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Friends of the Wild Swan v. U.S. Fish & Wildlife Serv.

ELR Citation: 27 ELR 20524
Nos. 94-1318-JO, 945 F. Supp. 1388/(D. Or., 11/13/1996) on remand

The court holds that the U.S. Fish and Wildlife Service's (FWS') failure under the Endangered Species Act (ESA) to address emergency listings of the bull trout and its determination that the magnitude of the threat facing that species is moderate rather than high are arbitrary and capricious. Plaintiff environmental groups challenged FWS' finding that the listing of bull trout was "warranted but precluded" by higher-priority species, and requested emergency listings for the bull trout in 26 aquatic systems and waterbodies. The court rejects FWS' assertion that because it determined that the listing of the species was warranted but precluded it had sufficiently addressed the request for emergency listing. Congress imposed a legal duty on FWS to make prompt use of its emergency listing authority when making a warranted-but-precluded determination. The court holds that FWS' failure to provide any explanation for its denial of the requests for emergency listing was arbitrary and capricious. The court also holds that FWS' determination that the listing of the bull trout is warranted but precluded was arbitrary and capricious. Although FWS explicitly listed the factors that it relied on in determining that the species faced only a moderate threat, several aspects of the record make FWS' reliance on these factors so questionable and internally inconsistent as to render that reliance arbitrary and capricious. The bull trout's widespread range and its existence in protected areas do not reduce the threat of extinction. Also, FWS erred in relying on land management plans of other federal agencies with future effect.

[A prior decision in this litigation is published at 26 ELR 20351. Briefs in this litigation are digested at ELR BRIEFS & PLEADS. II 66469, 66475.]

Counsel for Plaintiffs
Gary K. Kahn
Reeves, Kahn & Eder
4035 SE 52d Ave., Portland OR 97206
(503) 777-5473

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW 5th Ave., Ste. 1000, Portland OR 97204
(503) 326-2101