Ninth Circuit Invalidates USFWS Regulation Requiring State Agency Notice Prior to Filing a Petition for Listing of a Species under the ESA
On May 17, 2021, the U.S. Court of Appeal for the Ninth Circuit reversed a decision from the U.S. District Court for the District of Montana regarding the USFWS’s regulatory requirement that state wildlife agencies receive 30-days’ notice of a petition to list a species under the Endangered Species Act (ESA) prior to filing a petition with the USFWS.
(https://www.docketalarm.com/cases/US_Court_of_Appeals_Ninth_Circuit/20-35318/Friends_of_Animals_v._Deb_Haaland_et_al/31/). Under the ESA, private parties are allowed to petition the USFWS to list a species; however, a 2016 regulation (50 CFR Sec. 424.14), requires that the petitioner send notice to affected state wildlife agencies at least 30-days prior to filing the petition with the USFWS.
In 2017, Plaintiff, Friends of Animals, filed a petition with the USFWS requesting that the Pryor Mountain wild horse population in Montana and Wyoming be added to the ESA list of endangered species. On July 20, 2017, the USFWS notified Friends of Animals that its petition would not be considered because Friends of Animals failed to provide the required notice to state wildlife agencies. Friends of Animals subsequently filed an action in the District of Montana against the USFWS, alleging that the 30-day notice requirement in 50 CFR Sec. 424.14(b) violated the statutory requirements of the ESA and the Administrative Procedure Act (APA). The U.S. Appeals Court for the District of Montana upheld the USFWS’s decision to reject Friends of Animals’ petition, who then appealed that decision to the Ninth Circuit Court of Appeals. On May 17, 2021, the Ninth Circuit issued is decision, holding that the 30-day notice requirement in 50 CFR Sec. 424.14(b) violates the ESA because it creates a procedural burden that is contrary to the statutory intent of the ESA. The practical effect of this ruling is that environmental groups will now be able to petition for listing of species under the ESA without providing notice to affected state wildlife agencies. This may result in more rapid filings of ESA petitions and less involvement from state agencies.