd (2005, App DC) 368 US App DC 238, 428 F3d 1059, 61 Envt Rep Cas 1353, 35 ELR 20225, reh den (2006, App DC) 2006 US App LEXIS 32751.

U.S. Secretary of Interior was granted summary judgment on claim that she unlawfully delayed in issuing 90-day finding required by 16 USCS § 1533(b)(3)(A) on environmental organizations' petition to list Mono sage grouse as endangered species, as Secretary demonstrated that fiscal year budget for endangered species and critical habitat listing had been committed to other listing activity dictated by court orders and settlement agreements, but organizations had offered no evidence that funds allotted to listing activity had actually been expended for some other purpose. Inst. for Wildlife Prot. v Norton (2003, WD Wash) 303 F Supp 2d 1175.

In challenge to finding made by Fish and Wildlife Service regarding Montana fluvial arctic grayling, Service was ordered to provide fuller evidentiary basis for its finding that listing for grayling was warranted but precluded by financial and legal restraints and that it was making expeditious progress in context of those restraints. Ctr. for Biological Diversity v United States Fish & Wildlife Serv. (2004, DC Dist Col) 350 F Supp 2d 23, 59 Envt Rep Cas 1809.

Environmental groups were not entitled to attorney fees under 16 USCS § 1540(g)(4), in their action seeking to compel United States Fish and Wildlife Service to list California spotted owl as endangered and threatened species under 16 USCS § 1533; groups failed to realize goals of their lawsuit, and their success in obtaining timely consideration of subsequent listing petition could not be characterized as partial success for purposes of catalyst doctrine of fee shifting. Ctr. for Biological Diversity v Scarlett (2006, ND Cal) 452 F Supp 2d 966.

Environmental group was entitled to summary judgment in its action under Administrative Procedure Act, 5 USCS §§ 701 et seq., challenging U.S. Fish and Wildlife Service's (FWS) decision to reject petitions to list greater sage-grouse under 16 USCS § 1533, because decision was arbitrary and capricious under 5 USCS § 706(2)(A); FWS's decision-making process violated requirement that "best science" be applied, lacked coherent analysis of deterioration of habitat and regulatory mechanisms designed to protect sage-grouse, and was tainted by inexcusable conduct of FWS executive. Western Watersheds Project v United States Forest Serv. (2007, DC Idaho) 535 F Supp 2d 1173, 66 Envt Rep Cas 1693.

Although group alleged that United States Fish and Wildlife Service (FWS), FWS Secretary, and Director violated 16 USCS § 1533(b)(3)(A) by failing to make timely 90-day finding as to whether group's petition to list 13 species of foreign macaws, parrots and cockatoos as threatened or endangered, offered substantial information suggesting that petitioned action may have been warranted; however, FWS placed 90-day finding concerning group's petition on public inspection at Federal Register, and finding was published next day; as FWS took action group requested, group's claim for injunctive relief was moot, and if facts underlying action changed such that there was no immediate controversy between parties, claim for declaratory judgment failed. Friends of Animals v Salazar (2009, DC Dist Col) 670 F Supp 2d 7.

7.----Fish

Fish and Wildlife Service (FWS) adequately considered best scientific data available as required by 16 USCS § 1533(b)(1)(A) in reaching decision to list Alabama sturgeon as endangered; FWS acted within its discretion under 5 USCS § 706(2)(A), part of Administrative Procedure Act, in considering genetic evidence as one, but not sole, factor in finding that Alabama sturgeon's taxonomy differed enough from that of shovelnose sturgeon to classify it as separate species. Alabama-Tombigbee Rivers Coalition v Kempthorne (2007, CA11 Ala) 477 F3d 1250, 63 Envt Rep Cas 2098, 37 ELR 20040, 20 FLW Fed C 293, cert den (2008) 552 US 1097, 128 S Ct 877, 169 L Ed 2d 725, 66 Envt Rep Cas 1416.

District court erred in granting summary judgment in favor of environmental groups on their claim that Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) (Hatchery Listing Policy) and National Marine Fisheries Service's corresponding downlisting of Upper Columbia River steelhead from endangered to threatened under 16 USCS § 1533 violated Endangered Species Act (ESA), 16 USCS §§ 1531 et seq.; basing listing determinations on status of entire evolutionary significant unit, including hatchery fish, did not violate ESA, and decisions were based on best scientific evidence available as required under 16 USCS § 1533(b)(1)(A). Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.

On challenge by plaintiffs, fisherman and environmental groups, due to lack of genetic (introgression) data on hybridization, it was not unreasonable for defendants, heads of Department of Interior and United States Fish and Wildlife Service, to rely on morphological (characteristic) data to classify westslope cutthroat trout (WCT) -- even though some of those counted may have had introgression levels greater than 20%; under 16 USCS § 1533(b)(1)(A), listing determinations were to be made solely on best scientific and commercial data available and genetic data was not available for large majority of WCT populations. Am. Wildlands v Kempthorne (2008, App DC) 382 US App DC 78, 530 F3d 991, 67 Envt Rep Cas 1107, 38 ELR 20165.

Fish and Wildlife Service's finding that listing of bull trout as threatened or endangered species was "warranted but precluded" is reversed and remanded for reconsideration, where Service explained that it considered threat to bull trout's continued existence to be only "moderate" due to its widespread range, existence of populations in protected areas, and ongoing management changes that are expected to benefit some populations, because record reveals that reliance on these factors, without further explanation, is so questionable and internally inconsistent as to render that reliance arbitrary and capricious. Friends of the Wild Swan v United States Fish & Wildlife Serv. (1996, DC Or) 945 F Supp 1388, 43 Envt Rep Cas 1873, 27 ELR 20524 (criticized in Oregon Natural Resources Council v Daley (1998, DC Or) 6 F Supp 2d 1139, 29 ELR 20514) and (Reversal noted in Ctr. for Biological Diversity v Salazar (2010, ND Cal) 2010 US Dist LEXIS 113757).

Decision of National Marine Fisheries Service not to list steelhead as threatened species under 16 USCS § 1533 within evolutionary significant unit (ESU) was arbitrary and capricious, where Service had listed steelhead as threatened in ESU in proposed rule, and Service relied exclusively on states' voluntary and future actions, despite its finding in proposed rule that past state conservation efforts were inadequate. Fed'n of Fly Fishers v Daley (2000, ND Cal) 131 F Supp 2d 1158.

U.S. Fish and Wildlife Service must address 1998 study of "Movements and Conservation of Cutthroat Trout," even though review of denial of endangered species listing is generally limited to agency record, where study may have been completed too late to make administrative record, and may explain why number of stream miles in habitat of trout population is important to nonmigratory fish, because extra record evidence may be considered to ascertain whether agency considered all relevant factors. Southwest Ctr. for Biological Diversity v Babbitt (2001, DC Dist Col) 131 F Supp 2d 1.

Decision of Fish and Wildlife Service to dismiss petition seeking to delist certain sucker fish pursuant to 16 USCS § 1533(b)(3)(A) was arbitrary and capricious when administrative record contained evidence that fish populations were substantially increasing. Moden v United States Fish & Wildlife Serv. (2003, DC Or) 281 F Supp 2d 1193, subsequent app, magistrate's recommendation (2008, DC Or) 2008 US Dist LEXIS 115157, adopted, motion gr, request den, summary judgment den, judgment entered (2008, DC Or) 2008 US Dist LEXIS 86810.

Government agency's exercise of deliberative process privilege was upheld as to documents concerning scientific analysis to end that Rio Grande cutthroat trout should not be listed as endangered species. Ctr. for Biological Diversity v Norton (2004, DC NM) 336 F Supp 2d 1149.

In plaintiff environmental group's challenge to failure to list particular fish under Endangered Species Act, 16 USCS §§ 1531-1544, deliberative process privilege applied to Fish & Wildlife Services' internal recommendation discussions, biologist comments on population viability, or suggested revisions to draft; 16 USCS § 1533(b)(1)(A) did not prohibit agency from creating recommendations, draft documents, proposals, suggestions, and other subjective documents that reflected personal opinions during its process, even it had to "rely" only on best scientific and commercial data in reaching its final decision. Ctr. for Biological Diversity v Norton (2004, DC NM) 336 F Supp 2d 1155, review den, app dismd (2005, DC NM) 411 F Supp 2d 1271.

Summary judgment granted against environmental group's challenge of U.S. Fish and Wildlife Service's (FWS) decision under Endangered Species Act (Act) that listing of coastal cutthroat trout was not warranted; FWS considered relevant factors and articulated rational connection between facts found and choice made. Ctr. for Biological Diversity v United States Fish & Wild-Life Serv. (2005, DC Or) 402 F Supp 2d 1198, affd in part and revd in part on other grounds, remanded (2008, CA9 Or) 274 Fed Appx 542.

In rejecting environmentalists' challenge to decision not to list Rio Grande cutthroat trout as endangered, court upheld Fish and Wildlife Service's interpretation of phrase "significant portion of range" in definition of "endangered" to mean portion that was so important to continued existence of species that threats to species in that area could have effect of threatening viability of species as whole. Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271.

In rejecting environmentalists' challenge to decision not to list Rio Grande cutthroat trout (RGCT) as endangered, court agreed that RGCT was not threatened in biologically significant portion of its range, even though its geographic and/or historic range may have been significantly reduced, and that there was neither logical nor legal error in Fish and Wildlife Service's approach to finding that 13 core populations of RGCT were not threatened with extinction in all or significant portion of range due to any of factors under 16 USCS § 1533(a)(1); court could not say that Fish and Wildlife Service's conclusions with regard to four challenged factors under 16 USCS § 1533(a)(1) were arbitrary and capricious or failed to conform to certain minimal standards of rationality. Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271.

Fish and Wildlife Service's (FWS's) refusal to list westslope cutthroat trout as threatened or endangered species under Endangered Species Act, 16 USCS §§ 1532(6), 1532(20), 1533(c), was judicially upheld; its use of morphological rather than strictly genetic method and its inclusion of hybridized fish in its status review was not arbitrary under Administrative Procedures Act, 5 USCS § 706(2)(A), because FWS applied five factors of potential threat to species, including threat of hybridization, under 16 USCS § 1533(a)(1). Am. Wildlands v Kempthorne (2007, DC Dist Col) 478 F Supp 2d 92.

National Marine Fisheries Service (NMFS) was entitled to summary judgment in fishing association's action challenging NMFS's listing of Lower Columbia River (LCR) Coho salmon under 16 USCS § 1533, part of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq.; NMFS did not violate ESA or act arbitrarily under 5 USCS § 706(2)(A) of Administrative Procedure Act in determining that, despite large numbers of hatchery fish, loss of naturally spawning populations, low abundance of extant populations, diminished diversity, and fragmentation and isolation of remaining naturally produced fish conferred considerable risks to LCR Coho salmon evolutionarily significant unit. Marincovich v Lautenbacher (2008, DC Or) 553 F Supp 2d 1237, 67 Envt Rep Cas 1534.

County dike district violated Endangered Species Act because reconstructing tidegates resulted in harm to threatened Chinook salmon, which constituted taking under 16 USCS §§ 1532(19) and 1538(a)(1)(B) in that taking prohibition was extended to salmon under 16 USCS § 1533(d). Swinomish Indian Tribal Cmty. v Skagit County Dike Dist. No. 22 (2008, WD Wash) 618 F Supp 2d 1262.

Pursuant to 16 USCS § 1533(b)(1)(A), best available science concerning Oncorhynchus mykiss (O. mykiss) justified National Marine Fisheries Service's decision to draw distinctions between naturally-spawned and hatchery-born fish, even if both were part of same distinct population segment (DPS), where agency had employed process, set forth in its hatchery listing policy, that gave weight to natural component of DPS, as science required, but also considered all portions of DPS, and science strongly indicated that naturally-spawned and hatchery-born O. mykiss were different and that hatchery fish could have had wide range of effects on long term viability of O. mykiss populations. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.

National Marine Fisheries Service sufficiently justified departing from its past practice of applying its own evolutionary significant unit policy to instead apply joint distinct population segment policy (DPS policy) in deciding to exclude resident Oncorhynchus mykiss (O. mykiss) from distinct population segments where agency's decision was not based on any scientific dispute, and record supported agency's conclusion that more significant separation between resident and anadromous O. mykiss sets them apart from other types of Pacific salmon so that DPS Policy was best fit for evaluating O. mykiss. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.