Feds Don't Submit 'Homework,' Lose Yellow-Legged Frog Ruling

The U.S. Fish and Wildlife Service’s determination that listing the Sierra Nevada Mountain yellow-legged frog as an endangered species was “warranted but precluded” has been rejected by the Ninth U.S. Circuit Court of Appeals.

The Ninth Circuit did not rule on the merits of the decision by the Fish and Wildlife Service (USFWS). Rather, the court ruled that the agency did not follow the Endangered Species Act’s “warranted but precluded” procedure.

Although the Ninth Circuit ruled for environmental groups that appealed a district court’s decision in favor of the USFWS, the court did not go so far as to order the agency to place the frog on the endangered list.

In February 2000, the Center for Biological Diversity (CBD) petitioned the Fish and Wildlife Service to list the yellow-legged frog as an endangered species because, like the already protected red-legged frog, the once-plentiful yellow-legged species was vanishing from much of its historic range. The agency moved slowly, so the CBD sued and in late 2001 a district court ordered USFWS to make a determination on the yellow-legged frog.

In January 2003, the agency published its findings. The USFWS determined that species populations were declining, that isolated populations were likely to become extinct and that threats to the frog were imminent. The agency concluded that listing the yellow-legged frog as endangered was warranted. But the agency further concluded that listing the frog was “precluded by other higher priority listing actions.”

The agency contended that all the funding in its listing program was dedicated to complying with court orders and judicially approved settlement agreements (see , November 2001). So USFWS designated the yellow-legged frog as a “candidate” for future listing.

The CBD and the agency went back to court. This time, District Court Judge Garland Burrell ruled for the federal government. Although USFWS did not follow the exact procedure in the Endangered Species Act, Judge Burrell upheld the “warranted but precluded” determination because the agency’s path could reasonably be discerned.

But a discernable path was not enough for the Ninth Circuit, which overturned Judge Burrell. The Ninth Circuit noted that earlier it had narrowly defined “the circumstances under which the secretary may invoke the excuse of ‘warranted but precluded.’” In (“”), 254 F3d 833, the Ninth Circuit characterized the USFWS’s “warranted but precluded” determination for the Gila chub as “foot-dragging efforts of a delinquent agency” (see , August 2001).

Under §4(b)(3)(B) of the Endangered Species Act and the decision, the “warranted but precluded” finding must be based on the agency’s work on other listings and on an expeditious process. But what the court called the “frog decision,” contained “no determination at all that expeditious progress in listing or delisting other species is being made. … The decision contains no description or evaluation of the data or reasons why listing the frog is actually precluded,” Judge Pamela Ann Rymer wrote for the Ninth Circuit.

The USFWS argued that it had provided detailed support for its determination six months earlier in its 2002 “Candidate Notice of Review” (CNOR) statement, and again in May 2004 when it published the 2003 version of the CNOR. However, the warranted but precluded finding did not refer to the 2002 CNOR, and it could not have referred to the future 2003 CNOR, Judge Rymer noted.

“t may be that the homework was done, but it has to be turned in to the court,” Rymer wrote. “It is insufficient for requisite determinations to be lurking in the administrative record yet be unidentified in the decision itself.”

The matter now returns to the Fish and Wildlife Service for further proceedings.

The Case: , No. 04-16563, 06 C.D.O.S. 9751, 2006 DJDAR 13967. Filed October 18, 2006. The Lawyers: For CBD: Michael Sherwood, Earthjustice, (510) 550-6725. For Kempthorne, David Shilton, Department of Justice, (202) 514-2000.