May 31, 2011

ESA Settlement Stalled

A work plan developed by the Department of Interior’s (DOI) Fish and Wildlife Service (FWS) WildEarth Guardians for making determinations for the 251 species now candidates for listing under the Endangered Species Act (ESA) was put on hold by a federal judge in response to opposition by the Center for Biological Diversity.

WildEarth Guardians had challenged FWS in the district court in 12 cases in which the organization alleges that FWS has failed to list species in a timely manner. The settlement required FWS to make final listing determinations by September 2016. In return, WildEarth Guardians agreed to dismiss its lawsuits and refrain from suing FWS over other missed deadlines for the next 6 years. FWS describes WildEarth Guardians as “one of the agency’s most frequent plaintiffs.” The settlement required approval by the U.S. District Court for the D.C. District.

According to FWS, there are no statutory deadlines for initiating new listings, and proposed listing determinations must fall behind compliance with court orders, settlement agreements, and statutory deadlines when competing for available staff time and funding.

“If agreed to by the Court, this plan will enable [FWS] to again prioritize its workload based on the needs of candidate species, while also providing state wildlife agencies, stakeholders, and other partners clarity and certainty about when listing determinations will be made,” said FWS.

The settlement includes a 2-year work plan to guide FWS response times for making findings on other citizen petitions requesting that species be added to the ESA list; critical habitat proposals and designations; and compliance with existing court orders.

But the Center for Biological Diversity objected that the agreement was too weak, too vague, and ultimately unenforceable. According to the Center, 87 percent of ESA petitions affected by the agreement were petitioned or litigated by the Center and thus needed to be resolved with the Center’s approval.

The Center added that it was particularly concerned about terms in the agreement that would allow FWS to unilaterally withdraw its commitment to list species, exclude a number of critically imperiled species, including the Pacific walrus and American wolverine, and limit protection of other imperiled species in the future.

U.S. District Judge Emmet Sullivan ordered the parties, including the Center, to return to mediation.

The proposed work plan and additional information is at http://www.fws.gov/endangered/improving_ESA/listing_workplan.html.