In a new twist in the ongoing debate between states and the federal government over the management of wildlife, the Nevada Association of Counties sued the U.S. Fish and Wildlife Service (“FWS”), arguing that the highly publicized and controversial 2011 settlement of a lawsuit between the FWS and environmental groups that forces listing determinations by a date certain violates the Endangered Species Act (“ESA”). On December 4, 2014, the Nevada Counties filed the suit in the United States District Court for Nevada, Case No. 3:14-cv-00630 challenging the settlement of In re Endangered Species Act Section 4 Deadline Litigation (“2011 Litigation”).

In the 2011 Litigation, a coalition of environmental groups filed multiple actions to compel the FWS to meet statutory deadlines on hundreds of pending ESA § 4 listing petitions. When a species is proposed for listing under the ESA, the ESA requires that the FWS study the candidate species and then issue a determination finding that the listing of the species as “threatened” or “endangered” is either “warranted,” “not warranted,” or “warranted, but precluded by other priorities.” 16 U.S.C. § 1533(b)(3)(B); 50 C.F.R. § 424.14(b). Listed species are entitled to heightened protection by the federal government, state and private actors. Although candidate species may be protected under other federal and state regulation, they are not managed under the ESA.

Over the last decade, wildlife advocates flooded the FWS with listing petitions; FWS lacked the resources to keep up with the statutory listing determination deadlines. For the species targeted by the 2011 Litigation, rather than deciding whether a species should be listed or not, FWS stalled for time (and resources) by finding the listing of the species “warranted, but precluded.” The FWS settled the case by agreeing not to issue determinations of “warranted, but precluded” for the species named in the litigation, but would instead only issue decisions finding that the listing of the candidate species was “warranted” or “not warranted” under the ESA. See Stipulated Settlement Agreements, In re Endangered Species Act Section 4 Deadline Litigation, Misc. Action No. 10-377 (D.D.C. May 10, 2011 and July 12, 2011), available at https://www.fws.gov/endangered/improving_esa/exh_1_re_joint_motion_FILED.PDF and http://www.biologicaldiversity.org/programs/biodiversity/species_agreement/pdfs/proposed_settlement_agreement.pdf.

The Nevada Counties argue that by entering into the 2011 Litigation settlement that prohibits the “warranted, but precluded” option, FWS modified the congressional intent in the ESA. That is, Congress intended that FWS be allowed to determine that the listing of a candidate species is “warranted,” but that there are other species that present more pressing concerns for protection. Moreover, Plaintiffs allege that FWS failed to study the candidate species prior to entering into the settlement, which effectively made listing decisions for all of the targeted species without adequate study. FWS’s answer is due in early February 2015. The 2011 settlement of this litigation by the Administration was a key environmental policy objective so the Nevada challenge bears watching.