March 1, 2016

A win for voluntary conservation

By Jonathan Wood Attorney

This morning, the D.C. Circuit rejected a challenge to the Fish and Wildlife Service’s decision to withdraw its proposed listing of the dunes sagebrush lizard. The withdrawal was based on an intensive effort by states and private parties to conserve the species without the crushing burdens associated with a listing. This is an important win, as it gives states and private parties certainty that future conservation efforts will be well-received by the courts.

For instance, the Court squarely rejected Defenders of Wildlife’s argument that these efforts shouldn’t be credited because, once the proposed listing was withdrawn, the incentives to participate would dry up:

[I]n developing the Policy, the Service considered how to address the effect listing decisions have on the incentives to enroll in voluntary conservation efforts. Because it is not a foregone conclusion that an agreement satisfying the Policy will preclude a need to list, the Service suggested that it was unnecessary to consider the impact the later listing decision might have on the implementation of a voluntary agreement. … In view of the possibility of listing a species if voluntary conservation efforts are not successfully implemented, the Service rejected the idea posed in a comment that “parties lack incentives to develop conservation programs until after the species is listed.”

This is the right result. And, ultimately, species will benefit from the court and the agency’s recognition of state private conservation efforts’ value. Increasingly, the Service has been working with state and private parties to avoid listing through proactive conservation. This is an admirable step towards more reasonable, cost-effective environmental protection. As we explained in our amicus brief:

The credibility of state conservation plans is of national importance. For
example, the Service is currently* considering listing the greater sage-grouse, which would affect eleven states and approximately 165 million acres. This would have severe consequences for agriculture, ranching, and energy development across the region.To avoid this, the states, conservation groups, landowners, and industry formed the Sage Grouse Initiative to facilitate private conservation efforts that could alleviate the need for listing. This collaborative effort has resulted in the restoration of over 4.4 million acres of habitat and $400 million invested in the grouse’s conservation. … A decision from this Court that made it exceedingly difficult for the Service to rely on such efforts would undermine these efforts to the detriment of both people and species.

The Court closes by recognizing that such efforts are not evaluated against a Sisyphean standard. Like any regulatory regime (including the ESA), they may fall short. But if state and private conservation efforts are reasonable and designed to benefit both people and species, they can legally be relied upon.

The Texas plan may not be foolproof, but neither is every regulatory regime. The evaluation of the adequacy of the Texas plan involves the Service’s judgment based on its expertise and experience. Appellants have failed to demonstrate that the Service was arbitrary and capricious in exercising that judgment to rely on the Texas plan. Accordingly, we affirm the grant of summary judgment.

*PLF’s amicus brief was filed in May 2015. The Service later decided not to list the grouse, because of this collaborative effort to conserve it.

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