## Facts

- Western Watersheds Project petitioned the U.S. Fish and Wildlife Service (FWS) to list the greater sage-grouse as threatened or endangered under the Endangered Species Act (ESA).
- FWS issued a positive 90-day finding that the petition presented substantial information that listing may be warranted.
- After a 12-month status review, FWS (January 2005) issued a 12-month finding that listing the greater sage-grouse was “not warranted,” despite acknowledging long-term population declines and substantial habitat loss.
- The administrative record described major threats, including invasive weeds, wildfire, energy development, and livestock grazing, and noted that about half of the species’ historic area was no longer capable of supporting year-round occupancy.
- FWS convened an outside expert panel to estimate extinction probability over 100 years; estimates included roughly 36% range-wide, 52% in the eastern portion, and 40% in the western portion.
- FWS created no written expert-panel report and kept no notes or transcript of panel discussions, yet the final decision referenced a “consensus” without clarifying its source or how extinction-risk estimates were used.
- Western Watersheds Project sued under the Administrative Procedure Act (APA) and ESA-related authorities to set aside the “not warranted” finding as arbitrary, capricious, and inconsistent with the “best scientific and commercial data available.”
- The court resolved cross-motions for summary judgment.

## Issues

1. Whether FWS’s 12-month “not warranted” listing finding was arbitrary and capricious under the APA for failing to provide a reasoned explanation connecting the record evidence to the decision.
2. Whether FWS violated the ESA requirement to base listing decisions on the “best scientific and commercial data available” by failing to document and explain its use of expert-panel input and extinction-risk estimates.
3. Whether FWS lawfully concluded that no “significant portion” of the greater sage-grouse’s range warranted listing, given evidence of elevated risk in the eastern portion.

## Decision

- The court granted Western Watersheds Project’s motion for summary judgment and denied the government’s cross-motion.
- The court held the January 2005 “not warranted” finding was arbitrary and capricious and contrary to the ESA.
- The court set aside the “not warranted” finding and remanded to FWS for further proceedings consistent with the opinion.
- The court did not order listing; it required a lawful, explained decision based on an adequate record.

## Legal Principles

- Under the APA, an agency must examine relevant data and articulate a satisfactory explanation showing a rational connection between the facts found and the choice made.
- Judicial review requires an administrative record that permits evaluation of the agency’s reasoning; a court cannot defer where the agency’s rationale is not ascertainable from the record.
- ESA listing determinations must be made solely on the basis of the best scientific and commercial data available; an agency must explain how it used key scientific evidence when reaching its conclusion.
- If an agency relies on expert scientific input to justify a listing decision, it must preserve enough documentation to allow review of what the experts provided and how that information affected the outcome.
- The ESA’s “throughout all or a significant portion of its range” language requires a reasoned explanation when the record indicates a geographically discrete area faces materially higher risk.

## Conclusion

The court vacated and remanded FWS’s “not warranted” decision because the agency failed to document and explain its reliance on expert extinction-risk estimates and failed to provide a reviewable, reasoned basis—especially regarding whether heightened risk in the eastern range constituted a “significant portion” under the ESA.


W. Watersheds Project v. U.S. Fish & Wildlife Serv., 535 F. Supp. 2d 1173 (D. Idaho 2007)