May 31, 2013

PLF sues feds over ESA petition in the Southwest

By Brian T. Hodges Senior Attorney

Today attorneys with Pacific Legal Foundation (PLF) filed a complaint against Interior Secretary Sally Jewell and other federal authorities because they failed to respond to PLF’s petition to reclassify five species under the Endangered Species Act (ESA).  The lawsuit is yet another case in which the federal government did not comply with the ESA’s mandatory deadlines or follow its own recommendations for “delisting” and “downlisting” species that may not warrant federal protection.

Last year PLF, several Southwest agriculture organizations, and an Arizona rancher filed a petition with the United States Fish and Wildlife Service to reclassify the gypsum wild-buckwheat, black-capped vireo, Kuenzler hedgehog cactus, lesser long-nosed bat, and Tobusch fishhook cactus under the ESA.  The petition was entirely based on the Service’s own scientific recommendations—the Service issued status reviews for those species from 2005 to 2010, and concluded in each case that the species under review should either be removed from the endangered species list or reclassified.

For example, the Service’s review of the Kuenzler hedgehog cactus—a plant that is known to occur in New Mexico—noted that the species actually occupies a much broader range and occurs in several populations that were not known to exist at the time the Service listed the cactus under the ESA.  Similarly, the Service determined that the lesser long-nosed bat no longer warranted an “endangered” listing, and the Service even recommended developing a special rule that would allow more livestock grazing on land in the bat’s range.  The problem is the Service did not act on its recommendations and did not move to reclassify those species, even though the best available scientific information demonstrated that the listings were outdated.

The ESA dictates that the Service must respond to a petition to reclassify species within 90 days after receiving it.  In its initial response, the Service simply needs to determine if the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.”  The Service should have issued its initial response to PLF’s petition last October.  But the Service still has not responded to the petition, so PLF is asking a court to order the Service to respond.

The Service’s failure to reclassify species according to new scientific information is a serious matter that affects people.  Ranchers who enter into agreements with the government to graze cattle on public land may be required to abide by rules that make their operations less productive in order to protect habitat for an endangered species.  Farmers might be required to forgo planting in certain areas that encompass part of a protected species’ range, or the government might limit the delivery of irrigation water.  Such restrictions, however, are arbitrary if they are imposed for the purpose of protecting a species that does not qualify for protection under the ESA.

PLF filed its lawsuit in the United States District Court for the District of New Mexico.  PLF attorneys represent the New Mexico Cattle Growers’ Association, Arizona rancher Jim Chilton, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau.

You can read the complaint here.

What to read next