Gen Land Off of the St of TX v. U.S. Fish and Wild, 947 F.3d 309

Background

The U.S. Fish & Wildlife Service (Service) listed the Golden-Cheeked Warbler as endangered in 1990; it did not designate critical habitat at that time though statutes required designation “to the maximum extent prudent and determinable” and within two years of the proposed rule if not concurrent.
The Service completed a statutorily‑required five‑year review only in 2014, which concluded the Warbler remained endangered due to ongoing habitat loss, fragmentation, predation, wildfire risk, and climate change.
In June 2015 third parties petitioned to delist the Warbler, arguing population and habitat are much larger than thought in 1990 and relying on recent surveys and studies.
In June 2016 the Service issued a negative 90‑day finding: it concluded the petition did not present substantial scientific or commercial information indicating the delisting may be warranted and thus did not initiate a 12‑month status review.
The Texas General Land Office (GLO) sued, challenging (1) the 1990 listing for failure to designate critical habitat and alleged NEPA violations, and (2) the 2016 negative 90‑day finding as arbitrary and capricious for applying the wrong legal standard.
The district court dismissed the GLO’s challenges to the 1990 listing as time‑barred and dismissed NEPA claims; it granted summary judgment to the Service on the 90‑day finding. The GLO appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether GLO’s challenges to 1990 listing are timely	GLO: listing illegal because Service failed to designate critical habitat and violated NEPA; claims can be treated as ongoing failures to act	Service: claims accrued at the time of the 1990 final listing or statutorily‑required deadlines, so barred by 28 U.S.C. §2401(a)	Time barred: accrual in 1990 (or by the regulatory deadline) means GLO’s ESA and NEPA claims about the initial listing are untimely
Whether listing/delisting decisions must comply with NEPA	GLO: Service should have prepared EA or EIS for listing and for denying delisting petition	Service: ESA constrains its decisionmaking to specified biological factors, so NEPA would add information it cannot consider; EAs/EISs for listing are unnecessary	NEPA does not apply to ESA listing/delisting decisions because NEPA would require consideration the ESA forbids; district court correctly dismissed NEPA claim as to listing/denial
Whether the Service applied the correct standard at 90‑day stage	GLO: Service misapplied the substantial‑information standard and imposed too high a burden, effectively requiring new information that overturned the 5‑year review	Service: it applied the then‑regulatory standard by comparing petition to existing review and concluded petition lacked new substantial info	Reversed: the court holds Service applied an impermissibly heightened standard (requiring petition to refute prior review), so the 90‑day finding was arbitrary and capricious
Remedy for defective 90‑day finding	GLO: vacatur and remand for correct evaluation under proper 90‑day standard	Service: urges deference / affirm denial	Court vacated the negative 90‑day finding and remanded to Service to reconsider the petition under the correct regulatory standard

Key Cases Cited

Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004) (NEPA’s "rule of reason" permits withholding an EIS where the agency cannot meaningfully consider the information due to statutory constraints)
Pacific Legal Found. v. Andrus, 657 F.2d 829 (6th Cir. 1981) (listing decisions under the ESA do not require an EIS because ESA confines listing criteria to biological factors)
Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331 (11th Cir. 2006) (failure to designate critical habitat is not a continuing violation for statute‑of‑limitations purposes)
Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (a compelled agency duty with a time limit creates a discrete action for accrual/mandamus analysis)
Doe v. United States, 853 F.3d 792 (5th Cir. 2017) (cause of action accrues when plaintiff first can file suit and obtain relief)
Koon v. United States, 518 U.S. 81 (1996) (applying an incorrect legal standard is an abuse of discretion / arbitrary and capricious)
Sw. Elec. Power Co. v. EPA, 920 F.3d 999 (5th Cir. 2019) (vacatur and remand are appropriate when an agency action is arbitrary and capricious)