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Center for Biological Diversity v. Norton

ELR Citation: 31 ELR 20693
Nos. No. 00-16020, 254 F.3d 833/(9th Cir., 06/20/2001)

The court holds that the U.S. Fish and Wildlife Service's (FWS') petition management guidance policy violated the plain terms of the Endangered Species Act (ESA) and that the Secretary of the Interior improperly relied on the policy when she refused to issue 12-month findings in response to the group's petitions to list two species under the ESA. The policy provides that a petition for an action on a species identical or equivalent to a pending petition does not require a response in the Federal Register. Instead, the policy only requires a 30-day response informing the petitioners of the prior petition. The policy also equates species identified as candidates for listing with those species designated "warranted but precluded" under ESA §4(b)(3)(B)(iii). Here, the two species at issue were already candidate species when the group submitted its petitions, but the Secretary, relying on the policy, never issued findings.

The court first holds that the ESA is not silent or ambiguous on how the Secretary of the Interior should handle petitions to list species already under consideration as candidates. The ESA states that within 90 days after receiving the petition, the Secretary shall make a finding as to whether the petition presents substantial information indicating that the petitioned action may be warranted. The ESA further provides that within 12 months of the petition's receipt, the Secretary shall find that the petition is warranted, not warranted, or warranted but precluded. The Secretary's designation of candidate status does not fulfill the requirements for a finding of warranted but precluded. A warranted but precluded finding requires a description of the reasons for the finding. The Secretary's one-line notice in the Federal Register that the species has been designated as a candidate does not fulfill this obligation. The court next holds that the Secretary failed to fulfill her ESA obligations when she made no 12-month finding in response to the group's petition. The required findings accompanying a warranted but precluded finding provide the basis for judicial review of the Secretary's decision. The Secretary's one-line candidate designation, which failed to explain the delay in filing a final rule, is not equivalent to a warranted but precluded finding. Insofar as the Secretary relied on the policy to permit a truncated process, the policy is inherently inconsistent with the ESA's specific judicial review provisions for warranted but precluded findings. The court then holds that the policy's lack of deadlines for action on species subject to petitions is inconsistent with the ESA's specific time limits under which the Secretary must make a warranted or warranted but precluded decision. Because the policy allows the Secretary to sidestep the prescribed requirements, it is inconsistent with the ESA.

Counsel for Plaintiff
Matt Kenna
Kenna & Hickcox
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Defendant
Mark R. Haag
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Berzon, J. Before Trott and Thomas, JJ.