9th Circuit Reverses Ruling, Favors Friends of Animals in Endangered Species Administrative Case

The Ninth Circuit reversed the District of Montana’s summary judgment on Monday, ruling in favor of Friends of Animals, the plaintiff and appellant, in an environmental lawsuit regarding the Endangered Species Act (ESA) and a rule which required notice be sent to state agencies of  intent to file a petition for an animal to be put on the endangered species list. 

The lawsuit began after Friends of Animals asked that the United States Fish and Wildlife Service (FWS) consider the Pryor Mountain wild horse population as a threatened or endangered population. The advocacy organization was told by the FWS that the petition did not qualify because it did not include proof that they had given notification to applicable state agencies. The plaintiff claimed that through this action the FWS and other federal defendants violated the ESA and the Administrative Procedure Act.

According to the opinion, the district court concluded that the requirement to send notice before filing a petition was permissible under the ESA. The Ninth Circuit panel, however, determined that the notice rule is not consistent with the ESA statutory scheme. 

“Here, the FWS used the pre-file notice rule to refuse to consider a petition that was properly submitted, complied with the substantive requirements in all other aspects, and was otherwise entitled to a 90-day finding, while relying on an unreasonable justification that did not accord with the aims of the ESA,” the opinion explained. 

The pre-file notice rule was published in May 2015, and required more coordination between petitioners and state agencies. The rule was given a final revision in September 2016 following comments expressing concern about the burden given by the rule to petitioners and state agencies.  “The final rule jettisoned the requirement that petitioners coordinate with states,” the opinion said, “requiring instead that a petitioner ‘provide notice to the State agency.’” The addition of the rule was designed to improve the quality of petitions sent to the FWS. 

Friends of Animals argued in its request for summary judgment before the district court that the notice provision alters statutory deadlines and restricts the discretion of petitioner’s to file petitions when desired. The Ninth Circuit panel held that the FWS did use the rule as an excuse to deny a petition and unreasonably determined that the lack of proof of notice to state agencies meant the petition was not in line with the ESA. The court ruled that the petition’s denial was “arbitrary and in excess of statutory jurisdiction,” and that the agency’s authority to make rules governing the petition process “does not extend to restrictions that frustrate the ESA by arbitrarily impeding petitioners’ ability to submit…petitions.”  

The matter is now remanded to the district court, which was directed to enter a judgment in favor of the plaintiffs. 

Friends of Animals is represented by its own counsel and the defendants are represented by the U.S. Department of Justice.