## Facts

- FWS proposed listing the dunes sagebrush lizard as endangered under the Endangered Species Act (ESA) in December 2010 due to habitat loss and fragmentation in the Permian Basin of New Mexico and Texas.
- Between the proposal and final action, New Mexico, Texas, and the Bureau of Land Management implemented or expanded conservation measures aimed at protecting lizard habitat.
- New Mexico used Candidate Conservation Agreements and assurances involving federal and private participants; BLM imposed habitat-related limits on leasing and surface disturbance.
- Texas, through the Comptroller’s office, established a voluntary conservation program for oil and gas operators on private lands, including enrollment instruments and funding mechanisms.
- In June 2012, FWS withdrew the proposed listing, concluding that, given updated information and conservation measures, threats were not sufficiently imminent, intense, or widespread to warrant listing as endangered or threatened.
- Environmental organizations sued under the ESA and the Administrative Procedure Act (APA), alleging the withdrawal was arbitrary and capricious, ignored the best available science, improperly relied on voluntary state measures, and reflected political and economic pressure.
- The parties filed cross-motions for summary judgment, with Texas and industry groups intervening in support of the federal defendants.

## Issues

1. Whether FWS’s withdrawal of the proposed ESA listing was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under the APA.
2. Whether FWS failed to base its decision solely on the best scientific and commercial data available as required by the ESA.
3. Whether FWS unlawfully relied on voluntary conservation efforts that were not sufficiently certain to be implemented and effective under the Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE).
4. Whether alleged political or economic pressure rendered the withdrawal inconsistent with the ESA’s science-based listing mandate.

## Decision

- The court denied plaintiffs’ motion for summary judgment.
- The court granted summary judgment to the federal defendants and intervenor-defendants.
- The court upheld FWS’s decision to withdraw the proposed rule and leave the species unlisted at that time.
- Applying deferential APA review, the court concluded FWS considered relevant factors, explained its reasoning, and did not commit a clear error of judgment.
- The court held plaintiffs did not show FWS disregarded superior data or otherwise failed to use the best available scientific and commercial data.
- The court held FWS reasonably applied PECE in finding the conservation efforts sufficiently certain to be implemented and effective, even though they included non-regulatory and voluntary components.
- The court held evidence of advocacy and political attention did not invalidate the decision absent proof that such pressure caused FWS to depart from statutory factors.

## Legal Principles

- Under the APA, a court upholds agency action if the agency considered relevant factors, reasonably explained its decision, and did not make a clear error of judgment; courts do not substitute their judgment for the agency’s on scientific matters.
- The ESA’s “best scientific and commercial data available” standard requires reasoned decisionmaking based on available evidence, not perfect certainty or additional studies whenever uncertainty exists.
- PECE permits FWS to consider conservation efforts not yet fully implemented if the agency reasonably finds they are sufficiently certain to be implemented and effective, including non-regulatory and voluntary programs.
- Political or economic advocacy does not itself invalidate ESA listing decisions; a challenger must show the agency’s decisionmaking departed from the factors Congress required it to consider.

## Conclusion

The court sustained FWS’s withdrawal of a proposed ESA listing for the dunes sagebrush lizard, holding that the agency reasonably relied on updated science and sufficiently certain conservation measures under PECE and that plaintiffs failed to show the withdrawal was arbitrary, capricious, or unlawfully driven by non-statutory considerations.


Defenders of Wildlife v. Jewell, 70 F. Supp. 3d 183 (D.D.C. 2014)