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Biodiversity Legal Found. v. Babbitt

ELR Citation: 28 ELR 21354
Nos. 97-1131, 146 F.3d 1249/46 ERC 2108/(10th Cir., 06/29/1998) Listing priority guidance

The court holds that the U.S. Fish and Wildlife Service (FWS) did not violate Endangered Species Act (ESA) §4(b)(3)(A) when it relied on its 1997 listing priority guidance and failed to make a preliminary 90-day finding on a petition to list the Columbian sharp-tail grouse as endangered. In response to an organization's suit seeking injunctive and declaratory relief to enforce the 90-day finding deadline on the grouse petition, the district court determined that the FWS had adequately demonstrated impracticability due to a funding moratorium and that the FWS acted within its statutory discretion in promulgating the 1997 listing priority guidance.

The court first holds that ESA §4(h)(3) provides the FWS with the authority to promulgate the 1997 listing priority guidance. Thus, to the extent that the organization challenges that authority, the court rejects it. Next, the court holds that ESA §4(b)(3)(A)'s requirement that petitions to list be acted on within 90 days "to the maximum extent practicable" does not impose a mandatory, non-discretionary duty on the FWS. Though the ordinary language of the statute speaks in general terms of the greatest extent feasible or possible, the phrase is ambiguous because neither the statutory language nor its ordinary meaning specifies the circumstances under which the FWS may forego the 90-day deadline. Further, the only thing clear about the statutory provision after looking at its legislative history is its ambiguity, as it is scant and capable of differing interpretations. Thus, the question of whether the FWS may excuse its compliance with the 90-day finding provision because of limited funding is a gap left by Congress that the FWS may fill. Therefore, the court will disturb the FWS' interpretation only if it is inconsistent with the statute. The court then holds that the FWS' implementation of and adherence to the 1997 listing priority guidance are based on a reasonable construction of ESA §4(b)(3)(A) and are entitled to deference. The 1997 prioritization of final listing activities above initial petitions to list is consistent with the language and legislative history of ESA §4(b)(3)(A) and the broader purpose of Congress' recognition that the FWS must retain the ability to order and prioritize its work, particularly when provided limited resources, in order to fulfill its mission adequately. By allowing the FWS to act within statutory guidelines to the maximum extent practicable in limited circumstances. Congress implicitly recognizes that at times mandatory listing actions should be given a higher priority than other listing actions. Absent a petition to list that warrants emergency action, the guidance allows the FWS to allocate its resources to pending petitions to list species that face high-magnitude threats, an action completely consistent with the language and intent of ESA §4(b)(3)(A).

Counsel for Plaintiffs
Neal Levine
University of Denver School of Law
Foote Hall
7150 Montview Blvd., Denver CO 80220
(303) 871-6996

Counsel for Defendants
James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Henry and Brett,1 JJ.