October 23, 2013

Lax listing practices reveal government's disregard for science

By Brian T. Hodges Senior Attorney

Today we continue with our Endangered Species Act theme by focusing on the government’s listing practices.  By now, Liberty Blog readers know that the ESA requires the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to list plants and animals as endangered or threatened, based on evidence of threats to the species borne out in the best available science.  Regrettably, however, the ESA’s emphasis on science has been eclipsed by the Services’ bureaucratic failures.  Here’s how:

The ESA requires the Services to review the status of each listed species at least once every five years.  A few years ago, PLF attorneys surveyed the Fish and Wildlife Service’s listings, and found that the agency had not complied with the status review requirement for hundreds of listed species.  This was an important discovery, because it showed that the Service had taken a “list it and forget it” approach to endangered species management.  A plant or animal would be listed—and restrictions on private property would take effect—but then the Service would not review the species to see if the listing remained valid in light of new scientific data accumulated over years and sometimes decades.  This revelation troubled us enough that we filed a lawsuit to compel the Service to issue overdue status reviews for 194 species.

The lawsuit settled when the Service agreed to issue new status reviews for all 194 species.  The Service completed the final reviews just a few weeks ago, so the results are in.  Of the reviewed species, the Service determined that 24—more than 1 in 10—are not properly classified as endangered or threatened.  The Service recommended 22 of those species to be delisted or at least downlisted from endangered to threatened status.  You could say that the lawsuit did its job—it highlighted that many listed species are not in peril as the public has been led to believe, and that property restrictions which flow from those listings are, therefore, unwarranted.

The Service’s next move ought to be clear: It should initiate the reclassification process for each species for which it recommended reclassification.  But the Service is not doing that.  In fact, 21 of the 22 species that the Service recommended for delisting or downlisting remain in their current incorrect status, and the Service is not in a hurry to clean up its endangered species roll.

This is where PLF comes back into the picture.  After the Service recommended many of the species for reclassification, we filed petitions asking the Service to initiate the reclassification process.  The Service’s usual response is to ignore our petitions, which then forces us to sue the agency to make it answer.  As a result of these follow-up lawsuits, 14 of the species that were originally recommended for reclassification have been or currently are the subject of additional PLF litigation designed to make sure the reclassification process goes forward.  And keep in mind, this latest litigation effort merely seeks to require the Service to implement its own scientific recommendations and re-categorize the species that do not meet the criteria for being treated as endangered or threatened.

Our experience shows that, after 40 years, the ESA is not functioning properly because the agencies that administer it repeatedly fail to ensure that species listings are consistent with current scientific data.

To learn more about PLF’s views on the ESA at 40, check out this new podcast featuring PLF attorneys.  And don’t forget to take our daily Facebook ESA poll!

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