Center for Biological Diversity v. U.S. Fish & Wildlife Service

The federal district court for the District of Columbia vacated and remanded the U.S. Fish and Wildlife Service’s decision not to designate critical habitat for the eastern black rail, a marsh bird that the FWS listed as threatened in 2020 under the Endangered Species Act. The FWS identified habitat and fragmentation, sea level rise and tidal flooding, land management practices, and stochastic events such as extreme flooding and hurricanes as the primary threats to the species. The FWS concluded that it would not be prudent to designate critical habitat because designation could reasonably be expected to increase threats from “overzealous birders.” The court found that the FWS violated the ESA by failing to consider whether critical habitat designation would provide a net benefit to the eastern black rail before determining that designation would not be prudent.

Center for Biological Diversity and Healthy Gulf filed a lawsuit in the federal district court for the District of Columbia seeking to compel designation of critical habitat for the eastern black rail, “a small, elusive, and vulnerable marsh bird” whose presence has declined by 90% over the past 25 years due to habitat loss. The complaint alleged that the U.S. Fish and Wildlife Service had identified several “current primary stressors,” including wetland conversion, water withdrawals, land practices, and rising sea levels, that influenced the eastern black rail’s viability, and had noted “that these stressors, coupled with predicted sea level rise and increasing storm frequency and intensity, will have both a direct and indirect effect on the eastern black rail.” The plaintiffs alleged that the FWS’s determination that designation of critical habitat was “not prudent” was based on “the unsupported allegation that doing so would cause ‘overzealous birders’ to harm” the bird. The complaint alleged that this was not a reasoned explanation and therefore violated the Endangered Species Act and the Administrative Procedure Act.