Judge Recommends New Look at Bid to List Wild Mustangs as Endangered

(CN) – The U.S. Fish and Wildlife Service erred when it rejected a petition by an international advocacy group to list a population of wild horses in Montana as threatened or endangered, a federal judge said Tuesday.

The agency denied a petition brought by Friends of Animals in 2017, saying the group had not complied with a 2016 rule revision that required petitioners to notify the state in question at least 30 days prior to filing under the Endangered Species Act, according to the group’s April 2018 lawsuit.

Mustangs by the side of the road just outside Chinley, Arizona. (Photo by John Harwood via Wikipedia Commons)

Friends of Animals had asked the agency to list the Pryor Mountain wild mustangs as endangered, according to the lawsuit. The group says the Bureau of Land Management’s “appropriate” herd numbers of 90 to 120 horses is too low, and roundups and removals puts the Old Spanish genetic lineage at risk of extinction.

Guy Alsentzer, attorney for Friends of Animals, said in a statement accompanying the lawsuit that the revised rule “chips away at the Endangered Species Act.”

On Tuesday, U.S. Magistrate Judge Timothy J. Cavan of the District of Montana issued a recommendation in favor of Friends of Animals, finding the notice provision “created a mechanism by which the service can obtain targeted information from the state to be considered at the 90-day finding stage, without any opportunity for public comment” – making the rule inconsistent with the Endangered Species Act.

Cavan recommended that Fish and Wildlife’s denial of the Friends of Animals petition be vacated, and the agency ordered to consider the petition and “make an appropriate 90-day finding.”

The magistrate judge did not make a recommendation on the other two arguments brought by Friends of Animals, which had claimed the notice provision extended the statutory deadlines and is inconsistent with the Administrative Procedures Act, stating those “arguments are unpersuasive.”

Friends of Animals nonetheless praised Cavan’s findings.

The ESA [Endangered Species Act] is the strongest law we have to prevent species from being lost forever and preserving biodiversity. The ESA citizen petition process is a critical part of the ESA and we are happy with the judge’s findings and recommendations that preserve this process,” Friends of Animals said in a statement. “The finding and recommendations recognize that regulations requiring petitioners to notify state agencies, that are often opposed to ESA protections, prior to submitting a petition violates the law.”

A U.S. Fish and Wildlife Service spokesperson did not respond to requests for comment by press time.

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