Friday, June 27, 2008

Coos County Board of County Commissioners v. Kempthorne

Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35634. In summary form, the Appeals Court says, "We are asked to decide whether the Fish and Wildlife Service (FWS) has an enforceable duty promptly to withdraw a threatened species from the protections of the Endangered Species Act (the ESA or the Act), 16 U.S.C. §§ 1531-1544, after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty."

The suit rests on the results of a FWS species status review of the marbled murrelet, a rare seabird that nests in mature and old-growth forests. The murrelets living in Washington, Oregon, and California (the tri-state murrelets) are the protected population.
The tri-state murrelets, and only the tri-state murrelets, were listed under the ESA as a “threatened species,” after the detailed consideration required by the statute. The five-year review of the tri-state murrelet listing, released in 2004, concluded that the tri-state murrelets do not meet the definition of a “distinct population segment,” one of the population categories which may be protected under the ESA, but determined that they nonetheless remained threatened.

Coos County maintains that this cautious approach to species protection is illegal, and that, instead, FWS had a mandatory duty promptly to remove the tri-state murrelets from the ESA’s threatened species list, “delisting” the birds, as a result of the Five-Year Review. Seizing on a statutory deadline for “promptly publishing” proposed regulations in response to a citizen petition so warranting, Coos County argues that FWS had such a duty here and must follow the same deadline, even though no petition has been filed. The Ninth Circuit disagreed.

In a 40-page opinion, the Appeals Court concludes, "In sum, our view of Coos County’s suit resembles that of the court in Wyoming v. U.S. Dep’t of the Interior, which also considered an attempt to avoid the petition process through an effort to establish a “mandatory duty to delist” by other means. We are “at a loss to explain the actions of [Coos County].” It could easily have filed a delisting petition -- years ago. 'This action, if it had been taken, would have forced the Federal Defendants to make choices under hard deadlines set by Congress . . . . and much of the Federal Defendants’ arguments presented here would have melted away, allowing this Court to reach the merits of many of [Coos County’s] claims.' If Coos County wishes to force FWS to act swiftly on delisting the tri-state murrelets, the petition process is open to it."

Access the complete opinion (
click here).