Biden Administration Asks Supreme Court to Reject Challenge to ESA Rule

Nossaman LLP

On May 14, 2021, the Department of Justice filed a brief with the Supreme Court arguing that the Court should not hear the case of Kansas Natural Resource Coalition v. Department of Interior (“KNRC”). KNRC is a challenge to a rule interpreting the Endangered Species Act (“ESA”) that was jointly issued by the United States Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) in 2003: The “Policy for Evaluation of Conservation Efforts When Making Listing Decisions,”(68 Fed. Reg. 15,100 (Mar. 28, 2003)) or the “PECE Rule.”

The Petitioner, Kansas Natural Resources Coalition (the “Coalition”), argues that the PECE Rule was never submitted to Congress as required by the Congressional Review Act (“CRA”). The CRA requires agencies to submit rules to Congress before they take effect; if Congress passes a joint resolution of disapproval for the rule, the rule cannot take effect or be reissued. In 2018, the Coalition filed its lawsuit, asking the Court to direct the Services to submit the PECE Rule to Congress “without delay.”

The PECE Rule applies when one of the Services is considering whether to list a species as threatened or endangered under the ESA, and implements language in the ESA requiring the Services to consider “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices.” 16 U.S.C. § 1533(b)(1)(A); see also 50 C.F.R. § 424.11(g). In particular, the PECE Rule directs the Services to evaluate conservation measures against listed criteria to determine if the conservation efforts will be implemented and if they will be effective at conserving the species. 68 Fed. Reg. at 15,101, 15,112-15.

The Coalition’s interest in the PECE Rule relates to USFWS’s proposed listing of the lesser prairie-chicken as a threatened species in 2012, which the Biden Administration recently revived. 77 Fed. Reg. 73, 826. In response, the Coalition – which is an organization of county governments in western Kansas that “promotes local government participation in federal and state policy on conservation and natural resource issues”(Kansas Natural Resource Coalition v. U.S. Dep’t of Interior, 971 F.3d 1222, 1229 (10th Cir. 2020)) – developed a conservation plan for the lesser prairie-chicken, which was adopted by its member counties. The Western Association of Fish and Wildlife Agencies also implemented a conservation plan for the lesser prairie-chicken. Nevertheless, USFWS listed the lesser prairie-chicken as threatened, effective May 12, 2014. Id. (citing 79 Fed. Reg. 19,973, 19,974 (Apr. 10, 2014)). That listing decision was vacated by the U.S. District Court for the Western District of Texas, in part because USFWS failed to properly apply the PECE Rule.

In 2016, several nonprofits petitioned to list the lesser prairie-chicken as endangered, and USFWS initiated a status review to determine whether to list the lesser prairie-chicken under the ESA. Id. (citing 81 Fed. Reg. 86,315, 86,317 (Nov. 30, 2016)). The same nonprofits sued over alleged delays in the listing in 2019, and USFWS has since proposed to list the prairie chicken, as reported here.

Separate from the prairie chicken listing saga, the Coalition sued USFWS in 2018, claiming that the PECE Rule had no lawful effect because USFWS had not submitted the PECE Rule to Congress under the CRA. The lawsuit did not seek to repeal or nullify the PECE Rule, but instead sought a declaration that USFWS must submit the rule to Congress without delay.

USFWS moved to dismiss the Coalition’s complaint, and on April 8, 2019, the district court found that the Coalition’s suit was barred by a provision of the CRA stating that “no act or omission under this chapter shall be subject to judicial review,” and dismissed the lawsuit because that provision meant the court lacked jurisdiction. 971 F.3d at 1230; Kansas Natural Resource Coalition v. Dep’t of Interior, 382 F. Supp. 3d 1179, 1182-85 (D. Kan. 2019). On August 24, 2020, the United States Court of Appeals for the Tenth Circuit affirmed. Id. at 1226, 1234-35, 1238. The Coalition has now petitioned the U.S. Supreme Court to hear its appeal. The Biden Administration opposed that petition, arguing that the lower courts’ decisions were correct and that courts lack jurisdiction over lawsuits alleging a failure to comply with the CRA.

It is unclear whether the proposed listing of the prairie chicken will have any effect on the Coalition’s petition for Supreme Court review. The petition was fully briefed before USFWS proposed to list the prairie chicken. Regardless of whether the Coalition’s petition is granted review by the U.S. Supreme Court, it is clear that the petition’s fate will have implications for the listing of the prairie chicken since the application of the PECE Rule to conservation efforts for the lesser prairie chicken is likely to be a factor in any future litigation over the prairie chicken’s listing.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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