Endangered Species Law & Policy

Recently, the United States District Court for the District of Montana ordered (pdf) the U.S. Fish and Wildlife Service (Service) to develop a timeline for completion of recovery planning for the Canada lynx (Lynx canadensis). The court determined that the Service’s purported justifications for not developing and implementing a recovery plan for the species were insufficient in light of its statutory duty and its own internal guidelines setting forth a timetable for recovery planning.

In Friends of the Wild Swan v. Ashe, 2014 U.S. Dist. LEXIS 65378 (D. Mont. 2014), plaintiffs alleged that the Service had unreasonably delayed preparing a recovery plan for the Canada lynx and sought a court order compelling the Service to prepare a plan in accordance with a specific deadline. The Endangered Species Act (ESA) requires that the Service designate critical habitat for any species listed as threatened or endangered, concurrent with listing. Further, it requires the Service to develop and implement a recovery plan for any listed species, but, notably, it does not provide a timetable for doing so. The Service listed the Canada lynx as threatened under the ESA in 2000, but did not designate critical habitat at that time or develop a recovery plan. The Service contended that due to the species’ low priority and the Service’s limited resources, recovery planning could not be completed until publication of the final rule designating the lynx’s critical habitat, which according to the Service has been dogged by litigation at every turn.

After rejecting the Service’s challenge to plaintiffs’ standing, the court explained that because the ESA does not specify a standard of review, judicial review is conducted under the Administrative Procedure Act (APA), which permits a reviewing court to compel agency action that is unreasonably delayed. Further, because the ESA does not supply a timetable for preparation and implementation of a recovery plan, the court found that the Service’s delay in developing a recovery plan should be governed by the rule of reason.

Though not binding on the Service, the court used the Service’s own guidelines to evaluate the reasonableness of the Service’s delay. These guidelines provide that a recovery outline for a species be submitted to the Regional Office within 60 days of listing; that the outline be approved within 90 days of listing; that a draft recovery plan be prepared for public comments and peer review within 18 months of listing; and that a final recovery plan be issued within 30 months of listing. Based on these guidelines, a recovery plan for the Canada lynx should have been in place in September 2002.

The court dismissed the Service’s argument that development of a recovery plan is necessarily contingent on publication of a final rule designating critical habitat for the species, and that the delay is not unreasonable because the species is a low priority with a high potential for recovery and low degree of threat. It stated that under this approach a recovery plan for the lynx could potentially never be developed, and the Service cannot delay its obligation indefinitely.

The court also rejected the Service’s longstanding claim that it had limited financial resources to both finalize the species’ critical habitat and begin recovery planning, stating that such justification was no longer persuasive in light of the extended passage of time (over a decade). The court then found that as the Service has repeatedly stated that it will initiate recovery planning for the lynx, and that, based on its most recent self-declared timeline of initiating the recovery planning process by close of 2014, requiring completion of recovery planning on its represented timeframe will not bias its ability to balance competing interests. The court thus held that the Service was bound by a deadline for recovery planning unless it finds and documents that such a plan will not promote conservation of the lynx. The court ordered the Service to file a proposed schedule for completion of recovery planning within 30 days of its decision.

The court’s decision in this case is notable because it diverges from other district court decisions in the Ninth Circuit regarding the Service’s duty to prepare and implement recovery plans for listed species, which have generally shown considerable deference to the Service’s timetables for recovery planning. For example, in Conservation Northwest v. Kempthorne, 2007 U.S. Dist. LEXIS 46089 (W.D. Wash. 2007), the court held that it did not have jurisdiction to decide whether there was an unreasonable delay in implementation of the North Cascades Grizzly Bear Recovery Plan, originally issued in 1982 and revised in 1993, because the Service’s duty to implement all terms of a recovery plan in a timely manner is a discretionary one. In Center for Biological Diversity v. Bureau of Land Management, 2014 U.S. Dist. LEXIS 46994 (N.D. Cal. 2014), while the court held that the Service’s requirement to prepare a plan was mandatory, not discretionary, it also ultimately deferred to the Service’s timeline for preparing a recovery plan for the Peirson’s milk-vetch. The milk-vetch had been listed in 1998, but the Service did not anticipate finalizing a recovery plan until July 31, 2019. The court noted that it was concerned about the Service’s failure to issue a recovery plan for the species, but did not hold that the more than 20 year delay was unreasonable.