Court Upholds Listing of Healthy Species
Posted in Court Decisions

On June 12, 2012, the United States District Court for the District of Columbia issued a decision (pdf) upholding the listing of the shovelnose sturgeon (Scaphyrhynchus platorynchus) as a threatened species, although it is by all accounts thriving, and upheld a partial ban on commercial fishing of the shovelnose sturgeon, despite the lack of a similar ban on recreational fishing.  The Court upheld the foregoing actions by the U.S. Fish and Wildlife Service (Service) because the shovelnose sturgeon is almost identical in appearance to the pallid sturgeon (Scaphirhynchus albus), an endangered species.

Section 4(e) of the federal Endangered Species Act (ESA) authorizes the listing of a healthy species if all of the following are found:

(A) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;

(B) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and

(C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of [the ESA].

After the Service listed the shovelnose sturgeon, a popular commercial fish inhabiting the Missouri and Mississippi river basins, whose roe are a common ingredient for many caviar, the Illinois Commercial Fishing Association filed an action in federal court challenging the decision under the Administrative Procedure Act (APA), the ESA, the National Environmental Policy Act, and the Regulatory Flexibility Act.  After dropping the latter two claims early on, the Court addressed the APA and ESA claims.  

Foreshadowing its ultimate decision, the Court stated that when reviewing "rule makings such as this one, the threshold for surviving judicial review is a low one.  Where, as here, the agency's technical expertise is involved, the Court 'must look at the decision not as the chemist, biologist, or statistician that [it is] qualified neither by training nor experience to be, but as a reviewing court exercising [its] narrowly defined duty of holding agencies to certain minimal standards of rationality."  Then, analyzing the record, the Court found that there was a wealth of evidence to support the three factors for listing.  Specifically, the Court found that there was evidence that fish biologists and commercial fisherman have trouble distinguishing between the pallid and shovelnose sturgeon; that as a result of the inability to distinguish between the species, commercial fishing of shovelnose sturgeon represents a significant threat to the survival of the pallid sturgeon; that a prohibition on take of the shovelnose sturgeon in areas where its habitat overlaps with the pallid sturgeon will substantially advance law enforcement efforts to protect the pallid sturgeon; and that such a prohibition will further the ESA's goal of conserving the pallid sturgeon.

The Court also rejected a handful of other arguments, including the claim that the rule prohibiting take was arbitrary and capricious because it was limited to commercial activities, finding that there was substantial evidence to support the finding that commercial fishing as opposed to recreational fishing posed a greater risk to the survival of the pallid sturgeon.

Thus, the Court upheld the Service's listing of a species that is by all accounts healthy and thriving.


  • Benjamin Z. Rubin

    Ben Rubin assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters dealing with the Federal and State Endangered Species Act ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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