Court Rejects Fish and Wildlife Listing Decision as Arbitrary and Capricious

Daniel J. O’Hanlon
Kronick, Moskovitz, Tiedemann & Girard

In a ruling that is apparently the first of its kind, a Federal court in California has rejected a decision by the United States Fish and Wildlife Service to list a species as "threatened" under the federal Endangered Species Act, calling the decision "arbitrary and capricious." While in a few other cases courts have temporarily set aside decisions to list a species on procedural grounds, this is the first case to take the Service to task for suspect science underlying its listing decision. This successful court challenge to the Service’s discretion on biological issues should prove to be a valuable precedent for members of the regulated community who have been frustrated by various Service decisions that do not appear to have any basis in science.

The case involves the listing of the Sacramento splittail, a fish in the minnow family that resides in the Sacramento-San Joaquin River Delta, and various tributaries to the Delta. The Service published a regulation listing the fish as "threatened" on February 9, 1999. During the comment period before publication of the final rule, the plaintiffs in the case, various water agencies and water users dependent on supplies form the Delta, submitted comments in opposition to the proposed listing. The California Department of Fish and Game filed comments objecting to the listing as well.

In support of its listing decision, the Service claimed that the splittail population has declined by sixty two percent (62%) since 1980. The Service derived this figure by comparing high average abundance during the years from 1980 to 1984, a relatively wet period, against low average abundance during the period from 1985 through 1992, which includes the years of California’s recent drought. Since splittail abundance fluctuates with wet or dry conditions, the Service’s choice of periods for its comparison guaranteed a conclusion that the species was declining over time. The Service "updated" that calculation with abundance data gathered up through 1997, which showed improving abundance after the drought, but because of the wet baseline period chosen for the comparison, the Service could still claim an overall decline.

The Service did not consider any abundance data from 1998. As it happened, 1998 was a wet year, with record high splittail abundance numbers in some surveys, and near record highs in other surveys. In its press release accompanying the publication of the regulation listing the splittail in February 1999, the Service said it could not consider the 1998 data, because record abundance in 1998 resulted from "exceptional hydrological conditions." Yet, the Service did include the high abundance data from 1983 in its baseline period used to calculate species decline, and 1983 was the wettest year on record in California.

In response, the water agencies, whose water supplies were subject to potential restrictions as a result of the listing of the splittail, filed suit. In a decision filed on June 28, 2000, in the United States District Court in Fresno, Judge Oliver Wanger ruled that "[u]nder the totality of the circumstances, this is an arbitrary and capricious decision not reached in accordance with law." The court concluded that "there [is no] evidence that USFWS attempted to acquire a broader range of unbiased data or address critiques of the studies they used, which appear biased. They violated other provisions of the ESA requiring relation of the data to the listing decision and written justification to the state agencies that opposed the listing. The entire record shows the listing decision was not the result of fair, impartial, or reasoned decision making. Since the decision to list the splittail, USFWS has provided conflicting rationales as to why other conflicting evidence was not considered." In sum, the court expressed serious reservations about the soundness and objectivity of the scientific basis for the Service’s decision.

This case has broad significance, because courts are generally very deferential to agency decisions on scientific or technical issues, and will overturn such decisions only if they find them be arbitrary and capricious. Furthermore, while a number of cases have overturned Service decisions not to list a species, this case is the first case to reject, on substantive grounds, the Service’s decision to add a species to the list. The splittail case shows that, in the appropriate case, a court challenge to an unjustified Service decision on a biological issue can succeed.

Anyone considering such a challenge is cautioned to submit substantive, detailed comments in response to a proposed listing decision or other Service regulatory action. In general, only data and comments that are in the Service’s administrative record will be considered by a court. Especially after the splittail decision, well prepared comments will compel the Service to objectively consider and respond to all of the available data, including data contrary to its proposed decision, or face the prospect of having its decision set aside as arbitrary and capricious.