Court Rejects Service Listing of Slickspot Peppergrass

In a recent decision (pdf), the United States District Court for the District of Idaho remanded a determination (pdf) by the U.S. Fish and Wildlife Service to list slickspot peppergrass (Lepidium papilliferum), a small, flowering plant in the mustard family, as threatened under the Endangered Species Act.  The controversy  over the listing of the species has spanned more than a decade, resulting in numerous Service determinations and court orders.

Slickspot peppergrass is only found in portions of Idaho.  Idaho's Governor, Butch Otter, and others brought the case challenging the Service's listing determination.  Plaintiffs challenged the listing on a number of grounds.  The Court ruled against plaintiffs on all but one claim discussed below.

As the court explained, the ESA defines "threatened" as "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). In its listing determination, the Service defined the term "foreseeable future" to mean "that period of time over which events can reasonably be anticipated."  Plaintiffs argued and the court agreed that this definition is legally insufficient.  The court reasoned as follows:

"The definition provided by the Service makes no reference to the actual species at issue.  In fact, if this Court upheld the definition, it could conceivably be used for any species. It is generic on its face.  The ESA requires more."

Slip Op. at 38.  In light of the fact that the court rejected plaintiffs other claims regarding among other things the population trend and threats to habitat of the species, it is likely that the controversy over the species will continue.

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