Friends of Animals v. Haaland, No. 20-35318 (9th Cir. 2021)
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The Ninth Circuit reversed the district court's grant of summary judgment for the FWS in an action brought by Friends of Animals, challenging FWS's rule, 50 C.F.R. 424.14(b), which required that affected states receive 30-day notice of an intent to file a petition to list an endangered species. Friends alleges that the FWS used the "pre-file notice rule" to improperly reject Friends' petition to list the Pryor Mountain wild horse as a threatened or endangered distinct population segment, and argues that the rule revision violates the Endangered Species Act's (ESA) requirements for review of petitions and is inconsistent with the Administrative Procedure Act (APA).
The panel concluded that the pre-file notice rule is inconsistent with the statutory scheme of the ESA and thus does not survive the second step of the Chevron test. The panel explained that the FWS used the pre-file notice rule to create a procedural hurdle to petitioners that does not comport with the ESA. In this case, the FWS used the pre-file notice rule to consider a petition that was properly submitted, complied with the substantive requirements in all other respects, and was otherwise entitled to a 90-day finding, while relying on an unreasonable justification that does not accord with the aims of the ESA. Therefore, FWS's denial of the petition was arbitrary and in excess of its statutory jurisdiction. Accordingly, the court remanded to the district court to enter summary judgment in favor of Friends.
Court Description: Environmental Law The panel reversed the district court’s summary judgment entered in favor of federal officials and the U.S. Fish and Wildlife Service (“FWS”), and remanded to the district court to enter judgment in favor of the Friends of Animals (“Friends”) in an action challenging FWS’s rule, 50 C.F.R. § 424.14(b), which required that affected states receive 30-day notice of an intent to file a petition to list an endangered species. In 2017, Friends filed a petition requesting that FWS list the Pryor Mountain wild horse population as a threatened or endangered distinct population segment under the Endangered Species Act (“ESA”). The FWS notified Friends that the submission did not qualify as a petition because it did not include copies of required notification letters or electronic communications to state agencies in affected areas. Friends filed this action seeking a declaration that federal defendants violated the ESA and the * The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. FRIENDS OF ANIMALS V. HAALAND 3 Administrative Procedure Act by impermissibly requiring that the 30-day notice be made to affected states and refusing to issue a finding on Friends’ petition within 90 days, and vacatur of 50 C.F.R. § 424.14(b)’s 30-day notice requirement. The district court concluded that the pre-file notice requirement was a permissible construction of the ESA. The panel held that the FWS’s pre-file notice rule was inconsistent with the statutory scheme of the ESA. Because the pre-file notice rule was enacted through notice-and- comment rulemaking procedures pursuant to 16 U.S.C. § 1533(h), the panel reviewed the agency rulemaking under the two-step Chevron framework. The panel held that the pre-file notice rule survived step one – determining whether Congress clearly spoke to the question at issue – because the ESA was silent as to pre-petition procedures and notice requirements. At step two, the panel assessed whether FWS’s construction of the rule was reasonable. The panel held that the pre-file notice rule created a procedural hurdle for petitioners that did not comport with the ESA. 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 panel concluded that the pre-file notice rule did not survive the second step of the Chevron test. The panel concluded that the FWS’s decision to deny Friend’s petition because of its non-compliance with the pre- file notice rule could not be sustained. 4 FRIENDS OF ANIMALS V. HAALAND
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