Background
In 2019, the U.S. Fish and Wildlife Service listed the Northern Subspecies of scarlet macaw as endangered and the Northern distinct population segment (DPS) of the Southern Subspecies as threatened. It also treated the Southern DPS as threatened based on its similarity in appearance to the other macaw populations.
Friends of Animals sued under the Administrative Procedure Act, arguing that the Service also had to consider treating the already-threatened Northern DPS as endangered because it resembles the endangered Northern Subspecies. The district court agreed that the Service’s contrary reading of ESA Section 1533(e) was flawed and remanded for further agency explanation. The Service appealed.
The Court’s Holding
The D.C. Circuit reversed. Section 1533(e)’s similarity-of-appearance authority permits the Service to treat an unlisted species as endangered or threatened when it closely resembles a listed species and the statutory conditions are met. It does not authorize the Service to use that provision to treat a species already listed as threatened as endangered.
The court held that the statute’s repeated references to an “unlisted species,” read in the context of the ESA’s use of “listed” as a term of art, unambiguously limit the provision to species absent from the endangered and threatened lists. A contemporaneous regulation likewise supported that interpretation. Although the result may appear counterintuitive, the ESA separately allows the Service to provide threatened species with additional protections under Section 1533(d).
Key Takeaways
- ESA Section 1533(e) does not authorize similarity-of-appearance treatment for a species already listed as threatened or endangered.
- The Service timely appealed because the district court’s later order, which set the remand’s parameters and duration, was the final appealable decision.
- Agency compliance with a remand order did not moot the Service’s challenge to the district court’s legal ruling.
Why It Matters
The decision confines the ESA’s look-alike provision to enforcement protection for unlisted species that are difficult to distinguish from listed species. Conservation groups cannot use Section 1533(e) to seek an effective uplisting of an already-listed threatened species.
At the same time, the court emphasized that the Service retains authority under Section 1533(d) to adopt stronger, species-specific protections for threatened species when necessary and advisable for conservation.