July 18, 2017

Notice of anticipated gnatcatcher lawsuit submitted

By Damien M. Schiff Senior Attorney

This week, PLF submitted a notice of intent to sue the U.S. Fish and Wildlife Service over

California gnatcatcher (USFWS)

the agency’s denial last year of our petition to delist the coastal California gnatcatcher from the Endangered Species Act. The petition sought the gnatcatcher’s delisting on the basis of a 2013 nuclear DNA study, which undermines the gnatcatcher’s “subspecies” classification and concludes that the bird is not meaningfully distinct from the millions of gnatcatchers dwelling in Baja California. The notice letter, submitted on behalf of a coalition of home builder, sound science, and property rights advocates, challenges the legality of the Service’s delisting denial on two grounds.

First, the denial violates the basic administrative law requirement of reasoned decision-making. In rejecting our petition, the Service acknowledged that there is no commonly accepted definition of what constitutes a “subspecies,” yet the Service offered no definition of its own. Effectively, the agency purported to reserve to itself the power to define “subspecies” however it wants (“we’ll know it when we see it, and we’ll tell you”), whenever it wants, to suit its preferences. That kind of arbitrary power no agency has.

Second, the denial violates the Federal Advisory Committee Act. This law requires agencies that wish to rely on outside expert opinion to provide notice to the public of the convening of such a panel, and to allow the public to participate in the panel’s work. Here, the Service’s delisting denial relied heavily on the recommendations of a privately assembled peer review panel, despite the agency’s failure to provide formal notice of the panel’s creation, as well as its failure to provide the public any opportunity to attend the panel’s deliberations and to offer contrary evidence.

If the Service does not respond favorably to our notice, we’re prepared to litigate these important issues and to bring some measure of fairness and rigor into Endangered Species Act decision-making.

learn more about

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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