Interior's Policy for Listing Species Rejected as Too Slow by 9th Circuit
A Clinton-era Interior Department policy that delayed endangered species petitions filed by the public has been thrown out by the Ninth U.S. Circuit Court of Appeals. The unanimous three-judge panel agreed with environmentalists who said the policy improperly stalled consideration of plants and animals that could qualify for protected status.
Specifically, the court ruled that the Fish and Wildlife Service's "Petition Management Guidance" (PMG) manual, adopted in 1996, conflicted with statutory provisions of the Endangered Species Act (ESA) and with congressional intent by allowing the agency to put citizen requests into limbo for an undetermined period.
In June 1998, the Tucson-based Center for Biological Diversity filed two petitions with the Fish and Wildlife Service requesting that the Interior secretary extend ESA protection to the Chiricahua leopard frog and the Gila chub (a small fish). The Fish and Wildlife Service responded with a letter that said both species were already candidates for listing, so the secretary, under the PMG manual, would take no action. The Interior secretary had listed the chub as a candidate species in 1982, and the frog as a candidate in 1991 — but there had been no final determination on whether protection was or was not warranted.
In August 1999, the Center filed a lawsuit seeking to force the Interior secretary to issue findings that the species either did or did not qualify for protected status. Arizona District Court Judge John Roll issued summary judgement for the Interior Department, finding that the PMG manual satisfied ESA's requirements. (Two months after that decision, the Interior Department proposed to list the frog as "threatened," so that portion of the lawsuit became moot.)
The Ninth Circuit overruled the district court. The Endangered Species Act prescribes two methods of adding or removing species from the protected list: petition by interested people, or an initiative by the secretary. Under the petition route, the secretary has 90 days to decide if the petition presents "substantial scientific or commercial information" that protection or removal may be warranted, and one year to decide whether or not the petition should be granted. If the secretary takes the initiative and places a species on a candidate list, the ESA prescribes no deadlines.
Under the PMG manual, the agency considered any petition regarding a species already listed as a candidate to be superfluous. The agency reasoned that the secretary could ignore those petitions — without explanation — under the ESA's "warranted but precluded" exception. In the lawsuit, the Center argued that this policy compromised the ESA. The Interior Department argued that the ESA was unclear about how to handle petitions for species already under consideration, so the agency could do what it wanted.
The Ninth Circuit sided with the environmentalists. "The statute is not ambiguous, but instead is exquisitely clear, concerning what the Secretary must do when she receives a petition requesting action on a species, " Judge Marsha Berzon wrote for the court.
The Act gives the secretary 12 months to decide after receiving a petition, and the "warranted but precluded" exception does not necessarily apply, the court held. That exception applies only when the Interior Department is actively working on other listings, and that activity actually precludes her from reviewing the petition.
Citing the congressional record, Berzon wrote, "Congress emphasized that providing for the ‘warranted but precluded' designation was not designed to justify ‘foot-dragging efforts of a delinquent agency.'"
Furthermore, under the "warranted but precluded" provision in the ESA, the secretary still must determine within 90 days whether a petition has merit. If it has merit, she must determine within one year whether action is warranted, not warranted or warranted but precluded. And the secretary must publish appropriate findings for whatever she decides. If she rules the request is warranted but precluded, the one-year cycle repeats and she again must publish findings, the court ruled.
"The statutory deadlines thus assure that species tagged for protection are not forgotten in an administrative quagmire, but instead are periodically monitored and reconsidered for listing," Berzon wrote. "The case of both the frog, which the Secretary identified as a candidate in 1991 — nine years before she published a proposed rule to list the species as threatened — and the chub, which has been a candidate for nearly two decades without ever being the subject of formal findings, demonstrates that potentially qualified species may sit on a candidate list for extraordinarily long periods before becoming the subject of protective rules. It was precisely in these situations that Congress intended the petitioning process to ‘interrupt the department's priority system by requiring immediate review.'"
Center for Biological Diversity v. Norton, No. 00-16020, 01 C.D.O.S. 5086, 2001 DJDAR 6271. Filed June 20, 2001.
For the Center: Matt Kenna, Kenna & Hickcox, (970) 385-6941.
For Norton: Mark Haag, Department of Justice, (202) 514-2000.