April 8, 2014

FWS overdue on delivering wood stork from endangered list

By Christina M. Martin Attorney

Last week, we sent the Fish and Wildlife Service another notice of intent to file suit.  This time, the matter involves the protected status of the wood stork, a bird that is increasingly common in South Florida. In 2007, PLF won a lawsuit representing the Florida Home Builders Association, which required the FWS to do long overdue, legally mandated status reviews for 89 Florida species, including the wood stork.  The FWS completed its status review for the woodstork that year, which stated that because the species is recovering, it should be downlisted from endangered to threatened.
StepsToDownlisting
After the FWS failed to act on its own recommendation, PLF filed a petition on behalf of the Florida Home Builders Association, asking the FWS to act on its own advice.  The FWS failed to acknowledge the petition with a legally-required finding, so we threatened a lawsuit. The service in turn acknowledged in its finding that our downlisting may be warranted, which triggered a requirement that within 12-months, it gather information, and decide whether data supports the petition.  When the FWS failed to issue the required finding after 12 months, we again filed a notice that we would sue.  Finally, the FWS issued its finding and published a proposed rule to reclassify the wood stork as threatened.  Under law, the FWS must act on that proposal or announce why it will not.  Fifteen months later, it has still failed to act or explain itself. Accordingly, last week, on behalf of the Builders, we sent the FWS yet another threat of a lawsuit.

It is odd that FWS so regularly disregards federal law when it comes to downlisting recovering species.  Threatened species, after all, enjoy many or most of the same federal protections as endangered species.  But for PLF and our clients, the downlisting matters because it puts everyone on notice that the species is recovering and soon may not warrant the invasive federal protections of the Endangered Species Act. Moreover, it is important that we continue to require the government to abide by the law. After all, if the government can’t be trusted with a little thing like reclassifying a recovering species, then how can it be trusted with bigger responsibilities?

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