April 18, 2018

Preble’s delisting petition denied

By Damien M. Schiff Senior Attorney

Today, the U.S. Fish and Wildlife Service published its denial of PLF’s petition to delist the Preble’s meadow jumping mouse from the Endangered Species Act. The short finding makes two basic arguments, one procedural and one substantive.

As to procedure, the petition denial observes that the genetic study PLF relied on in the petition—a 2013 effort by two researchers at the University of New Mexico, which shows that the Preble’s mouse should not be considered its own subspecies but instead should be considered part of a large and plentiful jumping mouse population that extends north from Colorado into Canada—has already been the subject of two agency reviews: the Service’s 2014 status review of the mouse, and the agency’s 2016 draft mouse recovery plan. In those reviews, the Service determined that the 2013 study does not warrant a change in the mouse’s taxonomy. Thus, today’s decision says, effectively, “we’ve looked at this before and our opinion hasn’t changed—DENIED.”

As to substance, the petition denial explains that the 2013 genetic study itself disclaims any desire to revise the taxonomic status of North American jumping mouse. See Petition Denial at 5 (“However, the study does not propose to revise the formal taxonomy of the Preble’s mouse or any of the other subspecies of jumping mice (Malaney and Cook 2013, p. 10). Specifically, the study concludes, “additional tests will be required before hypotheses of infraspecific taxonomic synonymy can be implemented … [and that] a revised taxonomy of the group is needed but is outside the context of this study” (Malaney and Cook 2013, p.10)).

Neither of these arguments holds water.

First, as to procedure. The Endangered Species Act establishes a two-step procedure for processing petitions. The first step (the step at which the Service denied our delisting petition) is for the Service to determine whether the petitioned action contains substantial scientific or commercial information indicating that the petitioned action “may be warranted.” 16 U.S.C. § 1533(b)(3)(A). The Service’s own regulations governing petition processing explain that this modest standard is met whenever a petition presents credible information such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. 50 C.F.R. § 424.14(h)(1)(i). Thus, to move past this initial finding, a petition need not show that the requested action is warranted, but only that it may be warranted. Moreover, a petition need not make a showing that would convince the Service that the requested action may be warranted, but instead merely a showing sufficient to convince a reasonable person that the requested action may be warranted. In today’s finding, however, the Service did not employ this relaxed first-step standard. Rather, it used the standard that is to be applied at the second step of the petition process, when the Service must determine, in light of all the evidence collected through public comment and agency solicitation, whether the petitioned action is warranted. 16 U.S.C. § 1533(b)(3); 50 C.F.R. § 424.14(h)(2). Although the Service’s petition denial cites the agency’s 2014 and 2016 reviews, in these actions the Service simply asked, “Do we believe that this 2013 study merits a change in the Preble’s taxonomic status?” In other words, neither prior review asks whether a taxonomic change may be warranted (as opposed to “is warranted”) in the view of a reasonable person (as opposed to the Service’s own estimation). To be sure, the Service’s petition regulations warn that, “[w]here [a] prior review resulted in a final agency action, a petitioned action generally would not be considered [to] be warranted unless the petition provides new information not previously considered.” But neither the 2014 status review nor the 2016 draft recovery plan qualifies as “a final agency action,” as neither is subject to judicial review. Hence, even the Service’s own regulations cut against today’s petition denial.

Second, as to substance. It is true that the 2013 study does not itself essay a new taxonomy for North American jumping mice. But that is beside the point. Suggesting a new taxonomic division for all of the existing twelve subspecies of jumping mice is unnecessary to show that the subspecies designation for one of them—the Preble’s—is unwarranted. Moreover, the 2013 study states that, in light of “the deep divergences of some lineages and shallow divergences of others, a revised taxonomy of the group is needed,” Malaney & Cook (2013), at 10 (emphasis added), i.e., the status quo is flawed and the Service should take corrective action. Such action is particularly warranted given that the Service’s 2013 affirmation of the Preble’s subspecies classification (the agency’s most recent formal finding) cites the purported “considerable genetic differentiation” between the mouse and other mouse subspecies as one important basis to justify the Preble’s subspecies status. Yet that conclusion, as explained in PLF’s delisting petition, was based entirely on comparisons between the Preble’s mouse and its eastern cousins, whereas the subsequent 2013 study demonstrates that the Preble’s is quite closely related to plentiful northern mouse populations, groups which were not reviewed in the studies that the Service’s 2013 finding cites.

And a final, more general note. For those who have been following our recent taxonomy work under the Endangered Species Act (see, e.g., here and here), it should come as no surprise that today’s petition denial contains no standard for diagnosing subspecies, either generally or as applied to jumping mice. The same is true for the Service’s 2016 draft recovery plan and 2014 status review. As for the 2013 finding, that determination asserts that the Preble’s “meets or exceeds numerous, widely accepted subspecies definitions.” Of course, the Service failed to acknowledge that the cited definitions are not consistent. Thus, which standard is the right one? The public has no way of knowing, and one may reasonably fear that that is precisely how the Service wants it.

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Markle v. U.S. Fish and Wildlife Service

In 2012, government bureaucrats designated more than 1,500 acres of privately owned land in Louisiana as a “critical habitat” for the federally-protected dusky gopher frog. Regardless of the fact the frog neither lives anywhere in the state nor could live there, the critical habitat designation makes the land off-limits for all of the property owners including Ed Poitevent and his business, Markle Interests, and the Weyerhaeuser Company. On January 22, 2018, the U.S. Supreme Court announced it will hear a challenge to this blatant abuse of the Endangered Species Act. PLF represents the Poitevent family and related businesses, and will represent their interests before the Court.

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