March 29, 2013

PLF sues fish and wildlife service to compel it to do its job

By Anthony L. Francois Senior Attorney

This week, PLF filed suit against the United States Fish & Wildlife Service, after the Service delayed delisting two species, and down-listing another, for more than five years.   The Service has known that these three species should be reclassified based on its own 5-year status reviews, published in the Federal Register in March 2008.   The two plant species to be delisted are the Eureka Valley evening primrose and the Eureka Valley dunegrass, while the fish species to be down-listed from endangered to threatened is the Tidewater goby.

In 2005, PLF, acting on behalf of the California State Grange, the California Forestry Association, and the California Cattlemen’s Association, completed a settlement agreement with the Fish & Wildlife Service under which it would complete mandatory 5-year status reviews of nearly 100 California species listed under the federal Endangered Species Act.  The Service completed the reviews for these three species in September 2007.  The Service found that the two plant species “no longer require the protections of the Endangered Species Act and should be delisted.”  The Service also recommended “that the Tidewater goby be downlisted to threatened because we believe that it is not in imminent danger of extinction.”

But the years passed, without the Service carrying out its own recommendations.  PLF filed a petition under the ESA in May 2010, asking the Service to make the recommended reclassifications.  The Service is obliged to make an initial finding on reclassification petitions within 90 days, but the Service sat on PLF’s petition until January 2011, when it found that reclassification may indeed be warranted.  When a petition to reclassify may be warranted, the ESA requires the Service to make a final decision within 12 months after the petition is filed.  That would have been May 2011.

But the Service decided to do new 5-year status reviews instead, and to date has not produced any new status reviews or a final decision reclassifying the species.  Meanwhile, the Service significantly expanded the designated critical habitat for the Tidewater goby.  So, it is now time for the federal court to tell the Service to do its job, within the time frames that ESA requires, and reclassify the species.  You can follow the case at PLF’s website here.

What to read next