Author: Ralph W. Kasarda
Today the U.S. Fish and Wildlife Service issued a final 12-month determination denying the delisting petition of the American Forest Resource Council ("AFRC") in regard to the marbled murrelet. The rule can be found here. The result of the Service's determination is that the marbled murrelet remains listed as "threatened."
The marbled murrelet is a sea bird that ranges from Southern California all the way north through Canada and Alaska to the Aleutian Islands. In October, 1992, the Service listed only the marbled murrelets in Washington, Oregon, and California ("tri-state murrelet") as a threatened population under the Endangered Species Act. It did so because it regarded that population as a Distinct Population Segment ("DPS"). But in 2004, the Service concluded on the basis of its mandatory five-year review that the tri-state murrelet population "does not satisfy the criteria for designation as a Distinct Population Segment (DPS) under the Service’s 1996 DPS Policy." In spite of that finding, the Service refused to delist the tri-state murrelet.
Because the Service’s five-year review concluded that the tri-state murrelet did not qualify as a DPS, Coos County, Oregon, represented by Pacific Legal Foundation, brought a lawsuit challenging the listing. Attorneys for PLF argued that the Service had no statutory authority for continuing to list the tri-state murrelet, because that population was not a DPS. (The ESA only permits the Service to list a species, a subspecies, or a DPS of a species). Unfortunately, both the trial court and Ninth Circuit disagreed. The Ninth Circuit decision can be found here.
Essentially, the Ninth Circuit held that even if a five-year review reveals that listing was improper and outside the scope of the ESA, the Service is under no duty to initiate its own delisting procedures. Such procedures must originate from a petition to delist. Prior to that decision, the AFRC filed a delisting petition on May 28, 2008. The Service claimed that its 2004 five-year review had been "flawed," and issued a revised five year review on June 12, 2009. In that review, the Service reversed its 2004 findings, and determined that the tri-state murrelet was a valid DPS. In today's determination, the Service finds that the tri-state murrelet continues to warrant threatened status.
(As an aside, it is ironic that the continued listing of the murrelet may interfere with plans backed by environmentalists to build a wind farm in Western Washington. That story can be found here.