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Federal Agency Told It Can't Avoid 1-Year Deadline To Decide Listing

The U.S. Fish & Wildlife Service cannot ignore the one-year deadline to decide on a petition for protecting a species under the Endangered Species Act, the Ninth U.S. Circuit Court of Appeals has ruled. The court said the agency's practice of taking many years to decide on petitions for endangered species listings violated the law. Under the Endangered Species Act (ESA), citizens can present petitions to the Interior Department (the Fish & Wildlife Service's parent agency) asking that a plant or animal receive protected status. The federal regulators then have 90 days "to the maximum extent practicable" to make an initial determination on whether a petition presents enough information to deserve further study. If the initial determination is positive, the agency has 12 months from the date of the petition filing to decide whether a listing of the species under the ESA is warranted. The Fish & Wildlife Service has used the "maximum extent practicable" language as a loophole to go the beyond the 90-day deadline regularly. In fact, the agency can take years to make the initial determination. "However, if that determination is positive, the Service is already in violation of the twelve-month deadline for the final determination," Judge Johnnie Rawlinson wrote for the three-judge appellate panel. "That is exactly what happened in this case." Starting in 1995, the environmental groups in this case presented petitions for four species: the Spalding's catchfly, the southern California population of the mountain yellow-legged frog, the Great Basin redband trout, and the yellow-billed cuckoo. The Fish & Wildlife Service said prioritizing under a tight budget forced the agency to delay decisions on the petitions (see CP&DR Environment Watch, November 2001), so the environmental groups sued to force action. In what appeared to be a conflicting decision, Oregon District Court Judge Garr King ruled that the Endangered Species Act gave the Fish & Wildlife Service discretion to make an initial finding after the 12-month deadline for issuing a final warranted/not warranted decision on listing. However, Judge King also refused to let the agency go beyond the 12-month deadline for making the actual warranted/not warranted decision. King said the court did not have discretion to extend the permitted time. Both the environmental groups and the federal government appealed to the Ninth Circuit, which then ruled squarely for the environmentalists. "Under the Service's interpretation, it has 90 days ‘to the maximum extent practicable' to make the initial listing determination … but if it is not practicable to complete the determination within 90 days, the finding may be delayed indefinitely. We disagree with the Service's interpretation," Rawlinson wrote. That interpretation would render the 12-month deadline for a final decision inoperative, the court ruled. Rawlinson pointed to the legislative history as evidence that Congress wanted quick decisions on endangered species petitions. "While the Service asks us to embrace an interpretation of the ESA in which listings could admittedly take years, it is apparent that Congress passed the 1982 amendments for the very purpose of curtailing the process," Rawlinson wrote. The Ninth Circuit rejected a number of arguments presented by the Fish & Wildlife Service. The agency argued that the environmental groups lacked standing to bring the lawsuit and that, because the agency has since decided on the petitions in question, the lawsuit was moot. But the court ruled the groups could pursue the lawsuit. "Appellants' desire to use, observe, and study the stated plant and animal species is undeniably a cognizable interest for purpose of standing," Rawlinson wrote. Plus, the Fish & Wildlife Service's failure to act threatened the groups' interests. Neither was the case moot, the court held. The same groups have battled with the agency before on this issue, plus "[t]hey have pending petitions, and the Service continues to interpret the statutory provisions at issue to allow it to delay action indefinitely." The appellate court also rejected the Fish & Wildlife Service's argument that the lower court could have allowed the agency to go beyond the 12-month deadline for final action. The lower court's decision was necessary to carry out the intent of Congress, the Ninth Circuit ruled. "The court had no discretion to consider the Service's stated priorities," Rawlinson wrote. The Case: Biodiversity Legal Foundation v. Badgley, Nos. 00-35076, 00-35089, 02 C.D.O.S. 2553, 2002 DJDAR 3129. Filed March 21, 2002. The Lawyers: For the foundation: Stephanie Parent, Pacific Northwest Environmental Advocacy Center, (503) 768-6707. For the Fish & Wildlife Service: M. Alice Thurston, Department of Justice, (202) 514-2000.
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