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Environmental Law

: ESA Blawg

District Court clarifies reasons for rejecting FWS decision to withdraw proposed slickspot peppergrass listing

By Keith Rizzardi

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Western Watersheds Project v. Kempthorne, Case No. CV 07-161-E-MHW, 2008 U.S. Dist. LEXIS 84017 (D. Idaho, October 17, 2008)(Honorable Mikel H. Williams, United States Magistrate Judge)

BACKGROUND: The original decision in question here was discussed in a prior ESA blawg (June 2008). That posting noted that the District Court was less-than-deferential to FWS, and that the judge's opinion could be interpreted as erroneously ordering FWS to use an expert peer review panel -- something that the Endangered Species Act does not require. In this opinion, in response to a motion for reconsideration, the District Court further explained its reasons for rejecting the FWS January 2007 decision to withdraw a rule previously proposed in 2002 to list the slickspot peppergrass as a threatened species.

EXCERPT: When the FWS decided to not present the new information to the Science Panel, the FWS violated the requirement to base their decision on the best available scientific evidence. Surely the FWS is not now contending that they went through all of the effort of assembling the 2006 BAI, having it peer reviewed, and convening seven experts in high desert plants to study the information if that entire process would in some manner give them something less than the best scientific information upon which to make their decision. To put it another way, having the FWS managers, who were not experts on high desert plants, decide that the Slickspot peppergrass was not a threatened species based on their own interpretation of the "new" evidence was not based on the best scientific evidence then available. If these managers were experts in this field, then one may properly ask why the Science Panel was thought to be appropriate and important in the first place. And without going through each item of "new" evidence, it is particularly troubling that the Science Panel never had an opportunity to comment on the Executive Summary in the Menke and Kaye 2006b report, which states that declining population trends of Slickspot peppergrass indicated a decrease in abundance range-wide. Rather than contradicting the extinction risk assessment by the Science Panel, the new information could have very well offered further support for the conclusions of the Science Panel.
The Court agrees with the FWS, based on the cases cited earlier, that the "best scientific and commercial data available" standard cannot require an agency to conduct independent studies, for example conducting a walking tour of an 8.6 million acre site or further testing to determine the effects of various environmental factors. See Arizona Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1027 n. 6 (D. Ariz. 2008); Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 19-20 (D. D.C. 2001). The Court's remand order is not remotely close to these examples. The Court is not asking the FWS to conduct independent studies or other further testing. The information that the FWS contends called into questions the previous recommendations of Manager Panels I and II was "available" and could have been considered. Instead, the Court is ordering that the FWS base its decision on the best scientific information then available about the Slickspot peppergrass. While they may be more than one path to arrive at the best scientific information, certainly following the procedures that the FWS had already decided from the very beginning were appropriate in this case, would logically lead to a decision based on the best science.

Full post as published by ESA Blawg on November 09, 2008 (boomark / email).