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Friends of the Wild Swan v. Ashe

ELR Citation: 44 ELR 20112
Nos. 13-57-M-DWM, (D. Mont., 05/08/2014) (Molloy, J.)

A district court held that FWS' delay in developing and implementing a recovery plan for the Canada lynx, which was listed as threatened in 2000, is unreasonable. The ESA directs FWS to prepare a recovery plan for listed species but does not include a timetable or indication of the speed with which the recovery plan should be developed. Under FWS' internal time line, a recovery plan should have been in place in September 2002. FWS conceded that the development and implementation of a recovery plan is a mandatory duty and that a recovery plan for the lynx has not been developed or implemented, but argued that the delay was not unreasonable under the circumstances. FWS maintained that its development of a recovery plan is contingent on publication of the final rule for lynx critical habitat, but that the designation of lynx critical habitat has been repeatedly litigated ever since the species was listed as threatened. In addition, it claimed that the lynx is a low priority species because there is a high potential for recovery and a low degree of threat, and that FWS must balance the needs of the lynx against the needs of 20 other species that also lack recovery plans but have higher priority numbers. But FWS cannot delay its statutory obligation indefinitely, and even in the face of competing priorities, FWS' justifications for the delay "become less persuasive the longer the delay continues." The court, therefore, ordered FWS to file a proposed schedule for completion of recovery planning within 30 days. The plaintiffs will then have 15 days to file objections to the proposed schedule, after which the court will set a firm schedule by which the Service must comply.