Case Summary
Issue:
Whether the Fish and Wildlife Service may continue to list or delist a species based upon the threats present across only a “significant portion of [the species’] range,” and not the entirety of the species’ range?
Plaintiff:
Center for Native Ecosystems; Biodiversity Conservation Alliance; Center for Biological Diversity; Defenders of Wildlife; Natural Resources Defense Council
Defendant:
Ken Salazar, Secretary of the Interior; Rowan Gould, Director, United States Fish and Wildlife Service (FWS)
Intervenor:
Wyoming Farm Bureau Federation; Wyoming Stock Growers Association, represented by MSLF
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Case History
In May 1998, the FWS placed the Preble’s Meadow Jumping Mouse (PMJM) on the Endangered Species Act list. In July 2003, the FWS designated 31,000 acres in Colorado and Wyoming, encompassing more than 350 stream miles, as critical habitat for the PMJM. In December 2003, MSLF filed suit in Wyoming federal District Court. Previously, in August 2003, the City of Greeley had filed sued in Colorado federal District Court.
In March 2004, in response to petitions it received in December 2003 demanding that the PMJM be delisted, the FWS stated that continued listing might not be justified. In February 2005, it declared the petitions were warranted and proposed to delist the PMJM. As a result, the lawsuits were stayed from 2004 until mid-2008.
In July 2008, the FWS announced that there are more PMJM in Wyoming and they face fewer threats to survival; thus, the FWS delisted the PMJM in Wyoming but kept the listing in Colorado. Critical habitat designations in Wyoming were eliminated; but those in Colorado, including 230 river-miles encompassing 20,680 acres, remain.
In October 2008, MSLF amended its lawsuit, and, in December 2008, moved it to Colorado federal District Court. In April 2009, the City of Greeley agreed to dismiss its lawsuit after the FWS agreed to revise its critical habitat designation. On June 12, 2009, MSLF moved to dismiss its challenges to the listing decisions and to stay proceedings relating to the remaining critical habitat designation. On June 16, 2009, the district court granted MSLF’s motion.
On June 23, 2009, environmental groups sued the FWS for its decision to delist the PMJM in Wyoming and, in particular, a March 16, 2007, guidance memorandum by the Solicitor of the Department of the Interior defining the phrase “significant portion of [a species’] range,” as that term is used in the ESA, and the authority of the FWS to continue to limit listing decisions to that portion of a species’ range in which ESA protections are necessary.
On July 23, 2009, MSLF filed a motion to intervene on behalf of the Wyoming Farm Bureau Federation and Wyoming Stock Growers Association. On August 25, 2009, the Court granted the motion to intervene. On August 28, 2009, the federal defendants filed their answer.
On October 8, 2009, the FWS’s proposed rule regarding the PMJM was published. The proposed rule greatly expands critical habitat for the PMJM. The comment period for the proposed rule ends on December 7, 2009, and on that date MSLF filed comments.
On December 14, 2009, Native Ecosystems filed a motion to supplement the administrative record, and on April 14, 2010, the district court granted the motion ruling the federal government had failed to designate the record for the Solicitor’s memorandum and should have included various other documents. On April 29, 2010, the district court issued a schedule for production of the record and for briefing.
On August 17, 2010, the federal defendants and Native Ecosystems filed a joint motion for a 45-day extension of time of the briefing schedule, primarily the result of the District of Montana’s decision in Defenders of Wildlife, which held aspects of the Solicitor’s memorandum invalid. Also on August 17, 2010, the district court granted the joint motion and stayed all proceedings until October 14, 2010.
On October 14, 2010, the federal defendants and Center for Native Ecosystems filed a joint status report and proposed schedule under which Center for Native Ecosystems’ opening brief would be due on December 21, 2010. On December 21, 2010, Native Ecosystems filed their opening brief. On January 26, 2011, the federal defendants moved for a 30-day extension in which to file their response brief, which motion was granted on January 27, 2011.
On March 3, 2011, the federal defendants filed a motion for a 60-day stay to reevaluate the Solicitor’s memorandum. On May 4, 2011, the Solicitor withdrew the Solicitor’s memorandum. On April 13, 2011, the federal defendants filed a motion for remand and vacatur of the 2008 delisting rule in light of the withdrawal of the Solicitor’s memorandum, which MSLF opposed with its filing on June 3, 2011.
