The Endangered Species Act allows interested persons to petition the Fish & Wildlife Service to delist or downlist species based upon relevant evidence. It also requires the Service to respond to such petitions in a timely manner. The Service is first obligated to issue an initial finding on each petition within 90 days of receipt, determining whether or not the petition “may be warranted.” If the 90-day finding is positive, the Service must make a final decision on whether to grant the petition within a year.
But the Service often shirks its duty to respond to petitions. This case is a typical example. In July 2012, PLF filed a petition on behalf of our clients Jim Chilton, the New Mexico Cattle Growers’ Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau to delist the gypsum wild-buckwheat and downlist the black-capped vireo, Kuenzler hedgehog cactus, lesser long-nose bat, and Tobusch fishhook cactus from endangered to threatened. After the Service didn’t make its 90-day finding in time, PLF sued in federal court to compel it to act. In September 2013, the Service belatedly found that PLF’s petition “may be warranted,” initiating the 12-month window to make a final decision. But once again, the Service has failed to comply with the Endangered Species Act’s deadlines.
In this case, our petition was based entirely on the government’s own five-year status reviews conducted between 2005 and 2010 that recommended reclassifications of all five species. PLF and our clients presented no new evidence, but simply asked the Service to act on its own recommendations. All too often, the Service drags its feet and doesn’t act until it is threatened by litigation. These classifications are not academic to our clients; the listing status of these species has a significant impact on their property rights. And they are entitled under the statute to a decision on their petition in a timely manner. Therefore, we have asked a federal court in New Mexico to order the Service to make the required final decision.
The complaint we filed in the United States District Court for the District of New Mexico is here.