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.


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


Mar 282011

The Fish and Wildlife Service should have asked for public comment before changing two of the four criteria in its recovery plan for the West Virginia Northern flying squirrel, U.S. District Judge Emmet Sullivan said in a ruling issued Friday, in which he vacated the service's delisting of the squirrel (Friends of Blackwater v. Salazar, 09-2122 EGS, D.D.C.).

The squirrel's back on the list per a federal judge's decision

Photo by Larry Master/FWS

Sullivan concluded:

... that the agency violated Section 4(f) of the ESA, 16 U.S.C.§ 1533(f), when it effectively revised its recovery plan for the squirrel without employing notice-and-comment rulemaking. Accordingly, the Court hereby VACATES the Delisting Rule and REMANDS to the agency for further proceedings consistent with this Opinion.


Recovery plans fulfill one of the purposes of the ESA that the [FWS] “do far more than merely avoid the elimination of protected species. It must bring these species back from the brink so that they may be removed from the protected class, and it must use all methods necessary to do so.” Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 170 (D.D.C. 1977).

In the event the agency finds it necessary to revise a recovery plan, Congress expressly provides a vehicle for doing so: the statute states that “[t]he Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan.” 16 U.S.C. § 1533(f)(4) (emphasis added).

In light of the above statutory language and accompanying legislative history, the Court concludes that the agency’s decision to set aside two of the criteria in its Recovery Plan constituted a revision to the Recovery Plan within the meaning of the ESA. Accordingly, the agency was required to employ notice-and-comment rulemaking.

Defendants also point to the ESA’s directive that the agency “shall, to the maximum extent practicable . . . incorporate in each plan . . . objective, measurable criteria which, when met, would result in a determination . . . that the species be removed from the list[.]” 16 U.S.C. § 1533(f)(1). Defendants focus on the use of the word “would” in support of their argument that “the text expressly recognizes a hypothetical and contingent possibility.” Defs.’ Mem. at 33. However, the language cited by defendants does not give the agency discretion to revise its recovery plan without consideration of the procedural requirements set forth in§ 1533(f)(4); rather, it imposes on the agency an additional requirement that the recovery plan criteria reflect certain goals, i.e., that the criteria enable the eventual delisting of the species. As this District has already held, “the word ‘would’ . . .  is used in the conclusion of a conditional sentence to express a contingency or possibility. Therefore,‘would result in a determination . . . that the species be removed from the list’ sets a target to be aimed at by meeting the recovery goals set forth in the Plan.” Fund for Animals v.Babbitt, 903 F. Supp. 96, 103 (D.D.C. 1995) (internal citations omitted).