ELR Citation: 42 ELR 20036
No(s). 4:10-CV-229 (D. Idaho Feb 2, 2012) (Winmill, J.)

A district court upheld the FWS' "warranted-but-precluded" finding for the sage-grouse under the ESA. An environmental group challenged the “precluded” portion of the “warranted-but-precluded” decision, focusing on a key finding by the Director of the FWS that the threats to the sage-grouse were merely “moderate” rather than “high.” This finding, which the group alleges was based on politics rather than science, essentially guaranteed that the listing would be "precluded." While the court agreed that the initial recommendation of the FWS Regional Director was clearly arbitrary and capricious, since it was offered before receiving any scientific input, the record also contains substantial evidence that the threats to the sage-grouse are high and immediate. Thus, the director's subsequent decision was based on sound science and cured the significant deficiencies of the initial recommendation. The court, therefore, upheld the director's decision that the threat level to the sage-grouse falls into the moderate category. The court also upheld the director's certification that the FWS is making expeditious progress on its ESA duties in order to place the sage-grouse in the warranted-but-precluded category. The court noted that by no commonsense measure of the word "expeditious" has the FWS made expeditious progress in its ESA duties. Nevertheless, the FWS has recently committed to reducing the backlog and has made specific commitments regarding the sage-grouse. Because of these commitments, the court upheld the agency's certification that it is making expeditious progress. But if those commitments prove unreliable, the court will quickly revisit its findings upon prompting from any party.