ELR Citation: 52 ELR 20064
No(s). CV 20-181-M-DWM and CV 20-183-M-DWM (D. Mont. May 26, 2022) (Molloy, J.)

A district court granted FWS' motion for voluntary remand in a challenge to its 2020 decision to withdraw a 2013 proposed rule to list the wolverine as a threatened distinct population segment (DPS) in the contiguous United States under the ESA. Environmental groups argued the withdrawal was based on an unlawful DPS determination and an unlawful threat evaluation, and that FWS failed to use the best available science, used a definition of "foreseeable future" that was inconsistent with the ESA, and failed to evaluate whether the listing was warranted in a "significant portion of" the wolverine's range. The Service moved for voluntary remand without vacatur, but the groups argued vacatur was warranted because FWS essentially admitted to "disregarding key scientific studies" and made errors that "violate[d] the fundamental requirement of the ESA." The court found that FWS' own reasons for remand implicated the substantive scientific and factual basis of the agency's decision, and that the groups' concerns were not procedural errors that could be remedied without further explanation. Moreover, the court found it troubling that the studies the Service contended now warrant further review existed at the time it made its withdrawal decision, but were not considered then. It granted FWS' motion for voluntary remand, vacated the 2020 withdrawal, and remanded to the agency to submit a new final listing determination.