Jul 082011

The Preble's meadow jumping mouse will be returned to the list of threatened species in Wyoming, in accordance with a federal judge's order (Center for Native Ecosystems v. Salazar, 09-1463-JLK, D. Colo.).

The mouse, in non-jumping mode

The order was probably inevitable, given the withdrawal by the Fish and Wildlife Service of a Solicitor's opinion that had served as the basis for the decision to list the mouse in Colorado but not in the northern part of its range (southern Wyoming). After the opinion was withdrawn, FWS asked U.S. District Judge John Kane to vacate its 2008 listing rule and remand the matter to the agency.

In his 14-page order, Kane took note of a decision last year by U.S. District Judge Donald Molloy which "rejected the Solicitor’s interpretation of the ESA, finding it contrary to the plain language of the statute," Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010). "In a separate opinion, the U.S. District Court for the District of Arizona rejected the statutory interpretation contained in the Solicitor’s memorandum opinion on similar grounds. See WildEarth Guardians v. Salazar, 09-574-PHX-FJM (D. Ariz. Sept. 30, 2010)."

"In light of these developments and because the FWS’s decision to delist the Preble’s in the Wyoming portion of its range was based entirely on this now withdrawn statutory interpretation, [FWS has] filed the instant motion seeking remand and vacatur of the 2008 Amended Listing Decision so that [it] may voluntarily reconsider its decision," the judge noted.

The plaintiffs, called petitioners in the lawsuit, agreed with the service, but the state of Wyoming, the Wyoming Farm Bureau Federation and the Wyoming Stock Growers Association, intervenors in the case, opposed the government motion.

"Seizing upon the [Administrative Procedure Act]'s requirement that an agency action be set aside when it is found unlawful, intervenors argue that a reviewing court may set aside agency action only when it finds the agency’s action unlawful," Kane said.

The judge rejected that argument:

As an initial matter, intervenors misapprehend the import of the APA’s judicial review provision. The language of [5 U.S.C.] § 706(2) is mandatory, but not exclusive. It does not expressly limit a reviewing court’s authority to set aside an agency’s action; it merely requires a reviewing court to do so in certain circumstances. The lack of an express jurisdictional limitation is significant, because, as the Supreme Court has stated, absent an express congressional mandate to the contrary, courts “retain traditional equitable discretion.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982)

In a footnote, Kane said he was "quite frankly, puzzled by the seemingly unquestioning acceptance that judicial vacatur is in any way bound by the APA." The intervenors and the cases they cited "adopt the argument that allowing vacation of a rule without a decision on the merits allows an agency to repeal a rule without providing the opportunity for notice and comment required by the APA."

But "[t]his argument ignores the distinction between judicial and agency action. As noted above, a court’s decision to vacate an agency’s action is not subject to the APA, and an agency’s motion for vacatur is not a fait accompli. As I detail below, the decision to vacate an agency’s decision without an express determination on the merits is achieved through a careful balancing of a variety of equitable considerations."

FWS's 2008 amended listing rule, which conferred threatened status on the mouse only in Colorado, "suffered from significant deficiencies," the judge opined.

Addressing the intervenors' argument that "any error in the promulgation of the 2008 Amended Listing Decision was merely 'legal,' ” Kane stated flatly, "their argument misses the point. It matters not whether the deficiency was 'legal' or 'factual;' in this context the key distinction is between 'substantive' and 'procedural' errors." Said Kane:

The now-withdrawn Solicitor’s opinion resulted in a significant substantive error, because it impermissibly limited the FWS’s consideration of the threats to the Preble’s along political boundaries completely lacking in biological significance. Based on the substantive nature of this error, there is a greater likelihood that the FWS will revise the rule upon remand. See Natural Res. Def. Council v. U.S. Dept. of the Interior, 275 F. Supp. 2d at 1143 (C.D. Cal. 2002). This side of the scale favors vacatur."

The intervenors "cite numerous disruptions that will result from reversion to the 1998 listing decision and the reinstatement of ESA protections for the Preble’s in the Wyoming portion of its range," Kane said, proceeding to summarize. "Specifically, they cite the delay and resultant cost ESA consultation will have on numerous projects contained in the state’s transportation plan, energy development projects on the state’s trust lands, and the state’s agricultural industry. These harms are, however, irrelevant."

The judge cited the landmark Supreme Court decision, TVA v. Hill, 437 U.S. 153, 184 (1978), which said, "'The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost.' In enacting the ESA, Congress definitively skewed the balancing process in favor of species protection, and I cannot ignore this clear command."

Besides, said the judge, "most of the disruptions cited by intervenors can be mitigated fairly quickly.

"For nearly ten years the Preble’s was afforded protection under the ESA, and the State of Wyoming and the FWS developed streamlined procedures allowing for meaningful consultation to be completed in a timely, efficient manner. Upon remand and vactur, [FWS] shall make every effort to consult with the State of Wyoming to amend the
Programmatic Consultation agreement relating to transportation projects to include conservation measures for inclusion in various project types in order to avoid and minimize impacts to the Preble’s and its habitat. Furthermore, the § 4(d) special rule exempting numerous activities from the ESA’s general take prohibitions shall be reinstated. These special rules will alleviate many of the state’s concerns relating to agricultural improvements."

The Center for Native Ecosystems praised the decision. In a news release, wildlife biologist Erik Molvar of the Biodiversity Conservation Alliance in Laramie, Wyo., said, "This is a great day for Wyoming wildlife; restoring protections for the Preble’s meadow jumping mouse will benefit the dozens of other types of wildlife that rely on the streamside habitats of the High Plains for their survival. Given the precarious state of the jumping mouse in Colorado, Wyoming populations represent its best chance to escape extinction, and from the scientific perspective, stripping protections from the Wyoming populations made no sense at all.”


Center for Native Ecosystems page (with links providing background on the years-long controversy over the Preble's)