May 132011

Well, better late than never, I suppose, but still, it's about time we paid a bit of attention to the settlement between WildEarth Guardians and the Fish and Wildlife Service that would require FWS to resolve the conservation status of more than 250 species.

As the kids say, ya think?

But before we get to the initial publicity about the agreement, let's note that the Center for Biological Diversity has asked the court to "stay a ruling on the pending joint motion" until it has a chance to thoroughly evaluate the agreement and respond substantively, and until the court has an opportunity to assess fairness, adequacy, and reasonableness of the proposed agreement." (See also declaration of CBD's Noah Greenwald)

U.S. District Judge Emmet G. Sullivan Jr. has scheduled a status hearing in the case for Tuesday, May 17 at 11 a.m. He ordered the parties to come back to him by noon Monday, May 16, with a "proposed joint recommendation for further proceedings. ... In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time." [Update: See latest post.]

CBD said WildEarth Guardians and FWS had been "conducting settlement negotiations without involving or informing the center." In addition, CBD said, in its motion filed Wednesday (May 11), that it "learned for the first time yesterday of the proposed settlement agreement between WEG and federal defendants, who claim that the proposed agreement will 'resolve CBD’s claims.' Neither WEG nor [FWS] conferred with the center prior to filing their joint motion and proposed settlement agreement."

In the Washington Post, CBD Executive Director Kieran Suckling was quoted as saying the center pulled out of talks with FWS "at the last hour":

Although Tuesday’s agreement appears to resolve the legal impasse that has dogged most of these species, it still needs to be accepted by the court, and it remains unclear whether the Center for Biological Diversity will sign off. The center petitioned on 250 of the species identified in the settlement. Kieran Suckling, who heads the group, said in an interview that his organization pulled out of talks with Interior Department officials “at the last hour” because the deal would have limited the number of petitions it could file and did not include key species such as the Pacific walrus and the American wolverine.

The next day, CBD filed its motion to stay.

WildEarth Guardians responded Thursday (May 12). "CBD was included in the vast majority of the extensive and long-running settlement discussions supervised by the court-appointed mediator, Mr. Robert Fisher," the group said. "There is no rule barring the parties to negotiations from talking separately."

In a separate filing on May 11, the government and WEG said "[a]lthough CBD is not a signatory to the agreement, the signatory parties believe that the court’s approval of the agreement will resolve all of CBD’s claims in this [MultiDistrict Litigation] proceeding, and therefore the service will file a motion to dismiss CBD’s claims as moot or, if CBD is amenable, a stipulation of dismissal."

In a work plan issued Tuesday and filed with the U.S. District Court for the District of Columbia, FWS said it would systematically review 251 candidate species over six years.

In a joint motion filed with the court (Case No. 10-377, D.D.C.), FWS said it was agreeing "to take certain specified ESA Section 4 actions during fiscal years 2011 and 2012, including issuance of many initial 90-day and 12-month findings on petitions to list species as well as proposed listing rules or not warranted findings for several 'candidate' species for which the service has previously found that listing is warranted but precluded by higher-priority actions."

From fiscal years 2013 through 2016, FWS said it would "issue proposed listing rules or not-warranted findings for all remaining existing candidate species (as of Nov. 10, 2010)."

In return, WildEarth Guardians has agreed "not to sue the service on allegedly untimely petition findings or to challenge the service’s progress in listing candidate species during the six-year term of the agreement plus six months (i.e., through March 31, 2017). Also, Guardians would agree to a cap on the number of new listing petitions" while the agreement is in effect.

"In total, [FWS] would make initial petition findings for over 600 species and issue proposed listing rules or not warranted findings for at least 251 species," the joint motion said.

The following links have been cut and pasted from FWS's page on the work plan.

Learn more about the 251 species included in the work plan, including which ones are located in your state.

Press Release

Listing Work Plan Stipulated Settlement Agreement

Listing Work Plan Joint Motion for Approval of the Stipulated Settlement Agreement

Frequently asked questions

Analysis: Three attorneys from Van Ness Feldman summarize and opine on the settlement.  Excerpt: "One consideration not fully detailed in the settlement agreement is the availability and scope of public input into the candidate species review process.  Many of the candidate species designations were conducted years ago, and it is unclear to what extent FWS now has the best available scientific and commercial data regarding the species’ present status.  Given these considerations, this matter will require a significant amount of resources and attention from FWS, states, interested organizations and individuals affected by these candidate species reviews."

More news...

Tony Davis of the Arizona Daily Star has the story on the dropping of charges against a jaguar whistleblower:

"Criminal charges were dismissed Thursday against whistle-blower Janay Brun in return for her admission that she was involved in an attempt to capture jaguar Macho B without "authorization or permission."

"The dismissal of misdemeanor charges alleging violations of the federal Endangered Species Act ends the two-year criminal investigation of Macho B's capture, a spokesman for the U.S. Attorney's Office said. No charges are planned against anyone else, said spokesman Robbie Sherwood."

The New York Times has a "Coast-to-Coast Guide to Endangered Species" in its Travel section (posted Friday, May 13)

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