On April 28, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the District of Montana’s finding that the U.S. Fish and Wildlife Service’s (Service) determination that listing the whitebark pine (Pinus albicaulis) as a threatened or endangered species is “warranted but precluded.”  Wildwest Inst. v. Kurth, No. 14-35431 (9th Cir. Apr. 28, 2017). Two environmental groups, Wildwest Institute and the Alliance for the Wild Rockies (Plaintiffs), filed a lawsuit challenging the Service’s determination, asserting that the Service violated the Endangered Species Act (ESA) by (1) not strictly following the Service’s listing priority guidelines; (2) considering factors outside of the guidelines; and (3) finding that listing the whitebark pine was precluded by species with a lower degree of threat without providing individualized explanations for each of the precluding species.  Plaintiffs also argued that the Service inappropriately relied on budget limitations and court-ordered listing deadlines.

Plaintiffs’ arguments focused on the legislative history of the ESA and the listing priority number that the Service had assigned to the whitebark pine as compared to other species that precluded its listing.  The Ninth Circuit rejected Plaintiffs’ interpretation of the legislative history, finding instead that the relevant portion of the ESA is clear on its face.  The court then found that the ESA and the Service’s listing priority guidelines provided room for flexibility, and that nothing in the ESA, legislative history or guidelines requires the Service to make its listing decisions based solely on the listing priority number assigned to a species.  The Ninth Circuit also concluded that the Service’s concise discussion of the other precluding species was appropriate.  Finally, the Ninth Circuit noted that it was appropriate for the Service to consider budgets and court-ordered deadlines for other species when making a “warranted but precluded” finding.