On January 28, in Center for Biological Diversity v. Everson, No. 1:15-cv-00477 (D.D.C. 2020), the U.S. District Court for the District of Columbia remanded, but did not vacate, the United States Fish and Wildlife Services’ (“USFWS”) April 2015 decision to list the northern long-eared bat (“NLEB”) as threatened under the Endangered Species Act (“ESA”). The court also vacated a component of the USFWS and National Marine Fisheries Services (collectively, “Services”) significant portion of its range policy (the “SPR Policy”) regarding how to evaluate whether a species is endangered in a “significant portion of its range” once a determination has been made that the species is threatened throughout “all of its range.” The SPR Policy, issued in 2014, has formed the basis for other listing decisions and thus its vacatur has implications beyond the NLEB.

According to the court, the USFWS did not adequately explain why threats facing the species warranted a listing as threatened rather than endangered. In particular, the court found that the USFWS did not adequately support its conclusion that a threatened designation was supported by the fact that 40% of the bat’s range was unaffected by white nose syndrome (“WNS”). The court cited the USFWS’ own statements that the unaffected portion of the bat’s range had a much lower population density. The court also found that the USFWS impermissibly omitted any consideration of the cumulative threats facing the species. The Agency’s justification for the threatened listing relied on the effects of WNS, ignoring other threats. Finally, the court found that the Agency had impermissibly prevented the public from submitting meaningful comments by reaching its decision before the close of the public comment period. Nevertheless, the court did not vacate the threatened listing, and both it and the related 4(d) rule (explained in a previous blog post) will remain in place while the USFWS reconsiders the listing decision.

An additional impact of the decision relates to the court’s vacatur of a component of the SPR Policy. The ESA defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). Under the SPR Policy, the Services do not analyze whether a species is endangered in a significant portion of its range once it is determined that the species is threatened throughout all of its range. According to the court, this practice violates the plain language of the ESA by reading the phrase “significant portion of its range” out of the definition of “endangered.” According to the plaintiffs, the Services have applied this rationale pursuant to the SPR Policy in at least 13 other threatened listing decisions, including species such as the West Indian manatee and Gunnison sage-grouse.