ELR Citation: ELR 21265
No(s). s. 94-35164, -35230 (9th Cir. Jun 29, 1995)

The court holds that Endangered Species Act (ESA) §4(b)(6) does not bar the U.S. Fish and Wildlife Service (FWS) from listing an endangered species after the 18-month time limit for listing has expired, but FWS violated Administrative Procedure Act (APA) 5 U.S.C. §706(2)(D) by failing to make publicly available a draft U.S. Geological Survey (USGS) study on which FWS relied in listing the Bruneau hot springsnail. The court first holds that the district court properly granted intervention as a matter of right to two citizen groups under Fed. R. Civ. P. 24(a)(2). The motion for intervention was timely, because the groups filed the motion before any hearings or rulings on substantive matters and the defendants did not contend that the intervention was prejudicial. The groups have an interest in the present litigation, because they have been active in the process FWS went through to list the springsnail as an endangered species, even filing a suit to compel the FWS to make the final decision on the proposed listing rule. Not granting intervention would practically impair the groups' ability to protect their interest, because disposition in the present action would impair their ability to protect their interest in the springsnail and its habitat. And the party on whose side the groups are intervening would inadequately represent their interest, because FWS was neither capable of or willing to make the groups' arguments. The court holds that the groups have standing to bring this appeal, because they have an invasion of a legally protected interest that is concrete and particularized—at least some members of both groups live in Idaho and visit the Bruneau Valley area in which the springsnail is found. The groups have shown a causal connection between the injury and the conduct complained of, because the potential threat of harm to the springsnail is traceable to the district court order setting aside the endangered species listing. And they have shown a redressable injury, because this injury would be redressed if the listing is put back into place.

Addressing the merits of the action, the court holds that although the statutory term "shall" in ESA §4(b)(6) suggests that the 18-month time limit is mandatory, failure of an agency to act within a statutory time frame does not bar subsequent agency action absent a specific indication that Congress intended the time frame to serve as a bar. Legislative history accompanying the 1982 amendments to the ESA indicates that Congress passed the amendments because of concern about the low number of additions to the list of endangered species. The court holds that the Secretary of the Interior can still list a species after the 18-month statutory requirement has expired, because the time requirement is designed to be an impetus to act rather than a prohibition on action taken after the time expires. The court holds that the passage of seven years between the initial proposed listing and the final listing decision does not render FWS' conduct arbitrary and capricious, because FWS followed the mandated procedures after obtaining the congressionally ordered studies on the springsnail habitat to determine the reasons for its decline.

The court holds that FWS violated 5 U.S.C. §706(2)(D) by making its listing decision "without observance of procedure required by law," because it failed to provide the public with an opportunity to review a USGS report containing key data on which FWS relied in deciding to list the springsnail as endangered. Based on the record, the court holds that the USGS report was not available to the public at the time FWS made the final listing decision, and did not merely supplement or confirm existing data, but provided the only scientific information on the cause of the decline in spring flows that is believed to have caused the decline in the springsnail population. The necessity for notice and opportunity to comment on the USGS study was greatly heightened, because FWS relied on the study to support its final rule, and because the study's validity is questionable since it was a "provisional draft" that the USGS did not want released to the public. The provisional draft should have been available for public review so that its accuracy could have been verified before FWS made a decision relying on information contained in the study. On remand, FWS must remedy its failure to make the USGS study publicly available by providing the public with notice and a period in which to comment on the study. FWS should also provide the public with any other new information it plans to consider and allow for the public to submit any other information relevant to determining whether the springsnail should be listed as endangered. Thereafter, FWS must make a listing determination, considering the record in its entirety. The court next holds that FWS failure to comply with ESA §4(b)(5)(A)(II), which required it to provide direct notice of the proposed listing to the county affected by the listing, was harmless error, because the county had actual knowledge of the initial hearings and FWS provided sufficient notice to the public of the subsequent hearings by announcing them in the local paper and in the Federal Register. Finally, the court holds that even though FWS' failure to provide the public with an opportunity to review the USGS report constitutes significant procedural error, the equitable concerns weigh toward leaving the listing rule in place while FWS remedies the error and considers anew whether to list the springsnail as endangered.

[The district court's decision is published at 24 ELR 2019.]

Counsel for Plaintiffs
Sccott L. Campbell, Bobbi K. Dominick
Elam & Burke
Key Financial Ctr.
702 W. Idaho St., P.O. Box 139, Boise, ID 83701

Counsel for Defendants
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000