June 16, 2011

Graham's penstemon (what?) may yet be endangered

By Graham's penstemon (what?) may yet be endangered

Author:  Damien M. Schiff

Last week, Judge Walker Miller of the District of Colorado ruled, in Center for Native Ecosystems v. United States Fish & Wildlife Service, that the Service erred in denying a petition to list Graham's penstemon (a wildflower of the Rockies) under the Endangered Species Act.  The Service's chief analytical error, reasoned Judge Miller, was that it failed to assess whether any combination of threats was significant enough to merit the plant's listing.  Under the ESA, the Service is required to consider five factors (e.g., habitat loss and disease) when deciding whether to list a species.  The Service did analyze each of the five statutory factors here as applied to the wildflower, and determined that none of the factors was significant enough on its own to support the plant's listing.  But the Service apparently did not consider whether combining those factor-threats might change the outcome.

This is the first case I've seen where the Service has been faulted for this error.  The Service apparently defended its analysis on the grounds that the "combination of factors" analysis was implicit, but the court thought otherwise.  I can imagine, however, instances where one could argue that the failure to make a combination factor analysis would be harmless; for example, where each of the threats is so small that, even combining them would still not lead to a listing result.

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