March 10, 2011

Gnatcatchers everywhere anxiously await

By Gnatcatchers everywhere anxiously await

Author:  Damien M. Schiff

Last week, Pacific Legal Foundation sent formal notice to the United States Fish & Wildlife Service of its intent to sue over the agency's failure to respond in a timely fashion to PLF's petition to delist the California gnatcatcher from the Endangered Species Act.  PLF submitted its petition in April of last year on behalf of the Coalition of Labor, Agriculture, and Business; the Property Owners Association of Riverside County; and Dr. Lou Marsh, a coastal property owner.  The nub of PLF's petition is that the gnatcatcher—which is listed as a subspecies—does not qualify as a separate taxonomic unit but is in fact indistinguishable from its plentiful cousins south of the border (down Mexico way, sorry couldn't resist).  Bolstering PLF's petition is the fact that one of the authors of the study that the Service relied on originally to deem the California gnatcatcher a subspecies has since changed his position.

Under the ESA, the Service is required to make an initial finding on delisting petitions within 90 days.  Here, not surprisingly, the Service is late by many months on the required finding.  Consequently, PLF is now preparing to sue the Service to force action.  This issue is much more than just squabbling over arcane taxonomic distinctions.  The ESA protections for the gnatcatcher are estimated to cost, by the Service's own reckoning, hundreds of millions of dollars in delayed and stopped development projects in Southern California over the next 20 years.  So, Service, hurry up and act!

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Center for Environmental Science, Accuracy & Reliability, et al. v. U.S. Department of Interior, et al.

The federal government has expanded its reach using the Endangered Species Act to cover spurious “subspecies.” The ESA does not define “subspecies” and the Fish and Wildlife Service has offered no definition of its own. Instead, it simply announces when it has determined a “subspecies” to exist and, relying on the subspecies’ smaller numbers relative to the entire species, imposes onerous regulations. The California gnatcatcher was listed as a threatened subspecies, but a 2013 study shows that, at a DNA level, the songbird is not meaningfully distinct from millions of gnatcatchers dwelling in Baja California. PLF represents a coalition of property owners, developers, and scientists in a challenge to the continued listing of this thriving species.

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