Wildwest Institute v. Daniel Ashe
2017 U.S. App. LEXIS 7551
| 9th Cir. | 2017Background
- Whitebark pine (Pinus albicaulis) is a long-lived keystone conifer facing rangewide decline from blister rust, mountain pine beetle, fire suppression, and climate change. FWS found listing warranted but precluded in 2011 and assigned LPN 2; species added to candidate list.
- NRDC petitioned to list in 2008; FWS issued 90‑day and 12‑month findings; Wildwest Institute and Alliance for the Wild Rockies sued to challenge the 2011 “warranted but precluded” decision.
- FWS explained preclusion by ongoing obligations (court-ordered and settlement-driven listings), statutory deadlines, allocations of limited budget/staff, and internal sub‑ranking criteria used to prioritize within LPNs.
- District court granted summary judgment to federal defendants and Wyoming; Ninth Circuit review was de novo under APA arbitrary-and-capricious standard.
- FWS issued a later 2015 CNOR assigning LPN 8; the Ninth Circuit held the challenge not moot under the "capable of repetition, yet evading review" exception because warranted-but-precluded findings are renewed annually.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FWS must follow LPN rankings strictly (list "worst first") | FWS must list species strictly in order of LPN (degree of threat); only species with higher LPNs can preclude listing | Statute and guidelines only require LPNs to assist prioritization; agency may consider other factors | Held: No strict LPN order required; agency may consider factors beyond LPNs |
| Whether FWS may use additional criteria (extinction‑risk subranking, efficiency considerations) | Use of factors outside published guidelines was arbitrary and unlawful | Guidelines and statute allow flexibility; FWS contemplated additional information | Held: Permissible — FWS may properly consider additional factors |
| Adequacy of preclusion explanation (must itemize each precluding species) | FWS must provide individualized, species‑by‑species explanation showing each precludes listing | A concise, reasonable description/evaluation of reasons and data suffices; detailed itemization is not required | Held: FWS’s published explanation, charts, budget/prioritization discussion met §1533(b)(3)(B)(iii) requirements |
| Reliance on budget, court orders, statutory deadlines to justify preclusion | Agency cannot rely on self‑imposed budget limits or court/statutory deadlines to delay listing (would be impermissible foot‑dragging) | Budgetary and litigation constraints are legitimate considerations; Congress provided the warranted‑but‑precluded relief recognizing limited resources | Held: Consideration of budget, court orders, and deadlines is permissible; no statute bars these factors |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (administrative action must show rational connection between facts and decision)
- Ctr. for Biological Diversity v. Norton, 254 F.3d 833 (9th Cir. 2001) (discusses warranted‑but‑precluded requirements and review standard)
- Kempthorne v. [sic] (Ctr. for Biological Diversity v. Kempthorne), 466 F.3d 1098 (9th Cir. 2006) (agency must publish description/evaluation of reasons and data for preclusion)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (describing the ESA as comprehensive species‑protection statute)