Western Watersheds Project v. Ashe
948 F. Supp. 2d 1166
D. Idaho2013Background
- Western Watersheds Project challenged the Service’s September 30, 2010 Listing Decision not to list pygmy rabbit under ESA.
- State of Wyoming intervened as defendant‑intervenor to defend the Listing Decision.
- Plaintiff challenged factors under ESA §4(a)(1) focusing on habitat (Factor A).
- Court reviews under the APA, giving deference to the agency’s scientific judgments and the best available science.
- Pygmy rabbit is a sagebrush obligate with dense habitat requirements; the case recalls prior litigation over the rabbit and settlements mandating a 12‑month Finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Foreseeable future definition | Service failed to define foreseeable future. | No specific definition required due to data gaps; defer to agency judgment. | Not reversible error; definition not possible given data, but decision upheld. |
| Significant portion of range test | Service used a new test, abandoned traditional 3‑R framework without explanation. | No substantive change to analysis; boilerplate language removed. | Not arbitrary; 3‑R factors considered; test not novel for decision. |
| Range contraction consideration | Service failed to consider areas no longer occupied as significant portion of range. | Rabbit remains distributed; data show little to no contraction. | Service properly concluded no significant contraction; not arbitrary. |
| Combined threats analysis | Service failed to assess cumulative effects of threats. | Threats were overlapping and evaluated in context; combined effects discernible. | Service considered threats singly and in combination; not arbitrary. |
| Jurisdiction and notice adequacy | NOI did not cover foreseeable future or cumulative threats; jurisdiction concerns. | APA review governs; NOI sufficient to confer jurisdiction. | Court has jurisdiction; review under APA affirming agency decision. |
Key Cases Cited
- Lomabardi, Inc. v. Smithfield, 11 A.3d 1180 (Del. 1989) (irreparable harm is the most important factor for a preliminary injunction)
- Hearth Admins., Corp v. City of New York, 394 F.3d 382 (2d. Cir. 2012) (public policy arguments rarely factor heavily into the outcome of a motion for preliminary injunction)
- Barzingus v. Wilheim, 306 F.3d 17 (10th Cir. 2010) (motion to compel arbitration standard is similar to summary judgment standard)