ELR Citation: ELR 20914
No(s). C88-573Z (W.D. Wash. Feb 26, 1991)

The court orders the Fish and Wildlife Service (FWS) to prepare and publish its proposed critical habitat plan for the northern spotted owl because the owl is listed as a threatened species under the Endangered Species Act (ESA). The court rules that FWS must designate critical habitat when it lists a species as threatened or endangered unless the species' critical habitat is not determinable at the time of listing or unless designation of critical habitat is not in the species' interest. The Secretary must justify the failure to list critical habitat at the time of listing under one of these two criteria. The court holds that the time period for listing a species is not automatically extended upon a finding that critical habitat is not presently determinable. The court finds that FWS failed to adequately justify its failure to designate critical habitat for the northern spotted owl at the time it listed it as threatened. Therefore, the court holds that FWS failed to discharge its obligations under the ESA and abused its discretion when it declined to designate critical habitat for the northern spotted owl, and that these actions were arbitrary, capricious, and contrary to law. The court orders FWS to submit a written plan for completing its review of critical habitat by March 15, 1991, and to publish its proposed critical habitat plan no later than 45 days thereafter. The final rule must be published at the earliest possible time under the appropriate circumstances.

[Previous decisions in this litigation are published at 19 ELR 20275 and 20277.]

Counsel for Plaintiff
Victor M. Sher, Todd D. True
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 230, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Jean E. Williams Mellor
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

James C. Kilbourne
U.S. Department of Justice, Washington DC 20530
(202) 514-2000