Endangered Species Law & Policy

The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA):

• In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis). The court held that the Service violated the ESA when it delisted the Greater Yellowstone grizzly distinct population segment (DPS) without any analysis of how that action would affect other protected grizzly bear populations in the lower 48 states.  The court held that, in failing to do so, the Service entirely failed to consider an important aspect of the problem.  The court also held that the Service acted arbitrarily and capriciously in dropping a key commitment for monitoring threats to the Greater Yellowstone grizzly, asserting that by doing so the Service negotiated away its obligation to apply the best available science.  The court stated that it dropped the commitment in order to reach consensus for planned grizzly bear protections with the states of Wyoming, Idaho, and Montana.  The court’s decision restores ESA protections for the Greater Yellowstone DPS.
• In Colorado v. U.S. Fish and Wildlife Service, 15-cv-00286-CMA-STV, the U.S. District Court for the District of Colorado held (pdf) that the Service complied with federal law when it listed the Gunnison sage grouse (Centrocercus minimus) as threatened under the ESA four years ago. Plaintiffs, including the states of Colorado and Utah, argued that the Service violated the Administrative Procedure Act (APA) by not allowing for public comment on a key population analysis that the Service relied on for its decision to list the species.  The court disagreed with plaintiffs that this was reversible error, stating that the study supplemented previously existing data (i.e., logically outgrew from it), was not the critical basis on which the Service relied to reach its ultimate determination, and plaintiffs were not prejudiced from the non-disclosure.  The court also upheld the Service’s concurrent designation of 1.4 million acres of critical habitat for the Gunnison sage grouse.
• The United States Supreme Court recently heard argument in Weyerhaeuser Company v. U.S. Fish and Wildlife Service, which involves the Service’s designation of critical habitat for the dusky gopher frog (Lithobates sevosus). Weyerhaeuser Co. challenged the Service’s designation of 1,500 acres of private land in its critical habitat designation, despite the fact that the species does not currently reside in the designated habitat.  Moreover, there is a dispute regarding whether the private land must be modified to support the species.  Argument focused on the limit of the Service’s authority to designate critical habitat in light of the remote connection of the species to the private property at issue.  The U.S. Circuit Court of Appeals for the Fifth Circuit has ruled that the Service’s interpretation of habitat to include the 1,500 acres warrants deference.  Due to Justice Kennedy’s retirement from the Court, the decision could result in a 4-4 split, which would result in upholding the Fifth Circuit’s ruling in favor of the Service’s designation.