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‘Massive’ ESA lawsuit threatened—again

Agriculture, Congress - Senate, CORRUPTION, Courts, Endangered Species Act, Greenies & grant $, Lawsuits

NEWS

Western Livestock Journal

AUG 26, 2016

By THEODORA JOHNSON, WLJ CORRESPONDENT

—History set to repeat itself; environmental group tries to force USFWS’ hand

Is it 2016 or 2011? Or perhaps just a bad case of déjà vu?

Last Tuesday saw the history of 2011 repeated as an environmental litigation group threatened to sue the U.S. Fish and Wildlife Service (USFWS) to force Endangered Species Act (ESA) decisions on 417 species.

Five years ago saw an ESA “mega-settlement” which forced USFWS to crank out over 1,200 backlogged listing and critical habitat decisions. In return, the two environmental groups that brought the case—Center for Biological Diversity (CBD) and WildEarth Guardians—were expected (although not required) to back off on further litigation and additional listing petitions.

But now, the CBD is threatening to sue again, hoping to force “12-month finding” decisions on this new group of species. In fact, CBD and other groups never did stop filing petitions or lawsuits. Since the 2011 settlement, CBD and others have petitioned roughly 140 species, and CBD and WildEarth Guardians alone have filed over 130 of them since 2013, according to CBD’s own website.

Legal details

The 12-month finding is one step in the ESA listing process. One year after a species is petitioned for listing, USFWS is required to determine whether listing is “not warranted;” “warranted,” which leads to 60 days of public comments, then a final listing decision; or “warranted but precluded,” which places the species on the “candidate” list.

According to CBD, those 12-month findings on the 417 species are anywhere from one to seven years late. The species’ locations span from Washington State to Florida. They include 235 invertebrates (mussels, snails, beetles, etc.), 87 plants, 58 amphibians and reptiles, 27 fish, six birds, and seven mammals.

“This is precisely why the [ESA] is broken,” said Ethan Lane of the Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) in the groups’ statement.

“Groups like [CBD] are attempting to force their agenda on [USFWS] through litigation abuse. Substantive ESA reform is needed now to allow [USFWS] the autonomy necessary to prioritize species conservation according to need, rather than political agenda.”

Litigation: exception or rule?

CBD cites a recent study that found that “lawsuits from conservation groups … have played a key role in speeding protection for imperiled species.” The study was co-authored by CBD’s own Endangered Species Director, Noah Greenwald, and published last month in the academic journal, Biological Conservation.

Under the ESA, anyone can petition to list a species as threatened or endangered. From that point on, USFWS faces multiple deadlines and must issue multiple decisions. Wyoming attorney Karen Budd-Falen, who testified before the U.S. House of Representatives Committee on Oversight and Government Reform on April 20, said the listing process for just one species provides environmental groups with eight different opportunities to sue USFWS. And, she added, the ESA allows litigants to reap attorney fees. She told WLJ that she has seen groups charge $775 per hour for attorney fees. ESA litigation, she said, is a “business decision” on the part of environmental groups, and said it’s having the effect of “shutting down the [USFWS] from implementing the entirety of the ESA.”

Budd-Falen said USFWS is so swamped with petitions and the ensuing lawsuits that species recovery has become an afterthought. As of April, only 63 of the total 2,258 listed species had been delisted. Many of those delisted were not actually recovered; 19 of them were removed because of an error in the original data, and 10 of them, she said, had gone extinct.

Budd-Falen said USFWS is trending away from creating species recovery plans, which are usually a prerequisite to delisting a species.

In the 1990s, 843 species had recovery plans. From 2010 to today, only 177 species have been included in recovery plans.

The ESA requires USFWS to develop recovery plans and measurable objectives that would trigger a species’ delisting. However, the law doesn’t put a time frame on recovery plans and objectives. The lack of an enforceable time frame, Budd-Falen said, adds to USFWS’ propensity of putting recovery plans on the back burner.

Litigation versus science

Budd-Falen stated that one effect of all the litigation has been a shift away from science-based decision making and recovery plan development. Instead, USFWS has turned its focus to meeting court-ordered deadlines.

One of USFWS’ documents says as much: A memorandum from May 20, 2014 states, “Our primary (and perhaps only) focus will be on meeting court-ordered and settlement deadlines for findings…we do not plan to carry out… non-[2011 settlement] findings and proposed rules, or recovery plan revisions.”

The imposition of litigation deadlines has been felt on the ground in various ways, according to Budd-Falen. For example, according to the USFWS, the 2011 settlement prevented it from delaying its listing decision on the lesser-prairie chicken, rather than give the locally-driven and USFWS-approved range-wide conservation plan a chance to work (the decision has since been overturned nationwide by court order).

Similarly, the agency did not have enough time to update the Mexican wolf recovery plan in light of litigation-imposed deadlines.

“In other cases, USFWS has denied requests for extensions of time to comment on [experimental population rules] or has stated that certain activities have not been done because of the requirement imposed by litigation deadlines,” Budd- Falen testified.

Solutions?

In May of 2015, the Obama administration proposed new regulations to slow down listing petitions by requiring more scientific documentation and consultation with state wildlife agencies. However, Budd-Falen told WLJ that USFWS backed off on their proposal after receiving pushback from environmental groups. The revised proposal, she said, makes very little changes to the current procedures.

“Congress needs to fix [the ESA] so that there’s either an annual limit on petitions, or added flexibility on time frames,” she told WLJ.

Budd-Falen reported she has testified at least seven times on ESA problems over the years, but that so far Congress hasn’t enacted any reforms to the 1972 act. Several worthy bills have been introduced in recent years though, she said. They would have required more scientific rigor in ESA decisions; public posting of scientific documentation; capping of attorney fees; and specific involvement of state, local and tribal governments for species on their land.

“Congress has got to take away the cause of action— the courts can’t do it,” Budd- Falen said. “Congress has got to get its collective act together.” — Theodora Johnson, WLJ Correspondent

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