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    FWS 12-month finding on Arizona bald eagles thrown out

    Posted by Steve Davies at 7:30 pm Court calls, Daily Links, ESA, Fish and Wildlife Service, Listings
    Nov 302011

    The Fish and Wildlife Service’s 12-month finding on bald eagles in Arizona was procedurally flawed, a federal judge ruled today.

    Bald eagle (Photo by Mike Lockert, FWS)

    (Editor’s note: We initially reported that the judge found the delisting decision was “illegal,” but it appears that for now, the eagle is still off the list in Arizona. As the judge said in his order, “Plaintiffs also ask the court to enjoin [FWS] from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand. Defendants [FWS] seek an opportunity to brief the propriety of injunctive relief before the court imposes such a remedy. The court will establish a short briefing schedule and resolve the issue of injunctive relief in the next several weeks.”)

    The judge directed the parties to submit briefs by Dec. 16 on the plaintiffs’ request that the court enjoin FWS “from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand.”

    A couple of quick excerpts from U.S. District Judge David G. Campbell’s opinion:

    “The Court will set aside the 12-month finding as an abuse of discretion and require FWS to complete a new 12-month finding. Because it does not appear that the status review process was procedurally flawed, the Court will not require FWS to start the process over again with notice and public comment. The Court instead will require FWS to complete a new 12-month finding based on information gathered and consultations completed during the status review conducted in response to Judge Murguia’s order. The Court expresses no view on the proper outcome of the new 12-month finding.”

    “This Court agrees that the 2007 delisting rule was not a valid status review for the desert eagle. FWS did not comply with the notice, comment, and consultation requirements established by statute and regulations for a status review and 12-month finding. See 16 U.S.C. § 1533(b)(3)(A), (B); 50 C.F.R. § 424.14(b)(3), 15(a) & (c). As a result, the 2007 delisting rule should not have become FWS’s de facto decision on the DPS issue, to be departed from only for compelling reasons. An invalid status review should not trump a valid status review. Findings reached without appropriate notice, comment, and consultation should not become an agency’s presumptive decision. Such a procedure flies in the face of the notice, comment, and consultations requirements of the law.”

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    Responding to court's order, FWS will consider availability of whitebark pine as food source for Greater Yellowstone grizzlies (news release)

    Posted by Steve Davies at 12:16 pm Court calls, Daily Links, Fish and Wildlife Service, Listings
    Nov 242011

    For Release on November 23, 2011
    Contact: Christopher Servheen, 406-243-4903

    Greater Yellowstone Area Population of Grizzly Bears Remains Under Federal Protection
    Service to Evaluate New Information Regarding Whitebark Pine as Food Source

    The 9th Circuit Court Appeals ruled on November 22, 2011 that the population of grizzly bears in the Greater Yellowstone Area, which includes northwestern Wyoming, southern Montana, and northeastern Idaho, should remain federally protected under the Endangered Species Act (ESA).

    While the ruling means that the population will remain listed for the time being, the court also affirmed the U.S. Fish and Wildlife Service’s (Service) determination that the existing regulatory mechanisms are adequate to protect grizzlies in the Yellowstone area. The Service believes the ruling provides a clear path for eventual delisting of grizzly bears in the area once the agency analyzes and clarifies the relationship between declines in whitebark pine and grizzly bear recovery.

    “Our next step will be to better explain the relationship between whitebark pine and grizzly bear population recovery and health in the Yellowstone area. We will work with Federal and State agencies and can also call on the Great Northern Landscape Conservation Cooperative and our management partners including the Interagency Grizzly Bear Committee to help provide robust scientific information to support this effort,” said Steve Guertin, the Service’s Director of the Mountain-Prairie Region. “Through this cooperative effort, we will ensure the best available science regarding climate change and other stressors on grizzly bears and other wildlife species in the Northern Rockies is used to support our decision-making.”

    This finding for the Service recognizes the excellent work and commitment of federal and state partners to conserve grizzly bears by continuing to implement the conservation strategy developed by federal and state scientists, which incorporates intensive monitoring of the Yellowstone bears, their food sources, and their habitat.

    In moving forward, the Service will carefully assemble all the biological information on the relationship between whitebark pine cone production and grizzly recovery and develop a detailed analysis of these relationships. This scientific analysis will be the basis for a new proposal to recover and delist this grizzly population.

    The Service’s efforts to delist grizzlies in the area dates back to March 2007 when the Service announced that the Greater Yellowstone Area population of grizzly bears was a recovered and should be removed from the list of threatened or endangered species. However, in September 2009, the Federal District Court in Missoula issued an order vacating the delisting of the Greater Yellowstone Area grizzly population. In compliance with this order, the Yellowstone grizzly population was once again protected as a threatened population under the ESA.

    The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals and commitment to public service. For more information on our work and the people who make it happen, visit: www.fws.gov

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    FWS did not adequately consider loss of whitebark pine in delisting of Yellowstone grizzly, 9th Circuit finds, affirming lower court ruling

    Posted by Steve Davies at 3:09 pm Court calls, Daily Links, Fish and Wildlife Service, Listings
    Nov 222011

    The Ninth Circuit has partially affirmed a lower court ruling that found the Fish and Wildlife Service’s delisting of Yellowstone grizzly bears was unlawful (Greater Yellowstone Coalition v.  Servheen, 09-36100).

    Ursus arctos horribilis (credit: USFWS)

    Specifically, FWS did not “articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly,” the court said.

    “[O]f critical importance …, the [service's delisting] rule repeatedly acknowledges a  ‘well-documented association’ between reduced whitebark pine seed abundance and increased grizzly mortality,” the court said.

    In a news release issued the day after the decision, FWS said it would evaluate the availability of whitebark pine as a food source.

    “Based on the evidence of a relationship between reduced whitebark pine seed availability, increased grizzly mortality, and reduced grizzly reproduction, it is logical to conclude that an overall decline in the region’s whitebark pine population would have a negative effect on its grizzly bear population,” the court said. “The service advances several rationales in the rule to support its conclusion that food shortages caused by whitebark pine declines are nonetheless ‘not a threat’ to the Yellowstone grizzly.” However, the court found “all of [those rationales] lacking.”

    Circuit Judge Sidney R. Thomas partially concurred with his fellow judges, but also partially dissented, concluding that FWS relied on voluntary measures that may or may not be implemented. (See below for an excerpt.) The two judges in the majority were Circuit Judges Susan P. Graber and Richard C. Tallman. Tallman wrote the opinion.

    Here are a couple of paragraphs from the beginning of the opinion that summarize the issues and the court’s conclusion:

    The service’s delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the service’s delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone grizzly population; and second, whether the service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA’s staunch protections.

    As to the first issue, we affirm the district court’s ruling that the service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the service’s determination regarding the adequacy of existing regulatory mechanisms was reasonable.

    In his dissent, Circuit Judge Thomas said he agreed with the majority’s conclusion that FWS did not “articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear.” But breaking with the majority, Thomas also said he would have agreed with U.S. District Judge Donald Molloy “that the agency also erred in concluding the Yellowstone grizzly is not threatened by  ‘the inadequacy of regulatory mechanisms,’ ” specifically the “Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area.”

    The service’s reliance on voluntary action is contrary to law. The phrase  “regulatory mechanism” plainly does not encompass voluntary, unenforceable measures such as the Strategy and many of its components. Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1155 (D. Or. 1998) (interpreting 16 U.S.C. § 1533(a)(1)(D) to mean that “the [agency] must base its decision on current, enforceable measures”). The service therefore erred by considering the strategy’s voluntary and unenforceable components in its Factor D determination. Good intentions are not rules of law. Unenforceable aspirational goals are not regulatory mechanisms. Promises to monitor, review, and convene committees do not satisfy the statutory requirement. See Norton v. So. Utah Wilderness Alliance, 542 U.S. 55, 72 (2004) (noting that monitoring is not a legally binding commitment under the APA). Thus, the rule must be vacated for non-compliance with 16 U.S.C. § 1533(a)(1)(D).  See State Farm, 463 U.S. at 43 (“[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . .”).

    Links

    Grizzly bear species profile from FWS

    FWS FR notice reinstating threatened status for Greater Yellowstone grizzlies (3/26/10)

     

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    Judge upholds NMFS' "endangered" listing of Cook Inlet beluga

    Posted by Steve Davies at 8:18 pm Court calls, Daily Links, Listings, NMFS
    Nov 212011

    Go here for U.S. District Judge Royce Lamberth’s opinion in State of Alaska and Escopeta Oil Company v. NOAA and Alaska Center for the Environment (10-927 RCL, D.D.C.)

    Thanks, Royce. Stop by if you're in the neighborhood.

    Here’s the judge’s summary of his 25-page opinion, issued Nov. 21, 2011:

    “The absence of an expected change is sometimes indistinguishable from the presence of an observed one. So when the best available science predicts that a recently enacted ban on subsistence hunting will reverse the abrupt depletion of a species, a decade without any noticeable recovery in the species’ population should raise a concern that the true cause of its decline has not been fully addressed. The species in this case—beluga whales in Alaska’s Cook Inlet—was nearly wiped out by a catastrophic spree of subsistence whaling between 1994 and 1998. More than a decade later, and despite the passage of a legislative moratorium on subsistence hunting in 1999, the population of Cook Inlet beluga whales has failed to show any appreciable signs of recovery. For this and other reasons, the National Marine Fisheries Service granted a petition to list the species as endangered under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. The Service’s decision is rational and is supported by the administrative record, and the defendants are therefore entitled to summary judgment.”

    More to come — SD

    Links

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    Gray wolf appeal argued in Ninth Circuit (listen)

    Posted by Steve Davies at 2:23 pm Congress, Court calls, Daily Links, Listings
    Nov 132011

    Bumble bee gets shot at protection, gray wolf docs released, butterfly emergency-listed, coneflower delisted, more...

    Posted by Steve Davies at 4:20 pm Daily Links, Listings
    Sep 152011

    Franklin’s bumble bee positive 90-day finding issued (with news release  of Sept. 12, 2011)

    NatureServe Explorer report on the bee

    Recent FWS news releases on species

    Fish and Wildlife Service Posts Supplementary Materials on Gray Wolf in the Eastern United States  (Sept. 14, 2011) (and Aug. 26 press release)

    Service Announces Bald Eagles Nesting in Sonoran Desert Area of Central Arizona Removed from the List of Endangered and Threatened Wildlife  (Sept. 2, 2011)

    Fish and Wildlife Service Proposes to End Southern Sea Otter Translocation Program (Aug. 17, 2011)

    Salazar Announces Recovery of Lake Erie Watersnake   (Aug. 15, 2011)

    FWS emergency lists Miami Blue butterfly as endangered   (Aug. 9, 2011)

    Conservation Success: Tennessee Purple Coneflower Delisted   (Aug. 4, 2011)

    Hundreds of species covered in court-approved settlements

    Posted by Steve Davies at 5:09 pm Court calls, Daily Links, Listings
    Sep 132011

    Update Sept. 14, 2:40 pm

    What were we thinking? We posted the news on the listing settlements without linking to U.S. District Judge Emmet Sullivan’s memorandum opinion and order formally approving them. The settlements require the Fish and Wildlife Service to make listing decisions (petition findings and final listing determinations, for example) on hundreds of species over the next seven years.

    Let’s get the links out of the way first. Here is the Center for Biological Diversity’s news release, which of course links to its settlement with FWS.

    Then there’s WildEarth Guardians’ page on its own settlement agreement, also approved by Sullivan Friday. There’s also this video on the species covered by the settlement.

    Fish and Wildlife Service has its own web page on the agreements. Linked there are the service’s work plan and other documents. I’ve taken the liberty of pasting some of the service’s links below.

    • Media coverage: Here’s a link to some news stories on the settlements.

    Whitebark pine listing "warranted but precluded," FWS says

    Posted by Steve Davies at 2:14 pm Budget, Daily Links, Listings
    Jul 192011

    The Fish and Wildlife Service has determined that whitebark pine (Pinus albicaulis) should be listed as threatened or endangered, but that “[w]ork on a proposed listing determination . . . is precluded by work on higher priority listing actions with absolute statutory, court-ordered, or court-approved deadlines and final listing determinations.”

    The pine, which is found in seven Western states, faces “high-magnitude, imminent threats,” but the service said it can’t continue to work on it without the money.

    Whitebark mortality in Yellowstone ecosystem (from NRDC_Media)

    Dead and dying whitebark pines near Goodwin Lake, Gros Ventre Range, Wyoming (Photo by Whitney Leonard for NRDC)

    The Natural Resources Defense Council, which petitioned the service and then sued to force a response, said the pine “is the first broadly dispersed tree that the federal government has clearly pegged as a climate casualty.” NRDC added that “A recent study shows 80 percent of the whitebark pine forests in the Greater Yellowstone Ecosystem are already dead or dying.”

    Whitebark pine is an important food source for grizzly bears.

    “The rapid decline of whitebark pine is one of the most dramatic signs of how quickly our mountain ecosystems are warming,” NRDC’s Sylvia Fallon, lead author of the petition, said. “There are things we can do to buoy these trees and the ecosystems that depend on them for a while–but we have to get to the hard work of dealing with the underlying climate issue before a host of other species join whitebark on the long, hot march to extinction.”

    Mildly edited excerpts from 12-month finding:

    Climate change is expected to significantly decrease the probability of rangewide persistence of Pinus albicaulis. Projections from an empirically based bioclimatic model . . .  showed a rangewide distribution decline of 70 percent and an average elevation loss of 333 m (1,093 ft) for the decade beginning in 2030 (Warwell et al. 2007, p. 2). At the end of the century, less than 3 percent of currently suitable habitat is expected to remain (Warwell et al. 2007, p. 2). Similarly, climate envelope modeling on P. albicaulis distribution in British Columbia estimated a potential decrease of 70 percent of currently suitable habitat by the year 2055 (Hamman and Wang 2006, p. 2783). The area occupied by P. albicaulis in the Greater Yellowstone Ecosystem also is predicted to be significantly reduced with increasing temperature under various climate change scenarios (Schrag et al. 2007, p. 6). Pinus albicaulis is predicted to be nearly extirpated under a scenario of warming only and warming with a concomitant increase in precipitation (Schrag et al. 2007, p. 7). Fire suppression has had unintended negative impacts on Pinus albicaulis populations (Keane 2001a, entire), due to this shift from a natural fire regime to a managed fire regime. Stands once dominated by P. albicaulis have undergone succession to more shade-tolerant conifers (Arno et al. 1993 in Keane et al. 1994, p. 225; Flanagan et al. 1998, p. 307). Once shade-tolerant conifer species become firmly established, the habitat is effectively lost to P. albicaulis until a disturbance like fire once again opens the area for P. albicaulis regeneration.

    Direct habitat loss from climate change is anticipated to occur with current habitats becoming unsuitable for P. albicaulis as temperatures increase and soil moisture availability decreases (Hamman and Wang 2006, p. 2783; Schrag et al. 2007, p. 8; Aitken et al. 2008, p. 103). Habitat loss is expected because (1) temperatures become so warm that they exceed the thermal tolerance of P. albicaulis and the species is unable to survive or (2) warmer temperatures favor other species of conifer that currently cannot compete with P. albicaulis in cold high-elevation habitats. Pinus albicaulis is widely distributed and thus likely has a wide range of tolerance to varying temperatures (Keane 2011c, pers.comm.). Therefore, increasing competition from other species that cannot normally persist in current P. albicaulis habitats is possibly the more probable climate-driven mechanism for habitat loss. Historical (paleoecological) evidence indicates that plant species have generally responded to past climate change through migration, and that adaptation to changing climate conditions is less likely to occur (Bradshaw and McNeilly 1991, p. 12; Huntley 1991, p. 19). Adaptation to a change in habitat conditions as a result of a changing climate is even more unlikely for P. albicaulis, given its very long generation time of approximately 60 years (Bradshaw and McNeilly 1991, p. 10). The rate of latitudinal plant migration during past warming and cooling events is estimated to have been on the order of 100 m (328 ft) per year (Aitken et al. 2008, p. 96). Given the current and anticipated rates of global climate change, migration rates will potentially need to be substantially higher than those measured in historic pollen records to sustain the species over time. A migration rate of at least a magnitude higher (1,000 m (3,280 ft)) per year is estimated to be necessary in order for tree species to be capable of tracking suitable habitats under projected warming trends

    [W]arming temperatures are expected to result in direct habitat loss and are also currently causing an increase in populations of the predatory mountain pine beetle resulting in significant mortality rangewide.

    Distribution

    Pinus albicaulis occurs in scattered areas of the warm and dry Great Basin but it typically occurs on cold and windy high-elevation or high-latitude sites in western North America. As a result, many stands are geographically isolated (Arno and Hoff 1989, p. 1; Keane et al. 2010, p. 13). Its range extends longitudinally between 107 and 128 degrees west and latitudinally between 27 and 55 degrees north (McCaughey and Schmidt 2001, p. 33). The distribution of P. albicaulis includes coastal and Rocky Mountain ranges that are connected by scattered populations in northeastern Washington and southeastern British Columbia (Arno and Hoff 1990, p. 268; Keane et al. 2010, p. 13). The coastal distribution of P. albicaulis extends from the Bulkley Mountains in British Columbia to the northeastern Olympic Mountains and Cascade Range of Washington and Oregon, to the Kern River of the Sierra Nevada Range of east-central California (Arno and Hoff 1990, p. 268). Isolated stands of P. albicaulis are known from the Blue and Wallowa Mountains in northeastern Oregon and the subalpine and montane zones of mountains in northeastern California, south-central Oregon, and northern Nevada (Arno and Hoff 1990, p. 268; Keane et al. 2010, p. 13). The Rocky Mountain distribution of P. albicaulis ranges from northern British Columbia and Alberta to Idaho, Montana, Wyoming, and Nevada (Arno and Hoff 1990, p. 268; Keane et al. 2010, p. 13), with extensive stands occurring in the Yellowstone ecosystem (McCaughey and Schmidt 2001, p. 33). The Wind River Range in Wyoming is the eastern most distribution of the species (Arno and Hoff 1990, p. 268; McCaughey and Schmidt 2001, p. 33) (Figure 1).

    Links

    Photo of dead and dying whitebark pines near Goodwin Lake (Wyo.)

    Whitebark pine info from NRDC’s page (result of search for “whitebark”)

    Petition filed by NRDC

    Matt Skoglund (NRDC) blog post

    Coverage in Washington Post

    House appropriators seek to block FWS species listings

    Posted by Steve Davies at 12:54 pm Budget, Congress, Listings
    Jul 152011

    Congress may be heading towards enacting another moratorium on species listings.

    The last time that happened, it was 1995. Bill Clinton was president, and then, as now, Republicans controlled the House of Representatives. Clinton declined to veto an omnibus spending bill that prohibited the Fish and Wildlife Service from issuing any final listing rules.

    This time around, the Democrat in the White House is Barack Obama, and if history is any guide, counting on him to hold up a spending bill simply because it eliminates funding for species listings is probably a long shot.

    But first, the latest listing moratorium has to get through the Senate. Neither the relevant subcommittee in that chamber, nor the full committee, has scheduled a markup of its version of the bill.

    The action in the House came on Tuesday, when the House Appropriations Committee passed a spending bill that would prohibit FWS from expending any of its funds to respond to listing petitions, propose species for listing, or finalize proposed listings.

    Rep. Mike Simpson (R-Id.), the chief proponent of the moratorium, said it was the only way to force Congress to reauthorize the Endangered Species Act. The ESA has not been officially reauthorized for 20 years, Simpson said. (Go here for video of the markup. Go here for appropriations committee releases from the majority, and here for statements from the minority.)

    That’s not atypical. Congress often does not reauthorize legislation when it “sunsets.” Instead, laws are kept in effect through the annual appropriations process. Simpson noted that more than a quarter of the laws funded in the Interior/Environment bill need to be reauthorized.

    But, said Rep. Norm Dicks (D-Wash.), Simpson was only targeting the ESA. Dicks offered an amendment that would have stripped the language from the bill and restored the proposed funding of $24.6 million for listings and critical habitat designations.

    It failed, 23-26, with votes in favor from 20 Democrats and three Republicans — Reps. Rodney Frelinghuysen (N.J.), Frank Wolf (Va.) and Charles Dent (Pa.). The 26 votes against the amendment were all cast by Republicans.

    Here is some language from the House committee report:

    The Endangered Species Act (ESA) is a prime example of an authorization long since expired that is overdue for additional Congressional review. No less than 2,018 species have been added to the threatened and endangered lists over the lifetime of the Act, of which only 21 have been recovered. Any other program with such a poor success rate would have long since been terminated. Originally enacted in a successful effort to save the nation’s iconic bald eagle from extinction, the Act has become so highly contentious, political, and litigious that it has become a policy failure.

    Wolves are a case in point. Wolf populations in the Northern Rocky Mountains (NRM) and the Western Great Lakes (WGL) are recovered and should be delisted, in part because States have sound management plans in place, according to the scientific agency tasked by Congress with making those determinations. Nevertheless, third parties that should have been partnering with the U.S. Fish and Wildlife Service and the States to conserve wolves instead sued the Service over its decision to delist wolves in the NRM, which put the decision into the hands of the courts until an Act of Congress (P.L. 112–10) settled the matter permanently. Now that the Service has proposed to delist wolves in the WGL region, the matter would likely be headed to court but for a provision in this Bill exempting any future WGL wolf delisting determination from judicial review. Similar language has been included with regard to the State of Wyoming so that, should the Service propose to delist wolves after approving a State management plan, the provision included in P.L. 112–10 would be extended to the entire NRM population. If in the future the Service determines that wolves elsewhere in the nation should be delisted, such as in the desert southwest, this Committee will consider similar bill language until such time as Congress has conducted a thorough review and reauthorization of the ESA.

    Given an over-reliance by some agencies under the Committee’s jurisdiction to extend authorizations on an annual basis, the Committee reserves the option to limit future funding for unauthorized programs or to discontinue funding altogether. In this fiscal year 2012 appropriation bill, the Committee has exercised that option by decreasing funding for Endangered Species Act implementation; reducing funding for the State and tribal wildlife grants program; and terminating the neotropical migratory bird conservation fund program, the EPA Alaska Native Villages grant program, EPA’s U.S.-Mexico border grant program, and EPA’s environmental education program. The Committee urges all entities with an interest in these and other unauthorized agencies and/or programs to take any and all necessary steps to work with the appropriate authorizing committees in a timely fashion to secure essential congressional authorization.

    More links

    Defenders of Wildlife release

    Rep. Mike Simpson (R-Id.) release on subcommittee passage of bill (7/7/11)

     

    CBD, FWS reach separate agreement on listing deadlines

    Posted by Steve Davies at 10:22 pm Court calls, Daily Links, Listings
    Jul 122011

    (Updated July 13)

    In a settlement hailed as “historic” by the parties involved, the Fish and Wildlife Service has agreed to make petition findings and final listing decisions on more than 700 species over the next seven years.

    FWS and the Center for Biological Diversity filed their agreement July 12 in federal court in Washington, D.C., where they were joined at a status conference by WildEarth Guardians, which had already reached its own settlement with FWS.

    CBD had opposed that agreement, seeking to attach specific deadlines to findings for specific species. In addition, the Center wanted to add a few more species to the list.

    In the end, that’s what they got. CBD Executive Director promptly issued a statement: “I’ve been waiting years to write these words: The Center for Biological Diversity and the U.S. Fish and Wildlife Service just inked an agreement requiring the agency to make initial or final decisions on whether to add hundreds of imperiled plants and animals to the federal endangered species list by 2018.”

    WildEarth Guardians welcomed the separate agreement, which added requirements for FWS to issue 12-month findings on three species not covered by WildEarth Guardians’ earlier agreement: the Mt. Charleston blue butterfly (end of FY 2012), North American wolverine (FY 2013), and Pacific walrus (FY 2017). CBD’s agreement also pushed up the deadline for a decision on the Mono Basin sage-grouse DPS from the end of FY 2015 to the end of FY 2013.

    The CBD/FWS pact also includes specific deadlines for FWS to publish either proposed listing rules or not-warranted findings on an additional three dozen species. The FWS/WildEarth Guardians agreement focused on decisions for 251 candidate species but also addressed FWS’s obligation to issue petition findings for another 500-plus species.

    As WEG summarized it in a press release issued today, “The Center’s agreement provides specific timeframes on listing proposals and final listing rules for about 40 species, most of which were included in the May agreement. [T]oday’s agreement provides further certainty for these species at risk by including additional deadlines. Both deals also provide for petition findings for hundreds of species.”

    In contrast to most court hearings held in ESA listing cases, the mood among the lawyers this afternoon was upbeat and cordial. Sullivan complimented the parties and commended the work of the mediator. He was careful not to approve the agreement today, however, because first he must deal with a motion to intervene filed by Safari Club International.

    SCI, a hunting and conservation group, is seeking to block the settlement. SCI wants its members to be allowed to continue to hunt four of the species covered: greater sage grouse, New England cottontail, plains bison, and lesser prairie-chicken. [The bison matter is moot, as FWS earlier this year issued a negative 90-day finding on a listing petition. CBD has  threatened to sue the service over its decision.]

    While the settlements require FWS to make listing decisions, they do not dictate the outcome of those decisions. That means the conservation groups — and SCI — may still challenge the merits of any FWS decision.

    There are also provisions designed to reduce the volume of listing litigation. For example, if CBD files more than 10 suits a year or succeeds in obtaining more than a certain number of remedies in a given time period, then FWS would get five more years to publish petition findings on 478 species (including 403 Southeastern aquatic species, 32 species of Pacific Northwest mollusks, and 42 species of Great Basin springsnails) and also receive more time (the extensions vary) to complete 12-month findings on about 50 species [Editor's note: I believe it's actually 47 species, but I could have miscounted.].

    The chances of the deadlines being pushed back so significantly are slim, however. Suckling said the center carefully examined its five-year listing plan before signing off on the agreement, to ensure there would be little effect on its actions. The agreement also “front-loads” many of the required decisions so that even if the litigation limit were exceeded, decisions would not be delayed more than a year or two.

    Said Suckling: “It is technically true that if we instantly file a bunch of litigation, the 478 90-day findings could get pushed to 2016, but that can’t actually happen because (1) all those finding have to be completed by September 2011, and (2) we don’t have any ripe 60-day notices that would enable us to file any deadline litigation by then.”

    Sullivan’s observation that the litigation incentives cannot have been easy to negotiate drew chuckles from the attorneys and other attendees in the courtroom.

    WildEarth Guardians’ agreement also has disincentives for going to court. To wit:

    Prior to March 31, 2017, Guardians shall not file any lawsuit to enforce the statutory
    deadlines in 16 U.S.C. § 1533(a) and (b) or to challenge any warranted-but-precluded finding
    in accordance with 16 U.S.C. § 1533(b)(3)(B)(iii) for any species within the jurisdiction of
    the Department of the Interior. Prior to March 31, 2017, the plaintiff shall not actively solicit
    other parties to file any such litigation, or materially support, either by funding or providing
    legal assistance in, such litigation filed by another party. The prohibition of solicitation and
    material support for litigation by others does not preclude Guardians from providing
    biological information concerning the imperilment of species to other organizations or
    individuals, if requested.

    Naturally, there are exceptions to “any species,” which are detailed on page 9 of the WEG/FWS agreement.

    Earlier in the litigation, Sullivan declined to grant intervenor status to Tejon Ranch in California, a decision that may indicate how he will rule on SCI’s request. FWS, CBD and WEG all oppose the SCI motion, and will likely argue that the group waited too long to enter the fray. In addition, they are sure to note that SCI has the right to go to court and challenge any of the petition findings or listing decisions made by FWS.

    Links

    FWS/CBD settlement

    CBD’s settlement page

    WildEarth Guardians news release and settlement page

    FWS page on the agreements, along with its long-term listing plan

    Safari Club International motion to intervene and affidavits

    SCI motion for relief from the obligation to file responsive pleadings in each of the consolidated underlying cases

     

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