Biodiversity Legal Foundation v. Badgley: Good news for endangered species act advocates, bad news for at-risk species

In Biodiversity Legal Foundation v. Badgley, the Ninth Circuit held that the U.S. Fish and Wildlife Service cannot delay the initial finding to list a species as threatened or endangered beyond the mandatory deadline for making a final determination to list the species. The court held that under the Endangered Species Act, both decisions must be made within twelve months of receiving the listing petition. The court rejected the Service's arguments that funding constraints prevent timely final determinations. However, the decision failed to elucidate permissible reasons for delaying the initial finding for up to a year. It also failed to determine whether the agency's Listing Priority Guidance, which relegates new listing petitions to the bottom of the Service's priority list, is valid. Moreover, while the decision will clearly benefit species' advocates by reining in agency delay, it may actually harm at-risk species that lack petitioners vying for their listing.