March 12, 2014

PLF suit leads to proposed downlisting for tidewater goby

By Anthony L. Francois Senior Attorney

Tomorrow the United States Fish and Wildlife Service will propose reclassifying the Tidewater Goby from endangered to threatened under the Endangered Species Act, after concluding, among other factors, that various concerns that led to the original listing are not as significant as originally thought.

This proposal, similar to recent proposals to delist various species, comes after several years of litigation by PLF, all aimed at simply requiring the Service to do its job under the Endangered Species Act.  An essential aspect of protection of endangered wildlife is that technical and scientific understanding of a species, its habitats, and the status of both is always developing.  Important information about a species’ condition may not be known, or may be misunderstood, when it is listed.  This is why the ESA, 16 U.S.C. section (c)(2), obligates the Service to perform status reviews of every listed species every five years, and why the ESA allows a species to be reclassified, or removed from ESA protections altogether, based solely on errors in the original listing decision.

This is why PLF has spent several years filing petitions and lawsuits to force the Service to complete five year reviews and then to act on those reviews when they recommend changes in status.  The goby is another good example: originally listed in 1994, no status review was done until PLF litigation resulted in one that was completed in 2007.  This review recommended downlisting from endangered to threatened, but true to form, the Service took no action to reclassify the species.  Instead, the Service spent several years fine tuning the critical habitat designation for a species that it had concluded was not endangered.  PLF petitioned for the downlisting in 2010, which should have resulted in a final decision by May of 2011.  Instead, we had to file suit last year to get a final decision on the petition, and tomorrow the Service will finally publish what can only be euphemistically described as its 12-month finding on our four year old petition.

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