U.S. Fish and Wildlife ruling adds modicum of common sense to Endangered Species process
October 7, 2016
A recent final ruling from the U.S. Fish and Wildlife Service civilizes the petition process for listing Endangered Species. It's far from a home run – but it's a move the ag community still accepts.
Effective Oct. 27, 2016, changes include limiting petitions for new listings to one species, notifying state agencies of intent to file, and requiring more substantive justification on proposed need.
Ethan Lane, executive director of the Public Lands Council says, "It's not a silver bullet, but we look at the items changed in this final rule as a good first step in addressing issues of abuse of the Endangered Species Act."
Since the ESA was passed in 1973 the system has run out of control with rampant abuse from environmental groups. Prior to this new ruling, it was permissible to file a single petition on behalf of unlimited species, with a formal response required from the U.S. Fish and Wildlife Service within 90 days. If the FWS was unable to meet these requirements, the petitioner could sue for all litigation fees, including the cost to file the original petition. It was often likely the agency would approve the listing simply because they weren't able to prove it was not warranted.
“In our view, the states have the best information available on the species they manage. If you want to take something out of state management and put it into federal management, it seems like a fair request to ask information about that species.” Karen Budd-Falen, owner and attorney at Budd-Falen Law Offices
Karen Budd-Falen is an owner and attorney at Budd-Falen Law Offices in Cheyenne, Wyo., where she specializes in private property and land use issues. She says this ruling, "at least makes the listing requirements a little more difficult – so the agency isn't forced to list just to avoid penalties."
Budd-Falen mentioned the example of the Center for Biological Diversity petitioning for 440 different species in one letter, with no proof of data for the listings required.
"When [the Endangered Species Act] was passed, Congress likely did not envision getting listing requirements for 440 species at a time," she says. "Even if [FWS] had all the manpower and money in the world, they couldn't do a review on 440 species in 90 days. So the petitioning groups sue and get all their attorney fees paid, including all the attorney fees for their listing in the first place."
The new rule requires the petitioner to notify state agencies responsible for management of the proposed species of their intent to file at least 30 days prior. This is to allow state agencies the opportunity to submit to FWS any data they have on the proposed listing, drawing on the states' "considerable experience and information on the species," according to the rule.
Budd-Falen says this is only reasonable. "In our view, the states have the best information available on the species they manage," she says. "If you want to take something out of state management and put it into federal management, it seems like a fair request to ask information about that species."
Additionally, the rule also states the petitioner is to "provide a complete, balanced presentation of facts pertaining to the petitioned species, which would include any information the petitioner is aware of that contradicts claims in the petition."
"Despite the slanted view of these groups, they now have to get well-rounded data and present a complete case, or the FWS can send them back to the drawing board," says Lane. "They can't just throw things at the wall and see what sticks."
Lane agrees the reality of the situation is the FWS is working to regain control of their own process that has been hijacked by the radical environmental community.
"The front-end has been totally overwhelmed with paperwork and long been open for abuse by radical environmental groups," says Lane. "They have mastered the process of overloading the system and petitioning for hundreds of species at a time – and making a profit from it.
"They get all the reward, but none of the responsibility," says Lane. "If the intent of your organization is to stop grazing on public lands, all you have to do is find a species present and petition to have it listed."
An additional broken spoke in the system is the recovery and delisting process. It's easy to add, almost impossible to remove a species.
Currently there are 2,277 species on the U.S. and foreign endangered or threatened species list. Only 1,157 of those have active recovery plans. In the 43-year history of the ESA, only 69 species have ever been delisted – calculating at a 0.03 percent success rate.
"Even when ranchers want to help conserve an endangered species, they don't have a roadmap or a formal plan to follow – all we have are the restrictions because the process is so bogged down."
Budd-Falen notes that the final ruling is good, but says she would be hesitant to claim the FWS made this move to help private land owners. "It's a way to lighten their workload and stop the bleeding of serial litigation groups."
And, although the new ruling is a positive move, it does little to counteract a slew of recent adverse actions taken by the FWS under the current administration. In a memorandum from her law office last March, Budd-Falen outlined a list of concerns embodied in four separate final rules and two final policies from FWS that they admit will result in listing more species and expanding designated critical habitat. These concerns include: accepting controversial "conservation biology" as sound science; expanding critical habitat designations; no longer notifying landowners if their property is included in critical habitat, nor publishing legal descriptions of considered areas; limiting economic impacts considered; and making economic impact consideration discretionary.
The new rule is one step forward – among many steps back.
Because when even a federal agency rules that its system is broken, perhaps the only thing endangered is common sense.