Court rules FWS improperly withdrew proposed listing of slickspot peppergrass because it failed to re-consult expert panel
Western Watersheds v. Kempthorne, Case No. CV 07-161-E-MHW, Memorandum Decision and Order (D.Idaho, June 4, 2008)
NATURE OF THE CLAIMS: Western Watersheds argues that the Federal Defendants have violated the ESA and/or the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., by issuing a final decision in January 2007 withdrawing its July 15, 2002 proposed rule to list Slickspot peppergrass as threatened. Western Watersheds claims this decision violates statutory mandates because the listing decision was not based on the “best available science” and the decision is arbitrary, capricious, contrary to law and an abuse of discretion.
Photo of slickspot peppergrass from U.S. Bureau of Land Management. See also, Idaho Governor’s webpage, and FWS Q&A page
RULING: The Court finds that the FWS’s decision to change course based on the new information, without submitting it for review and evaluation by any group of experts resulted in a decision that was not based on the best available science. Given an opportunity to review the new information, perhaps the experts would have agreed with the conclusion… that no listing was warranted. But to use the FWS’s own phrase, we are now left to speculate how (the earlier group of experts) would have evaluated this new information in light of all the other information and reports… Based on the reasons expressed above, the Court finds that the 2007 Withdrawal Notice is arbitrary and capricious under § 706 of the APA.
FACTUAL BACKGROUND ON THE SPECIES: Slickspot peppergrass is a taprooted, intricately branched herbaceous flowering plant found only in the sage-steppe ecosystem of Idaho’s Snake River Plain, It is an annual or biennial plant that averages two to eight inches in height. The plant is associated with microsites known as slickspots, areas where water pools when it rains. These sites are characterized by little vegetation, high concentrations of clay and salt, and reduced levels of organic matter and nutrients. Slickspot peppergrass is currently restricted to 85 delineated Element Occurrences
(“EOs”) constituting 13,359 acres… The primary factors affecting Slickspot peppergrass are habitat based. These include non-native annual grasses, effects of wildfire, drill-seeding and the forage species planted during fire rehabilitation, livestock grazing, vehicles, residential and agricultural development, military training, gravel mining, recreation, among others.
CASE AND ADMINISTRATIVE AGENCY HISTORY: In 2000, the FWS began preparing a draft rule to list Slickspot peppergrass as endangered under the ESA. The process was eventually halted, and litigation ensured. On July 1, 2003, the Director of the FWS approved the final rule that listed Slickspot peppergrass as threatened. The Air Force filed a challenge with the FWS in late March, 2003, during the drafting process, claiming the proposed rule violated the Information Quality Act. The listing was later withdrawn, but on August 19, 2005, this Court reversed the withdrawal decision on the grounds that the FWS acted arbitrarily and capriciously and that the Secretary relied on improper standards in determining that a listing was not warranted. FWS revisited its decision, and in January 2007 again withdrew its July 15, 2002 proposed rule. However, that decision also differed from the previous findings of an Expert Science Panel, and two different “Manager Panels” known as Manager Panel I and Manager Panel II had recommended that a listing of threatened be made. Instead, FWS relied on a final Manager Panel III that recommended that the proposed rule be withdrawn. The FWS contends that the recommendation of the Manager Panel III was based on “new” evidence that allegedly eroded their confidence in some earlier studies and data that the Expert Science Panel and Manager Panels I and II had relied on.
RULING: "After Manager Panel II had made its listing recommendation, the FWS asserts that new information came to light that caused the FWS to change its recommendation and decide that a listing was not warranted. This new information consisted of the Menke and Kaye 2006b report, the URS survey, and information regarding the OTA census methods. None of this information directly addressed the declining habitat which the 2006 BAI, Expert Science Panel and Manger Panels I and II had placed such great emphasis on… (In fact, as demonstrated by the administrative record,) even the FWS staff had concerns that the data and research did not match the conclusions being made regarding the factors affecting habitat and risk of extinction. The FWS was looking for uncertainty to inject into the Withdrawal Notice to justify its ultimate conclusion not to list the species… The ESA requires that the FWS make a listing decision, “solely on the basis of the best scientific . . . data available after conducting a review of the species . . .” 16 U.S.C. § 1533(b)(1)(A); 50 C.F.R. § 424.11(c). In its withdrawal notice, the FWS determination relies heavily on the Menke and Kaye 2006b report. Since this was not included in the BAI document, it was not peer reviewed nor examined by the Expert Science Panel. Because of the reliance placed on this report, the FWS should have submitted this report to the experts for their review to ensure that the FWS had the best available scientific information in front of it when making its listing determination… "
The Expert Science Panel could have provided feedback as to how this new information would or would not have altered the panelists’ previous extinction risk estimates which Manager Panel II relied heavily on in making its “threatened” recommendation. Instead, Manager Panel III was assembled, and based on “new information,” completely changed the earlier recommendation. The Expert Science Panel’s opinions were based in great part on the threats to the Slickspot peppergrass habitat. This new information did not provide any novel insight into these threats. The FWS however, in its withdrawal notice, found “no evidence” and “no correlation” of these habitat factors threatening the species, although the Expert Science Panel and Manager Panels I and II felt otherwise… Faced with the Expert Science Panel’s estimation of extinction risk for Slickspot peppergrass, the logical course would have been to allow the prior Expert Science Panel, or a different group of experts, consider and evaluate the new information and see if it would change the earlier extinction risk estimates. That would have been the path to the best scientific data for the FWS to then evaluate.
COMMENTARY: The Court appears to have engaged in significant second-guessing of the agency’s ultimate decision, and hardly showed deference to the scientific experts at the U.S. FWS, as the Ninth Circuit’s decision in Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) would ordinarily require for listing determinations. In fact, this decision could be interpreted as somehow compelling the use of peer reviews to meet the ESA's best scientific information standards, and creating a substantive test for whether information is, in fact, the best available. On the other hand, it could be argued that in this particular case, FWS was a victim of its own decisions to adopt an entirely new approach to expert review that was contrary to established practice. In addition, based on FWS’s own internal correspondence, which second-guessed itself, the Court appears to have shown a lack of confidence in the FWS staff analysis.