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February 18, 2020

Federal Court Says United States Must Evaluate Endangered Status for Northern Long-Eared Bat

In the recent Center for Biological Diversity v. Everson (No. 1:15-cv-00477) (D.D.C. 2020) case, the district court remanded but did not vacate the 2015 listing of the Northern long-eared bat (NLEB) as “threatened” by the US Fish and Wildlife Service (USFWS) pursuant to the Endangered Species Act (ESA) along with its issuance of a 4(d) rule. In doing so, the court took the extraordinary step of overruling the findings of the USFWS, holding its actions were “arbitrary and capricious” and ordering the USFWS to consider whether the NLEB should have been listed as “endangered.”

The gist of the district court’s reasoning was its criticism and vacating of portions of a 2014 policy issued by the National Marine Fisheries Service and the USFWS regarding the interpretation of what an “endangered” species is. Under the Endangered Species Act (ESA), endangered is defined as “any species which is in danger of extinction throughout all or a significant portion of its range.” According to the court, the 2014 policy states that, if a species is found to be threatened throughout all of its range, there is no need to analyze whether the species is endangered. The court found this to be “arbitrary and capricious.” In doing so, the court reviewed the listing decision for the NLEB and the projects affected within the NLEB’s 37-state range.

In 2015, the USFWS added the NLEB to the list of threatened species under the ESA after a decline in about 60 percent of its population range from a white-nose syndrome fungal infection (WNS). In 2016, the USFWS issued a rule pursuant to Section 4(d) of the ESA that exempted certain timber, energy, and agricultural activities that were otherwise prohibited under the listing, such as protecting areas where bats hibernate (known as hibernacula), and prohibited unauthorized tree removal within 0.25 miles of known hibernacula as well as cutting and destroying known occupied maternity roost trees or trees within 150 feet of a maternity roost tree between June 1 and July 31.

In a 65-page opinion that detailed the rationales and bases for the listing decision, Judge Emmett Sullivan, still claimed he could find no rational basis for the decision. In a statement suggesting form over substance, Judge Sullivan stated, “FWS failed to ‘articulate a rational connection between the facts found and the choice made.’” He, therefore, seems to have added another layer to the “narrow” standard of review mandated for administrative appeals. This type of holding also opens the door for additional appeals and even further litigation. 

The court did not stop there. Although it again acknowledged the prescribed factors for a listing decision were fully considered by the USFWS in its decision, including cumulative effects, the court nonetheless found that not all cumulative effects were considered. In doing so, the court embarked on a granular review of the evidence to reach its own interpretation. 

As noted, however, the court’s primary holding stems from its rejection of the 2014 policy interpreting the meaning of the phrase in the ESA that a species is endangered when it “is in danger of extinction throughout all or a significant portion of its range.” Rather than defer to the agency’s interpretation as Chevron holds, the court seems to have created new law holding that an interpretation and finding that a species is threatened does not preclude a further finding that it is also endangered. In doing so, the court blurs the lines between the two categories, opening up the floodgates for almost universal challenges when the USFWS makes a “threatened” finding. Most significantly, the court vacated the provision in the listing decision that provides that, if the USFWS determines that a species is threatened throughout all of its range, it will not further analyze whether the species is endangered in a significant portion of its range.

Lastly, the court ruled the USFWS failed to comply with the notice and comment requirements of the ESA and the Administrative Procedures Act. In doing so, the court held the USFWS conceded the argument by environmental groups that the threatened listing decision was preordained before the end of the public comment period. 

The court’s decision––particularly its rejection of the USFWS’s application of the 2014 policy––will likely reverberate beyond the NLEB and those projects within its range, as there are numerous other listing decisions that applied the 2014 policy. As a consequence, more challenges of the USFWS’s listing decisions are likely. The decision is also the latest in a string of decisions that have expanded the reach of the ESA to afford more protections to currently listed species and to allow more species to qualify under it. 

Notably, the Ninth Circuit in Alaska Oil & Gas Ass’n v. Pritzker upheld a threatened listing for the bearded seal based on the reasoning that, while not currently threatened, the species will likely be threatened by the effects of climate change in the years to come. The Supreme Court subsequently denied an appeal of that decision. Similarly, in Safari Club Int’l v. Salazar, the District of Columbia Circuit found that mainstream climate science provided clear evidence that polar bears are threatened throughout all of their range. In Trout Unlimited v. Lohn, the Oregon District Court upheld a definition of “likely” in “likely to become endangered in the foreseeable future” as meaning “more likely than not,” thereby only requiring a 50-percent risk of a species becoming extinct in the future to qualify as threatened under the ESA. 

It is interesting to note that although Judge Sullivan acknowledged the “narrow” standard of review a court has over administrative decisions under the Administrative Procedure Act and acknowledged “[t]he court is not empowered to substitute its judgment for that of the agency,” that is precisely what he did. The court recognized the massive record and described the detailed analysis performed by the USFWS, yet it deemed the decision to be “arbitrary and capricious” and lacking a “rational basis.” 

For now, the NLEB remains protected as a threatened species, pending the outcome of a potential appeal and the USFWS’s reevaluation of its listing decision. Regardless of whether the NLEB’s status ultimately changes, the NLEB decision is an important reminder that the ESA and other wildlife issues are hotly contested and will continue to be a critical consideration for industry and project development.

If you have any questions regarding the content of this alert, please contact Mike Oropallo, Outdoor & Wildlife Team co-team leader, at moropallo@barclaydamon.com or another member of the firm's Outdoor & Wildlife Team.

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