[co-author: Jacob Grogin]*
On May 17, 2021, the United States Court of Appeals for the Ninth Circuit held that a U.S. Fish and Wildlife Service (Service) rule, requiring that affected states receive a 30-day notice of an intent to file a petition to list a species as endangered or threatened, is inconsistent with the Endangered Species Act (ESA). See Friends of Animals v. Haaland, Case No. 20-35318 (9th Cir. May 17, 2021); 50 C.F.R. § 424.14(b). In reaching its decision, the Ninth Circuit reviewed the Service’s rulemaking under a two-step framework established by the Supreme Court in the landmark case Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.: (1) whether Congress clearly spoke to the question at issue in the authorizing legislation; and, if not, (2) whether the agency’s construction of its rule was reasonable. The rule survived step one because the ESA is silent on pre-petition procedures and notice requirements. However, the Court held the rule was not reasonable because it created a procedural hurdle for petitioners that did not comport with the ESA. In this case, the Service used the 30-day notice rule to reject a petition that complied with the ESA in all other respects except the 30-day notice rule, leading the Court to find the rule inconsistent with the ESA.
Friends of Animals (Friends) filed a petition to list the Pryor Mountain wild horse (Equus ferus caballus) as a threatened species in 2017, contending it is threatened by curtailment of the horses’ habitat range, inadequacy of existing regulatory mechanisms, and political pressure to remove or dispose of free-roaming wild horses. The horse’s range spans Montana and Wyoming, and it represents a unique, Old-World Spanish genetic lineage. The Service notified Friends that its petition failed to include required communications to state agencies in the affected states, and therefore would not be considered.
Section 4 of the ESA establishes the process for listing a species: within 90 days after receiving a petition to list a species, the Secretary of the Interior shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. 16 U.S.C. § 1533(b)(3)(A). If the 90-day finding demonstrates that the petition warrants action, the Service (or the National Marine Fisheries Service) undertakes a 12-month review to determine whether to list the species.
The 30-day notice rule modified this process. It required a petitioner to provide state agencies responsible for the management and conservation of fish, plant, or wildlife resources in each state where the species occurs a copy of the listing petition at least 30 days prior to submitting the petition to the Service, and required the petitioner to append any data or written comments from those state agencies to the petition. 80 Fed. Reg. at 29,288 (May 21, 2015). The rule gave affected states “the opportunity to submit data and information to the Service[] in the 30-day period before a petition is filed” that the Service could then rely on in its 90-day review. 81 Fed. Reg. at 66,465. The 30-day notice rule was intended to seek input and information from affected states on the front end of the listing process, with a goal to make the process both more efficient and more thorough.
The 90-day finding period is meant for the Service to consider whether the petition presents significant information to warrant a 12-month review. Thus solicitation of outside information not otherwise readily available, as the pre-file notice rule required, is contrary to the ESA.
Friends filed suit after Service used the 30-day notice rule to deny Friends’ petition to list the Pryor Mountain wild horse. The district court granted summary judgment for the defendants, but the Ninth Circuit reversed and remanded the case to the district court with directions to enter summary judgment in favor of Friends.
*summer associate
