SAN FRANCISCO (CN) -The Fish and Wildlife Service does not have to de-list a rare seabird that no longer qualifies as a protected population under the Endangered Species Act, the 9th Circuit ruled.
In a 2004 review, the agency determined that the tri-state marbled murrelet – a small, dove-sized bird that nests in mature and old-growth forests in Washington, Oregon and California – could no longer be considered a distinct population segment, but should remain threatened. The service found that the population is not discrete because a neighboring Canadian population is also considered threatened, but the tri-state population is still significant because it occupies one-third of the range of the entire species, which extends north to Alaska. The tri-state population was estimated at 24,000 birds and declining, disqualifying the species for recovery status.
The Coos County Board of Commissioners wanted the birds immediately de-listed following the review, saying the service’s “cautious approach to species protection is illegal.”
However, Judge Berzon ruled that the agency had no duty to de-list the birds as a threatened species. The court accused Coos of shoehorning the five-year review process into petition-process deadlines, upsetting the “delicate balance” of the petition process and the agency-initiated process, which allows for secretary discretion.
The three-judge panel affirmed the finding that Coos lacked jurisdiction or failed to state a claim upon which relief could be granted.