January 10, 2011

PLF promises lawsuit over feds' unnecessary beetle restrictions

By PLF promises lawsuit over feds' unnecessary beetle restrictions

Author: Brandon Middleton

On September 9, 2010, Pacific Legal Foundation made a simple request to the United States Fish and Wildlife Service: take the valley elderberry longhorn beetle off of the list of protected species under the Endangered Species Act. VELB

By no means would this be a complex task for the Service–in fact, PLF's September 2010 beetle petition was based on the Service's own 2006 study recommending delisting for the beetle, as the species has recovered since it was originally listed in 1980.  All that was asked of the Service was for the agency to effectuate its prior recommendation and formally recognize that the valley elderberry longhorn beetle should no longer be classified as a threatened species under the Endangered Species Act.

Add to that the substantial amount of time and money landowners and flood control districts (including PLF's beetle clients) are forced to waste on the valley elderberry longhorn beetle, and you'd think the Service would be interested in quickly responding to our request and beginning the delisting process.

[Eds. note: The common sense ends after the jump.]

Apparently not.  Four months after receiving PLF's petition, the Service has yet to indicate whether a formal delisting of the valley elderberry longhorn beetle is worth considering.  Instead, the agency has punted, suggesting that it will begin looking into this issue sometime in Fiscal Year 2011.

That's not good enough for PLF–does it bother anyone else that the Service is forcing flood control districts to waste money ($387,000 for Levee District 1 alone) on a beetle that doesn't need federal protection, and that these districts as a result have less money to devote to flood control and public safety?

That's also not good enough under the law.  Although the Service is required to make every effort to respond to ESA petitions in 90 days or less, the Service has in effect given itself at least a year to respond to the beetle petition.

Sound flood control and the upholding of private property rights can't wait that long, however.  Because the Service is in violation of its 90-day response deadline, PLF has notified the Service that we will sue the agency on behalf of flood control districts and landowners if it does not respond to our beetle delisting petition in the next 60 days.  Our 60-day notice letter (as required by the ESA) is available here and was sent to the Service late last week.

We're hoping the Service will recognize the wrongfulness of its delay and the unnecessary costs it is imposing on Californians.  But if it doesn't, you can be sure that PLF will haul the Service into federal court in order to finally have the recovered valley elderberry longhorn beetle actually taken off the ESA list.

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