February 3, 2010
1. This action challenges the Defendant U.S. Fish and Wildlife Service’s (“the Service”) violation of its mandatory duty under the Endangered Species Act to make a 12-month finding in response to Western Watersheds’ petition to list the pygmy rabbit as an endangered or threatened species.
2. This case now represents the third round of litigation before this Court over the Service’s continued and repeated violations of the ESA with respect to Western Watersheds’ efforts to protect the pygmy rabbit under the ESA. See Western Watersheds Project v. Norton, 06-0127-S-EJL, 2007 WL 2827375 (D. Idaho); Western Watersheds Project v. U.S. Fish and Wildlife Service, CIV-04-440-S-BLW (D. Idaho). In Norton, this Court reversed and remanded as arbitrary and capricious the Service’s decision concluding that pygmy rabbit did not warrant protection under the ESA, and ordered the Service to issue a new decision promptly. 2007 WL 2827375, at *9. On January 8, 2008, the Service issued a 90-day finding concluding that protecting the pygmy rabbit under the ESA “may be warranted.”
3. In the intervening two years, however, the Service has abrogated its mandatory duty under the ESA to issue a 12-month finding, in direct opposition to the plain terms of the ESA as well as the Ninth Circuit’s decision in Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir. 2002). Indeed, the Service is now over a year overdue in issuing a 12-month finding.
4. Western Watersheds thus seek judicial relief holding that the Service has violated the ESA by refusing to issue a mandatory 12-month findings on Western Watersheds’ listing petition, and requiring the Service to act promptly upon the Listing Petition as required by the ESA, 16 U.S.C. § 1531, et seq