Center for Biological Diversity v. Burgum

The federal district court for the District of Oregon remanded a U.S. Fish and Wildlife Service (FWS) final rule listing the streaked horned lark as threatened rather than endangered and vacated a Section 4(d) rule under the Endangered Species Act (ESA) that extended certain ESA protections for endangered species to the lark. The court found that the listing determination was arbitrary and capricious, including because FWS failed to consider the impact that small population size presently had on the lark. Among the issues identified by the court was the final rule’s failure to “meaningfully analyze small population size in connection with climate change.” Regarding the Section 4(d) rule, the court found that there appeared to be no evidence supporting the rule’s expansion of an exception to the take prohibition for agricultural activity to the entirety of the lark’s range.

Center for Biological Diversity and Audubon Society of Portland filed a complaint in the federal district court for the District of Oregon challenging a U.S. Fish and Wildlife Service (FWS) decision to list the streaked horned lark as threatened rather than endangered and to issue a “special rule” under Section 4(d) of the Endangered Species Act exempting agricultural activities from liability “despite known and serious impacts” on the lark. The complaint alleged that after the remand of a 2013 listing of the species as threatened, the FWS again determined the lark was currently not in danger of extinction throughout all or a significant portion of its range, despite “the ongoing steep decline” in suitable habitat and other threats such as climate change, which causes sea level rise and increased severe weather events that threaten the lark’s Pacific Coast populations.