Palouse Prairie Foundation v. KEN SALAZAR, Secretary of the Interior

34 This disposition is not appropriate for publication and is not precedent*
35 except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PALOUSE PRAIRIE FOUNDATION;
PALOUSE AUDOBON SOCIETY;
FRIENDS OF THE CLEARWATER; O.
LYNNE NELSON; STEVE PAULSON;
CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiffs - Appellants,
v.
KEN SALAZAR, Secretary of the Interior;
US DEPARTMENT OF INTERIOR;
ROWAN GOULD, Director, U.S. Fish &
Wildlife Service; UNITED STATES FISH
AND WILDLIFE SERVICE,
Defendants - Appellees.
No. 09-35294
D.C. No. 2:08-cv-00032-FVS
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Argued and Submitted February 3, 2010
Seattle, Washington
FILED
JUN 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.
Petitioners-Appellants petitioned the U.S. Fish and Wildlife Service to list
the giant Palouse earthworm as an endangered or threatened species. The Service
issued a negative 90-day finding that rejected the petition, concluding that there
was insufficient evidence to indicate that the earthworm may be threatened.
Petitioner-Appellants brought suit in the Eastern District of Washington, claiming
that the Service applied the wrong standard in its 90-day finding. The district court
granted summary judgment to the Service. We affirm the district court.
The district court’s grant of summary judgment is reviewed de novo. See
Brewster v. Shasta County, 275 F.3d 803, 806 (9th Cir. 2001). Judicial review of
the Service’s 90-day finding is governed by the Administrative Procedure Act. 5
U.S.C. §§ 701–706; Western Watershed Projects v. Matejko, 468 F.3d 1099, 1107
(9th Cir. 2006). The 90-day finding may be set aside if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A).
The Service expressly stated the correct standard in its 90-day finding. It
recognized that it must issue a positive 90-day finding if the petitioner presented
“that amount of information that would lead a reasonable person to believe that
[listing] may be warranted.” See 50 C.F.R. § 424.14(b)(1). Also, it noted that at

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the preliminary stage of the 90-day finding, the Service may not conduct
“additional research” nor “subject the petition to rigorous critical review” and that
it must “accept the petitioners’ sources and characterizations of the information, to
the extent that they appear based on accepted scientific principles . . . unless [the
Service has] specific information to the contrary.”
The Service’s analysis in its 90-day finding does not suggest that it applied a
different standard than the one it stated. Its conclusion that the petition presented
insufficient evidence to indicate that listing of the giant Palouse earthworm may be
warranted is not arbitrary and capricious. Evidence regarding the population of the
giant Palouse earthworm is limited and inconclusive. The petition failed to
identify a single well-designed study determining the current or historical
population and range of the earthworm. The Service reasonably concluded that the
petition failed to demonstrate a threat to the giant Palouse earthworm from
agricultural and residential development of the Palouse bioregion or from exotic
earthworms. The Service therefore had a rationale basis for concluding that a
reasonable person would not believe that the giant Palouse earthworm may be
endangered or threatened based on the information presented in the petition.
AFFIRMED.

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