ELR Citation: ELR 20194
No(s). 93-0168-E-HLR (D. Idaho Dec 14, 1993)

The court sets aside a final decision by the U.S. Fish and Wildlife Service (FWS) to list the Bruneau hot springsnail as an endangered species under the Endangered Species Act (ESA). The court first holds that under the ESA, once a proposal is made to list a species as threatened or endangered, the Secretary of the Interior must, within one year of publication of the proposal, either promulgate a final rule listing the species, formally extend the one-year period by six months, or withdraw the proposed regulation. If the proposed listing is not promulgated as a final regulation within the one-year period (or 18 months if an extension is declared), the proper course is for the Secretary to make a finding that there is insufficient evidence at that time to justify a listing and immediately withdraw the regulation. The court holds that FWS acted arbitrarily and capriciously by waiting seven-and one-half years after the initial listing proposal before issuing its final listing rule. The court holds, however, that FWS' failure to publish a general notice and the complete text of the proposed rule in the Federal Register at least 90 days before the effective date of any regulation did not constitute de facto withdrawal of initial proposal. The court holds that notice of the proposal given to one county commissioner did not satisfy the ESA's requirement of notice to the commission. The court holds that the FWS acted arbitrarily and capriciously by failing to allow public review of a U.S. Geological Survey (USGS) report on which FWS based its proposed listing and by providing a 10-day public comment period on the proposed final listing during the Christmas holiday at a critical stage of the listing process. The court also holds that FWS failed to consider and respond adequately to comments received from the public during the 10-day period, because its response to comments relied heavily on the USGS report, which was not released to the public and which was later found to be seriously flawed. Additionally, the final rule was drafted and sent before the last comment period had opened. Finally, the court denies plaintiffs' motion for summary judgment on their challenge to the scientific and factual basis of the final listing decision, finding that FWS articulated a rational connection between the factors identified and the choice made.

Counsel for Plaintiffs
Susan E. Buxton
Davis, Wright & Tremaine
702 W. Idaho St., Ste. 700, Boise ID 83702
(208) 338-8200

Counsel for Defendants
John L. Marshall
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000