Entangling the USFWS in Administrative Procedure Act and Securing Reconsideration of Bone Cave Harvestman Delisting

In March 2019, the U.S. District Court for the Western District of Texas overturned the U.S. Fish and Wildlife Service’s (Service) denial of a petition to delist the Bone Cave Harvestman (Texella reyeisi) (BCH).

The BCH is known to occur only in caves in central Texas.  The court found that the Service acted arbitrarily and capriciously, and not in accordance with law when the agency denied a petition to delist the species under the Endangered Species Act (ESA).  (American Stewards of Liberty et. al. vs. Department of Interior et. al., Case 1:15-cv-01174-LY)

This decision represented a victory for our clients, including the American Stewards of Liberty, which provided evidence demonstrating that the known range for the BCH has increased by more than 3,000 percent since the species’ listing and that it can coexist with human development.  Since the Service listed the BCH, development near BCH-occupied caves has been severely restricted, absent separate authorization from the Service. 

American Stewards of Liberty and other Plaintiffs in the case claimed that the Service’s rejection of a 2014 petition to delist the BCH was arbitrary and capricious because, among other things, the Service based its rejection on the petition’s supposed failure to provide BCH population trend data that was unavailable and is, potentially, unattainable.  As noted in the petition, the best available population data for BCH is the evidence of its presence in separate caves or cave clusters.  Since the BCH’s listing in 1988, the number of caves in which the species is known to occur has grown from half a dozen caves to more than 200, with new locations occurring at an average rate of 7.59 new sites per year. 

Ultimately, the court held that the Service’s requirement for population trend data violated the Administrative Procedure Act and remanded the decision back to the Service for a new 90-day finding.  In its ruling, the court noted that Plaintiffs’ most compelling argument was that the Service had required a higher quantum of evidence than is permissible under the Endangered Species Act and implementing regulations governing 90-day findings.  

Specifically, the court held that regulations governing the Service’s review of petitions to list and delist species require a petition present information which is, in fact, available, and that the Service committed a clear error in judgment when the agency called for more evidence than is required under the law.  Pursuant to the ruling, the Service must undertake a fresh review of the 2014 petition and must use available species population information, as opposed to population information the Service admits is impossible to attain.

The court’s ruling also may benefit another Nossaman client, Williamson County, Texas, that intervened in the case.  Despite the fact that the County holds an incidental take permit authorizing impacts to BCH and several other ESA-listed species, the County frequently suffers delays and significant cost increases in connection with needed infrastructure projects, particularly where those infrastructure projects need other federal approvals and where those projects may impact the BCH.

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