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Environmentalists, Agencies Split 2 Rulings On ESA Interpretation

Environmental advocates challenging federal agency interpretations of the Endangered Species Act were victorious in one case at the Ninth U.S. Circuit Court of Appeals, but lost a second case. The late-2002 decisions both came on 2-1 rulings, and the decisions appeared in one aspect. Environmentalists won a case involving the U.S. Fish & Wildlife Service's interpretation of a statutory deadline for making an Endangered Species Act (ESA) determination on a species. The court struck down the agency's practice that gave the agency an indeterminate amount of time to act on a petition for a species listing. In the second case, a different panel of the Ninth Circuit ruled that the U.S. Forest Service could continue to allow cattle to graze in endangered species habitat while the agency reviewed whether the grazing would impact the species. The first case stemmed from environmentalists' submission to the Fish & Wildlife Service (USFWS) of four petitions to list as threatened or endangered four species: the Spalding's catchfly, the mountain yellow-legged frog, the Great Basin redband trout, and the yellow-billed cuckoo. Environmental groups submitted the four petitions from 1995 to 1998. The agency did not take final action on the petitions, so the groups sued. District Court Judge Garr King ruled that the Fish & Wildlife Service had discretion under the Endangered Species Act to delay findings on whether listing of a species is warranted until after the statutory 12-month deadline. However, Judge King also refused to grant the USFWS request for additional time to make court-ordered decisions on three species. Each side appealed the portion of the case it lost. The split Ninth Circuit panel ruled squarely for environmentalists. The issue is a familiar one to ESA litigation. Once a petition to add or remove a species from ESA listing is submitted to a responsible agency, the agency has 90 days to determine whether there is enough information to warrant further review. If so, the agency has one year from the date the petition was submitted to determine whether the species listing is warranted, not warranted, or warranted with exceptions. The Fish & Wildlife Service pointed to language in the ESA that requires action by the 90-day deadline "to the maximum extent practicable;" therefore, the agency argued, it has discretion to postpone action on the petition indefinitely. But the Ninth Circuit said the USFWS's interpretation would render the statutory one-year deadline for a final decision inoperative. "We rule that Congress intended to limit the flexible deadline governing the initial listing determination by enacting the firm deadline for making the final determination. Both determinations must be made within one year," Judge Johnnie Rawlinson wrote for the majority. The court rejected USFWS arguments that the petitioners did not have standing and that the case was moot because the agency made decisions on the four species after the litigation was initiated. The court held that the environmental groups had standing because their members desire "to use, observe and study the stated plant and animal species." Moreover, the parties had an ongoing conflict over interpretation of this portion of the ESA, the court ruled. As to mootness, the court ruled that the "repetition/evasion exception" was applicable because in at least five other cases, the agency made listing determinations after a lawsuit was filed. "As the district court noted: ‘Although the species at issue change, these parties have been through the same controversy many times, with the lawsuits appearing to spur the [Service] into action,'" Rawlinson wrote. In a dissent, Judge Susan Graber wrote that the environmental groups did not have standing because they did not present evidence they had been harmed. Plus, Graber wrote, the USFWS's species determinations made the lawsuit moot anyway. She found that "the pleadings and the record do not establish a substantial, ongoing dispute between the parties" over the ESA. The second case involved livestock grazing in the habitat of the loach minnow, a species listed as threatened under the ESA. Environmental groups asked a federal judge to block the Forest Service (USFS) from allowing grazing while the agency was studying the grazing's impact on the rare fish. They argued that Section 7(a) of the ESA prohibited the USFS from allowing an activity during the "consultation" process, which involved a biological opinion and an examination of alternatives by the USFWS. Environmental groups argued that Section 7(a) required the court to issue an injunction until the consultation process was complete. District Court Judge John Roll refused to issue the injunction. Although he found that the USFS never completed the consultation process on the grazing allotments in question, there had not been a showing of irreparable harm, he ruled. Allowing the grazing was consistent with Section 7(d) of the ESA because the record showed that habitat conditions were improving on the grazing allotments, Judge Roll ruled. The court also balanced the hardships between the parties. The Ninth Circuit upheld Roll, although it did find that a balancing of hardships was inappropriate. The majority ruled that the case "does not present a ‘substantial procedural violation'" that triggered an automatic injunction. This was a case where "non-jeopardizing action" may take place during the consultation process under Section 7(d). "This case is not one where once the action is initiated there can be no turning back, as in a case where timber is cut, or wherein the action will unquestionably make it unlikely that the species will survive," Judge William Bertelsman wrote for the majority. "The district court noted that the Forest Service was implementing mitigations to ensure that the cattle grazing would have little, if any, impact on the loach minnow while formal consultation was taking place," Bertelsman continued. "The consultation was ongoing and was nearing completion." In a dissent, Judge William Canby Jr. wrote that the court cannot make biological decisions. "I do not believe that Section 7(a)(2) would permit actions that might threaten members of endangered species even if those actions were reversible and thus not within the proscription of Section 7(d)," he wrote. The court in both of these cases cited the same precedents, but made different interpretations. The cases were Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), and Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987). The court in the case involving the USFWS listings noted that Tennessee Valley, Marsh and the ESA made clear that the court must issue an injunction for Section 7 violations and that the normal discretion of the court was foreclosed. But in the grazing case, the court ruled that Tennessee Valley was distinguishable because it involved irreparable harm. And Marsh, the court ruled, carved out the exception for non-jeopardizing actions. First Case: Biodiversity Legal Foundation v. Badgley, Nos. 00-35076, 00-35089, 02 C.D.O.S. 10902, 2002 DJDAR 12632. Filed November 4, 2002. The Lawyers: For BLF: Daniel Rohlf, Pacific Northwest Environmental Advocacy Center, (503) 768-6600. For Badgley, M. Alice Thurston, Department of Justice, (202) 514-2000. Second Case: Southwest Center for Biological Diversity v. United States Forest Service, Nos. 01-16092, 01-16277, 02 C.D.O.S. 10101, 2002 DJDAR 11530. Filed October 2, 2002. The Lawyers: Southwest Center: Susan Daggett, Earthjustice Legal Defense Fund, (303) 623-9466. For USFS: Sandra Slack Glover, Department of Justice, (202) 514-2000.
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