INTRODUCTION
1. In December 2007, the Court ruled in this case that Defendant U.S. Fish and Wildlife Service acted unlawfully in determining that Endangered Species Act listing of the greater sage-grouse was “not warranted,” due to improper political interference in the listing process and the Service’s arbitrary treatment of the best available science showing that sage- grouse populations and habitats are deeply imperiled. See Docket No. 118. The Court remanded for the Service to make a new Endangered Species Act listing determination; and approved remand stipulations in which Plaintiff Western Watersheds Project agreed that the Service could delay the listing decision to take into account the latest sage-grouse science, as reported in a Studies for Avian Biology “Monograph” being prepared by leading sage-grouse researchers. See Docket Nos. 130, 137 & 183.
2. Based on that Monograph and other best available science, the Service announced on March 5, 2010 its new finding that ESA listing of greater sage-grouse is “warranted” under the ESA, because of the many threats facing sage-grouse populations and their sagebrush habitats – particularly habitat fragmentation from energy development, livestock grazing, infrastructure, fires, weed invasions, and climate change impacts. See U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants: 12-Month Findings for Petitions to List the Greater Sage-Grouse (Centrocercus urophasianus) As Threatened or Endangered,” (hereafter, “March 2010 Finding”).
3. Yet despite these scientific findings acknowledging that the sage-grouse qualifies for listing as an endangered or threatened species, the Service is perpetuating its unlawful refusal to protect sage-grouse under the ESA. In the March 2010 Finding, the Service determined not to proceed with a proposed listing rule for the greater sage-grouse, asserting that its own bureaucratic backlog and lack of resources supposedly preclude it from moving forward with an ESA listing rule for the sage-grouse this year.
4. This “precluded” determination relegates the sage-grouse to the long list of ESA “candidate” species – a black hole from which few species ever emerge, and under which they receive no ESA protection – and represents yet another non-scientific, politicized, and arbitrary determination that prevents the sage-grouse from obtaining the ESA protection that it urgently needs.
4. As alleged below, the Court must reject the Service’s “precluded” finding as being arbitrary, capricious, and contrary to law. The Service cannot justify its refusal to proceed with a sage-grouse listing based on its own bureaucratic listing backlog and other grounds cited in the March 2010 Finding – particularly when the Service has already invested the bulk of the resources needed for a sage-grouse listing in rendering the March 2010 Finding; and when the Service has already been found by this Court (and many others) to have repeatedly violated the ESA in not proceeding to list sage-grouse and other species as directed by Congress. Moreover, the Service has abjectly failed to make expeditious progress in addressing the large backlog of species that warrant ESA protection; and it is relying on improper budgetary and other excuses to avoid proceeding with the greater sage-grouse listing, contrary to the ESA’s statutory requirements and without rational justification.
5. Plaintiff Western Watersheds Project thus brings this First Supplemental Complaint to challenge the “precluded” part of the Service’s March 1010 Finding that ESA listing of greater sage-grouse is “warranted, but precluded,” as being arbitrary, capricious, and contrary to law. WWP asks the Court to quickly review and reverse that “precluded” determination, and remand with instructions for the Service to promptly publish a proposed listing rule within a set deadline, so that greater sage-grouse can finally receive the ESA protections that science – and the Service’s own “warranted” determination – show are necessary to prevent this icon of the sagebrush sea from declining further toward extinction.
