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Center for Biological Diversity v. Bernhardt

ELR Citation: 51 ELR 20068
Nos. 2:20-CV-1812 JCM (NJK), (D. Nev., 04/21/2021) (Mahan, J.)

A district court granted in part and denied in part BLM's and FWS' motion to dismiss a lawsuit over an environmental group's petition to list a rare wildflower species in Nevada as endangered. The group first argued FWS unreasonably delayed responding to its request for emergency listing of Tiehm's buckwheat. BLM and FWS moved to dismiss, arguing there was no private right to petition FWS to emergency-list the species. The court dismissed the group's claim for lack of jurisdiction. The group next argued BLM unreasonably delayed its response to the emergency listing petition. The agencies again moved to dismiss, arguing the group failed to allege any ongoing agency proceeding or adjudication that warranted action from BLM. The court found the agency's response was not egregiously delayed and thus dismissed the claim. Last, the group argued FWS failed to make a mandatory 12-month finding on its petition to list the wildflower as endangered or threatened under the ESA. The agencies moved to dismiss, arguing the group failed to comply with the ESA's 60-day notice requirement. The court found that the group plausibly alleged an "emergency posing a significant risk to the well-being of any species of fish or wildlife or plants" that sufficiently bypassed the notice requirement, and denied the agencies' motion to dismiss this claim. It therefore granted in part and denied in part the motion to dismiss, and ordered FWS to submit a proposed listing rule and proposed critical habitat rule for the wildflower species within 30 days.