In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat designation for the Washington, Oregon and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus).

The U.S. Fish and Wildlife Service (Service) listed the tri-state population of the marbled murrelet under the Endangered Species Act (ESA) in 1992, finding the population constituted a distinct population segment (DPS) under the ESA. The Service designated critical habitat for the species in 1996. In 2008, plaintiffs filed a petition with the Service to delist the tri-state population, arguing the DPS was not sufficiently discrete to warrant ESA protection. After completing a status review in June 2009, the Service concluded the tri-state population was a valid DPS because it was “discrete” and “significant.” Accordingly, the Service determined that delisting was not warranted in January 2010. The Service also revised the critical habitat designation for the species in October 2011. Plaintiffs challenged both the Service’s decision not to delist the species and the critical habitat designation.

With respect to critical habitat, plaintiffs and the Service sought a consent decree, pursuant to which the Service would vacate the 2011 critical habitat designation, and issue a revised designation by September 2018. The court declined to approve the consent decree, concluding that complete vacatur of the critical habitat designation was not a fair and equitable resolution of plaintiffs’ claims or in the public interest.

Plaintiffs also challenged the Service’s 2010 decision, arguing the Service’s conclusion that the tri-state population was “significant” was arbitrary and capricious under the Administrative Procedure Act. Plaintiffs argued that central California murrelets should not be included in the tri-state murrelet population because they are genetically distinct from the other murrelets in the DPS. Plaintiffs further argued that, if the central California population was not included in the tri-state population, the DPS would not be considered “significant” under the ESA. It was undisputed that the Service had not determined whether the central California population interbreeds with other tri-state populations, which would have shown whether the central California population was genetically distinct. In holding for plaintiffs, the court found it was improper for the Service to conclude that the tri-state DPS was significant without determining whether central California murrelets interbreed with other murrelets in the DPS.

The court rejected plaintiffs’ other arguments regarding the Service’s decision not to delist the species, including with respect to its determination that the tri-state DPS is “discrete.”