By Eve Byron/Courthouse News Service
CHEYENNE, Wyo. (CN) – A Ninth Circuit panel ruled Friday that while whitebark pine trees are warranted for protection under the Endangered Species Act, the U.S. Fish and Wildlife Service acted within its authority to make other species a priority given its limited funds.
In the ruling, a three-judge panel of the Ninth Circuit said Fish and Wildlife isn’t bound to list species as endangered or threatened based solely on the degree of threat they face as demonstrated by the assigned listing priority number, and instead can consider factors outside of those listed in the guidelines.
The panel further held that the service’s decision contained a sufficient “description and evaluation of the reasons and data on which the finding is based” to satisfy the Endangered Species Act.
Initially, the service gave a priorty number for whitebark pine trees of 2 on a scale of 1-12, with 1 being the most imperiled. Later, the federal agency reconsidered the listing and gave the tree species an 8.
“The court said the U.S. Fish and Wildlife Services lacks the resources and budget to do this, and that it was ‘warranted but precluded’ from listing, and that satisfied the requirements under the ESA,” said Matthew Koehler, executive director of the Wildwest Institute, which filed the lawsuit and appeal along with the Alliance for the Wild Rockies. “The panel said the Fish and Wildlife Service’s decision wasn’t arbitrary or capricious because of their lack of funding.”
Koehler said that in his conversations with Fish and Wildlife, they were empathetic with the lawsuit but are defunded to the point that they can’t do their job.
“It’s part of a strategy by certain members of Congress and others to defund the agency,” Koehler said.
Service spokeswoman Anna Munoz said she wouldn’t go so far as to say the service is “empathetic,” but agreed “we are limited in terms of funds to address the listing work load.” Hence the priority plan, she said.
“We are pleased to have the warranted-but-precluded reasoning upheld by the court,” she added.
The whitebark pine is a slow-growing, long-lived, five-needled conifer found in western North America. It grows in poor soils and on steep slopes and windy exposures at the alpine tree line. In western North America, the whitebark pine is considered a keystone species because it increases biodiversity and contributes to critical ecosystem functions. It’s also an important source of food for several species of birds and mammals, including grizzly bears and Clark’s nutcracker.
As the first conifer that may become established after a disturbance, it stabilizes soils and regulates runoff. At higher elevations, snow drifts around the trees, increasing soil moisture and holding it later into the season while also modifying soil temperatures.
Whitebark pine grows slowly, and the survival rate ranges from 56 percent in the first year to 25 percent by the fourth year. It faces “substantial and pervasive decline” throughout most of its range, with threats including white pine blister rust, the mountain pine beetle epidemic, and habitat loss due to climate change.
The debate over its listing goes back to 2008, when the Natural Resources Defense Council petitioned Fish and Wildlife to list the whitebark pine as endangered. The agency determined that emergency listing was not warranted, but after extensive research came to the conclusion that listing was “warranted but precluded” by other species.
“This isn’t just about the whitebark pine, but the viability of the entire high-country ecosystem,” Koehler said. “A lot of species depend on whitebark pine; it’s part of the ecosystem in so many ways, which is collapsing under climate change.”
Circuit Judges William Fletcher, Ronald Gould and N. Randy Smith sat on the panel. Gould wrote the 31-page opinion.