By Janell M. Bogue
In the case of Coos County Board of County Commissioners v. Kempthorne (June 26, 2008) 2008 U.S.App.Lexis 13475, the United States Court of Appeals for the Ninth Circuit reiterated that the appropriate way for a species to be removed from the protections of the Endangered Species Act (“ESA”) is via a petition for delisting. The court held that there is no mandatory duty imposed upon the U.S. Fish and Wildlife Service (“USFWS”) to delist species through the five year review process. (See 16 U.S.C. § 1533(c)(2).)
The case came about because the Board of County Commissioners for Coos County, Oregon (“Board”) filed a citizen suit to compel the USFWS to delist the marbled murrelet. The murrelet is a seabird that lives in old growth forests. The population found in Washington, Oregon, and California (the “Northwest murrelet”) was listed as threatened under the ESA in 1992. The listing was the result of a lawsuit by the Audubon Society wherein a Washington district court found that the Northwest murrelets qualified for listing as a threatened species. The USFWS subsequently listed the birds. (57 Fed.Reg. 45330.)
Under the ESA, the USFWS is required to review listed species every five years and determine whether the listing status should be changed (the “five year review process”). (16 U.S.C. § 1533(c)(2).) Before the Northwest murrelet review took place, the USFWS promulgated a new policy that defined the term “distinct population segment.” Under the ESA, a distinct population segment of a species may be listed as threatened or endangered. The new policy clarified that a distinct population segment must be discrete with respect to “the remainder of the species to which it belongs.” If the population is discrete, then the question becomes whether the population is significant with respect to the species as a whole. The policy was upheld in the case of Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service (2007) 475 F.3d 1136. However, the USFWS realized that some previously listed populations would not meet the criteria in the new policy and it announced that these would be reevaluated on a case-by-case basis.
The five year review process was completed for the Northwest murrelet in 2004 (the “review”). In the review, the USFWS stated that the Northwest murrelet did not qualify as a distinct population segment under the new policy. However, the review also found that the birds were still threatened and that threat had not lessened since the USFWS was directed to list the Northwest murrelet by the Washington district court. The review concluded that there should be no change in its listing status under the ESA.
The Board sued, claiming that the USFWS had a duty to deslist the Northwest murrelets since the population did not meet the criteria to be considered a distinct population segment under the new policy. The district court dismissed the suit and the Board appealed. The Ninth Circuit agreed with the lower court.
The Ninth Circuit court held that the regulations implementing 14 U.S.C. § 1533(c)(2) do not require that a protected species be delisted following a five year review of a species. (See 50 C.F.R. § 424.21.) Although the regulations specify how the reviews will be conducted, they do not import “any of the deadlines from the petition process into the five-year review determination.” The court emphasized that it need not address whether it had the authority to compel the USFWS to publish a final rule delisting the birds, since the USFWS had determined in the five year review that the Northwest murrellet status should not be changed. This determination was made without any reference to the distinct population segment policy. Therefore, the court held that the dismissal of the suit was proper. The Ninth Circuit court did remark, in the conclusion of its opinion, that the Board still had a way to get its sought-after result. It said that the Board had the ability to petition the USFWS for delisting of the birds. The court said:
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. See 360 F.Supp.2d at 1231-33, 1244-45. We are "at a loss to explain the actions of [Coos County]." Id. at 1245. 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 [*61] away, allowing this Court to reach the merits of many of [Coos County’s] claims."
The lesson to take from this case is that courts are very hesitant to impose deadlines for delisting that are not explicitly written into the ESA. The preferred method is to petition for delisting pursuant to the regulations of 16 U.S.C.§ 1533(b)(3).
Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.