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Coos County Bd. of County Comm'rs v. Kempthorne

ELR Citation: 38 ELR 20153
Nos. No. 06-35634, (9th Cir., 06/26/2008)

The Ninth Circuit held that the U.S. Fish and Wildlife Service (FWS) does not have an enforceable duty to promptly withdraw the threatened marbled murrelet from the protections of the Endangered Species Act (ESA) after its five-year review found that the species does not fit into one of the several types of population categories protected under the Act. Murrelets living in California, Oregon, and Washington—the tri-state murrelets—were listed under the ESA as a threatened species. The FWS' five-year review of the listing concluded that the tri-state murrelets do not meet the definition of a "distinct population segment," one of the population categories that may be protected under the ESA, but the agency determined that they nonetheless remained threatened because they occupied a significant portion of the range of the entire species. A county filed a citizen suit arguing that the FWS should have promptly removed the tri-state murrelets from the list of threatened species. The court rejected the claims. The FWS' five-year review determination did not implicate §4(b)(3)(B)(ii)'s requirement to “promptly publish” a proposed rule within 12 months after receiving a petition to alter a species' listing status because the county has not filed a petition to alter the species' listing. If the county wishes to force the FWS to act swiftly on delisting the tri-state murrelets, the petition process is open to it.