Ninth Circuit Invalidates Rule Requiring Notice To States Prior To Filing A Listing Petition Under The Endangered Species Act

• Published date: 14 July 2021
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation
• Law Firm: Perkins Coie LLP
• Author: Mr Jacob E. Aronson

The Ninth Circuit Court of Appeals recently invalidated a 2016 rule that required a 30-day notice to affected state fish and wildlife agencies prior to filing a petition to list a species as threatened or endangered under the Endangered Species Act. Friends of Animals v. Haaland, 997 F.3d 1010 (9th Cir. 2021).

Section 4(b)(3) of the Endangered Species Act allows interested persons to petition the Fish and Wildlife Service or the National Marine Fisheries Service to list a species as threatened or endangered. To the maximum extent practicable, within 90 days after receiving a listing petition, the Services must 'make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.' If the Services find that listing may be warranted based on the petition, the Services must then undertake a 12-month review to determine whether listing of the species is warranted.

In 2016, the Services adopted a rule (codified at 50 CFR 424.14) requiring petitioners to provide notice to state fish and wildlife agencies in each state where the species occurs. The notice must be provided at least 30 days prior to submitting a listing petition to the Services. The preamble to the final rule explained that the rule would allow states to submit data and information to the Services during the 30-day period before a petition is filed, and the Services could then consider this state-supplied information in making the 90-day finding on the listing petition.

This case arose from a petition filed by Friends of Animals to list the Pryor Mountain wild horse population as a threatened or endangered distinct population segment. The Fish and Wildlife Service denied the petition in 2017 because the petition did not include proof that Friends of Animals had notified state fish and wildlife agencies at least 30...