February 23, 2012

Fish and Wildlife Service still ignoring Endangered Species Act

By M. Reed Hopper Senior Attorney

In 2005, Pacific Legal Foundation filed suit on behalf of the California State Grange, the California Forestry Association, and the California Cattlemen’s Association to compel the U.S. Fish and Wildlife Service to conduct mandatory 5-year status reviews for more than 100 threatened or endangered species in the State of California. It was the largest lawsuit of its kind in the history of the Endangered Species Act and resulted in a settlement whereby the agency agreed to conduct the reviews in accordance with a court-approved schedule. After the completion of status reviews for some species in 2007-8, the Service concluded that 6 species, among others, should be reclassified. However, as is its practice, the Service took no action on its own recommendations.

In May, 2010, PLF petitioned the Service to reclassify the 6 species. When the Service failed to respond, PLF threatened to sue.  As a result, the Service issued a finding on Jan 19, 2011, that the petition may be warranted. This triggered a new review of the species requiring the agency to make a final decision on reclassification within 12 months of the petition. That time has run and the Service has still not acted. Once again, PLF has threatened to sue.

The petition calls for the delisting of 2 protected plants; the Eureka Valley evening primrose and the Eureka Valley dunegrass. These plants are found in dune areas in Eureka Valley, Inyo County, and have recovered so as to no longer require the protections of the Act.

The petition also calls for the reclassification of 4 species from endangered to threatened. These include the Tidewater Goby, a small fish, found in brackish areas along the California Coast from Oregon to San Diego County. In 2008, the Service designated 10,000 acres of Critical Habitat for the goby in Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Ventura and Los Angeles Counties. More recently, the Service has proposed expanding Critical Habitat to more than 12,000 acres.

The San Clemente Island bush-mallow, the San Clemente Island broom, and the San Clemente Island Indian paintbrush, all plants, are endemic to San Clemente Island, and, like the goby, they have partially recovered and warrant “downlisting” to threatened status.

It is unfortunate that the Service must be brow beaten into doing its job and updating the status of listed species as the Act requires.

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