February 26, 2014

PLF notches another ESA delisting

By Anthony L. Francois Senior Attorney

Today, the United States Fish and Wildlife Service announced that it will finally propose to remove two plant species from the Endangered Species Act’s protections, 20 years after originally determining that the Eureka Valley dunegrass and Eureka Valley evening primrose were no longer endangered.

Similar to the Service’s recent announcement that it will delist the Modoc Sucker, today’s news is a testament to the inflexibility and inefficiency of the Endangered Species Act as implemented by the Fish and Wildlife Service.  The federal government knew in 1994 that it should delist these two species, but simply decided not to.  So it took two lawsuits from PLF to finally get the Service to implement its own conclusions.

As long as this is the way the Endangered Species Act is implemented, it will not be good for either people or wildlife.

The Eureka Valley sand dunes are a remote desert feature in California’s Death Valley National Park, and are the only known habitat for the Eureka Valley dunegrass and Eureka Valley evening primrose.  In 1976, the Bureau of Land Management closed the dunes to off-highway vehicle recreation, in order to protect these rare plant species.  According to the Fish and Wildlife Service, this closure essentially accomplished the necessary protection of the plants, but the Service listed them as endangered anyway in 1978.

By 1994, the Service concluded that the OHV closure provided adequate long term protection to the plaints, and drafted a delisting proposal.  But because the Eureka Dunes were placed under the jurisdiction of the National Park Service that year, the Service decided to wait and see if the protections would remain in place.  (Apparently, the Fish and Wildlife Service is not familiar with the Park Service’s expertise and commitment when it comes to excluding Americans from our National Parks and Monuments.)

And there the delisting sat, with no further action by the Service, despite their conclusion in 1994 that the plants were no longer endangered by OHV activity.  Nothing happened until 2005, when PLF sued the Service for failing to complete a mandated five year review of the status of the plants.  The Service agreed to complete the status reviews, which it completed in 2007.  Not surprisingly, the Service again concluded that the plants were not endangered and should be delisted.  But the Service took no action on its own recommendation, so PLF petitioned the Service in 2010 to act on the five year review and delist the plants.

Eight months after PLF filed its petition, the Service determined that the delisting “may be warranted,” a determination that the ESA required be made within 90 days of filing the petition.  It is hard to understand how the Service could even take 90 days to conclude that PLF’s delisting petition may be warranted, since all the petition did was ask the Service to follow its own recommendation to delist.

Once the 90 day finding was made, the Service was required to make a final determination on the petition with 12 months of filing the petition, which would have been May 14, 2011.  But that date came and went, and so in March of 2013 PLF finally had to file suit just to compel the Service to make a final determination on the delisting petition.  The Service has now finally proposed the delisting, in response to PLF’s lawsuit, almost three years after it was due in response to our petition, and 20 years after the Service originally concluded that the plants were not endangered.

A lot happens in twenty years.  Since the Service originally concluded that the plants should be delisted, America has elected two new presidents and re-elected three, experienced the dot-com boom and crash of the nineties, and the housing boom and bust of the 2000s.  California even built a real bridge to replace the earthquake damaged Eastern span of the Bay Bridge. But it took two lawsuits and 9 years to get the Fish and Wildlife Service to do little more than copy and paste its delisting proposal from 1994 into the one it published today.

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