On May 23, 2019, the Center for Biological Diversity and San Francisco Baykeeper (collectively “Center”) filed a lawsuit against the Fish and Wildlife Service (“Service”) in the United States District Court for the Northern District of California alleging the Service failed to protect eight species under the Endangered Species Act (“ESA”).  The eight species at issue are the longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a plant), Sierra Nevada red fox, red tree vole (North Coast population), gopher tortoise (eastern population), Berry Cave Salamander, and Puerto Rico harlequin butterfly.  Each of the eight species is currently a “candidate” for listing.  The Service previously found that each species warranted protection under the ESA, but that listing was warranted but precluded (“WBP”) due to the need to focus on other higher priority species.    

Under the ESA, a WBP finding can only be made if the Service is making “expeditious progress” to “add qualified species” to the lists of endangered and threatened species, and if the time and resources necessary to make such progress preclude work on other imperiled species.  16 U.S.C. § 1533(b)(3)(B)(iii)(II).  The Center alleges that the Service under the Trump administration cannot demonstrate “expeditious progress” because the Service has only listed 17 species in the last 26 months.  The Center goes on to compare the progress on listing made under previous administrations with similar resources, including 234 species listed as endangered or threatened under the George H. W. Bush administration and 522 during the Clinton administration.

The Center also claims that since each of the eight species are candidate species with outstanding listing petitions, the Service is required every year to make a fresh determination that listing is warranted, not warranted, or warranted yet precluded. Id. § 1533(b)(3)(C)(i).  The Center alleges that the Service has failed to re-review the eight petitions annually.

In addition to its claims under the ESA, the Center alleges that the Service’s lack of expeditious progress and failure to review the eight petitions annually is arbitrary and capricious under the Administrative Procedure Act.

In similar lawsuits that previously have been brought by the Center, the parties have negotiated settlement agreements setting out deadlines for decisions on each of the species identified.  While such settlements require the Service to make final listing decisions, they do not dictate the outcome of those decisions. Instead, the decision as to whether to list the species as threatened or endangered will depend on the outcome of notice and comment rulemaking undertaken by the Service pursuant to any deadlines established through settlement.  Nevertheless, the Service previously has found for each of these eight species that listing is warranted; as a result, it will be important for interested parties to submit additional information to the Service to demonstrate that these species no longer justify listing so as to support a finding that they do not need to be added to the list as either endangered or threatened.