by Sebastien Malo as posted on Rueters Legal

A federal appeals court ruled on Monday that the U.S. Fish and Wildlife Service (FWS) wrongly refused to review an animal advocacy group’s bid to include a wild horse on the country’s list of imperiled species because its refusal hinged on a rule that is inconsistent with the Endangered Species Act (ESA).

A three-judge panel of the 9th U.S. Circuit Court of Appeals in Portland said that, contrary to a lower court’s earlier ruling, the FWS violated the ESA when it rejected Friends of Animals’ petition to list the Pryor Mountain horse on grounds the group had not, per the 2016 “pre-file notice” rule, first notified states where the animal lives.

Spokespeople at the Department of the Interior and the Department of Justice declined to comment.

Friends of Animals’ general counsel, Michael Harris, said that the court’s ruling provides a path for protecting the free-roaming horse “from years of mismanagement by the federal government.”

Writing for the panel, U.S. District Judge John Tunheim, who sat by designation, said Montana federal Judge Susan Watters got it wrong when she sided with the FWS in 2020.

He said the FWS had acted unreasonably by rejecting the petition because Friends of Animals had not followed the regulation.

Tunheim said the pre-file notice rule creates a “procedural hurdle” that undercuts the ESA’s conservation goals.

The regulation was adopted to allow states to share data with federal agencies on a species that will be considered for special ESA protections after the filing of a citizen petition. The FWS has 90 days to study such petitions and determine whether they are worth pursuing.

Friends of Animals petitioned the FWS in 2017 over the Pryor Mountain horse, which is of unique Spanish genetic lineage and is found in Montana and Wyoming. It said the horse’s population was “critically small” and its survival at risk.

The group, which is represented by in-house lawyers, later sued the FWS after the agency tossed its submission because it lacked proof the petitioners had notified Montana and Wyoming.

Tunheim disagreed with the agency’s argument that it had used the pre-file notice rule in ways that align with Congress’ intent because it increased the efficiency of listing species.

The judge said that, rather, courts have “repeatedly admonished” as contrary to the ESA the soliciting of outside information during the initial petition-review period. The ESA directs the agency to make that assessment only on the basis of the petition’s content, Tunheim said.

“Here, the FWS used the pre-file notice rule to refuse to consider a petition that was properly submitted,” the judge wrote.

The panel remanded the case to the district court with instructions to enter a summary judgment in favor of the plaintiffs.

Tunheim was joined by U.S. Circuit Court Judges Richard Paez and Paul Watford.

The case is Friends of Animals v. Deb Haaland, et al, 9th U.S. Circuit Court of Appeals, No. 20-35318.

For Friends of Animals: Michael Harris with Friends of Animals

For Deb Haaland, et al: Robert Lundman with the U.S. Department of Justice

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