January 14, 2013

PLF responds to article attacking our involvement in wood stork downlisting

By Christina M. Martin Attorney

Friday, the Palm Beach Post ran an op-ed by Alan DeSerio, managing attorney for PLF’s Atlantic Center in Florida. DeSerio responds to an op-ed run by the paper, which portrayed an imaginary version of PLF’s involvement in the FWS’s proposed downlisting of the wood stork from “endangered” to “threatened.” In the article, What saved the wood storks? Hint: Not the Pacific Legal Foundation,” the author, Sally Swartz, discusses reasons for the wood stork’s population growth. It also throws some jabs at PLF. The article states:

The Pacific Legal Foundation’s Atlantic Center in Stuart takes credit in a press release for pushing to change the wood stork’s status, but FWS spokesman Chuck Underwood said the federal agency has followed its usual process.

. . . .

Despite the crowing of the Pacific Legal Foundation, a group that litigates for limited government and property rights, the wood stork’s change in status doesn’t mean much for developers.

Developers think it will be easier to get permits,” Mr. Woodruff said. “Not really…The truth is it doesn’t give them carte blanche to do whatever they want.”

Considering that the author, Ms. Swartz, claims to have read our press release, it’s surprising that she would imply that PLF has crowed that this status change would make it easier to get permits. In that press release we stated that “a downlisting to ‘threatened’ will not trigger immediate change in any regulations’” but that it “would be the first step toward ending [Endangered Species Act] protection for the species.” The title of Swartz’s article (likely picked by an editor and not the author) is also strange – implying that either PLF hates the wood stork or claimed to have saved the bird. Neither interpretation accurately portrays PLF or the substance of the article.

As for whether PLF should take credit for the bird’s legal status change, a brief look at the history of our litigation about the wood stork speaks for itself. The ESA requires that the U.S. Fish and Wildlife Service conduct a review of listed species every five years, yet the FWS regularly fails its statutory duty. Several years ago, the Florida Home Builders Association, represented by PLF, petitioned the Service to conduct a status review of the woodstork, which was 16 years overdue. The FWS failed to respond so we filed a lawsuit to compel the review, which we won in 2007. As DeSerio described in today’s op-ed:

Pacific Legal Foundation went to federal court, representing the Florida Home Builders Association, and won a ruling that ordered the agency to conduct overdue reviews of nearly 100 species in the Sunshine State, including the wood stork.

Forced to do its job, the agency produced a five-year review and, based on the best available scientific information, recommended reclassification of the wood stork to “threatened” status.

Then, inaction set back in. The agency failed to implement its findings. The “endangered” listing persisted.

Pacific Legal Foundation had to step forward again. Four years ago, PLF, again representing FHBA, submitted a formal petition to force FWS to do what was required under its own studies, and change the wood stork’s listing.

When nothing happened, PLF filed a “Notice of Intent to sue” in July, 2010. This time the agency responded, with a finding that “downlisting” might be warranted, and a pledge to make a final decision within 12 months.

Twelve months came and went, and PLF was forced to issue a formal warning of litigation – prompting another FWS promise to make a decision by May, 2012. When nothing happened by November, PLF sent another letter, again threatening a lawsuit on behalf of the FHBA.

Finally, after years of delay by FWS, and continuous prodding by PLF, last month the agency at last began the process to reclassify the wood stork. Its announcement specifically says the agency is acting in response to PLF’s petition.

Ms. Swartz’s article is probably right to call this the “usual process” of the FWS. PLF has had to compel the FWS to fulfill its statutory duty and act in accordance with its own science on numerous occassions. PLF files many petitions, in which we are very up front with the press about the effect a downlisting will have on regulations. Just last month, PLF petitioned the FWS to downlist the manatee. Our press release and my blog post on the subject made it likewise very clear that the manatee’s protections would likely not alter under a downlisting. The goal of downlisting an animal is not only to require the government to follow its own rules, but it is to put everyone on notice that the species is recovering and soon may not warrant the invasive federal protections the ESA extends to threatened and endangered species.

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