Kempthorne

The Center for Biological Diversity and the Pacific Rivers Council (collectively, the Center) appeal the district court’s summary judgment in favor of the Secretary of the Interior, and the Director of the U.S. Fish and Wildlife Service (collectively, the Service) in this suit under the Endangered Species Act (ESA). 16 U.S.C. § 1531 et seq. The Center challenges the Service’s finding under 16 U.S.C. § 1533 (b)(3)(B)(iii) that listing of the Sierra Nevada Mountain Yellow-Legged Frog (the Frog) as an endangered species is “warranted but precluded.” For such a finding, §§ 1533(b)(3)(B)(iii)(I) and (II) require the Service to identify proposals for other listings that preclude listing the Frog and to find that expeditious progress is being made to list qualified species. Although the Service did not do so in its decision, the district court upheld the finding of “warranted but precluded” because the Service’s path could reasonably be discerned. We conclude that this option is not available under the ESA, which expressly directs the Service, when making a “warranted but precluded” finding, to “publish such finding in the Federal Register, together with a description and evaluation of…