Norton

We are asked to decide whether the Fish and Wildlife Service (“FWS”) has an enforceable duty promptly to withdraw a threatened species from the protections of the Endangered Species Act (the “ESA” or the “Act”), 16 U.S.C. §§ 1531-1544 , after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty.

I. BACKGROUND

The Coos County Board of County Commissioners (“Coos County”) brought this action under the ESA’s citizen suit provision, 16 U.S.C. § 1540 (g), and under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559 . The suit rests on the results of a FWS species status review of the marbled murrelet, a rare seabird that nests in mature and old-growth forests. See generally U.S. Fish & Wildlife Service, Marbled Murrelet 5-Year Review (“Five Year Review”). The murrelets living in Washington, Oregon, and California— which we will refer to as the tri-state murrelets—are the protected population. The tri-state murrelets—and only the tristate murrelets—were listed under the ESA as a “threatened species,” after the detailed…