March 12, 2012

So much for regulatory common sense: The sad tale of the valley elderberry longhorn beetle continues

By So much for regulatory common sense: The sad tale of the valley elderberry longhorn beetle continues

When Pacific Legal Foundation petitioned the United States Fish and Wildlife Service in September 2010 to delist the valley elderberry longhorn beetle from the list of regulated species under the Endangered Species Act, the agency faced a choice–would the Service be part of an ESA success story, act upon its own scientists’ recommendation, and formally recognize that the beetle is a recovered species that no longer requires federal protection? Or would the Service instead sit on its hands, force Californians to continue to pay for unnecessary and outdated beetle mitigation measures, and evince a stronger interest in preserving its regulatory authority than in acting in accordance with science?

Unfortunately, the U.S. Fish and Wildlife Service has chosen the latter path.  Indeed, more than five years after its scientists concluded that the elderberry beetle is a recovered species, the Service’s 1980 listing of the beetle as a threatened species remains in place.  Sadly, the agency’s stalling tactics come at the cost of sensible flood control, private property rights, and downright common sense.

As a result, PLF was forced today to file its second lawsuit in a year over this species. Last year’s lawsuit concerned the Service’s delay in providing an initial response to our Sept. 2010 delisting petition.  And while the Service eventually responded by indicating that delisting of the elderberry beetle may be warranted (thereby mooting the 2011 litigation), the agency has done nothing since then, letting its statutory 12-month deadline for providing a final response to our Sept. 2010 delisting petition expire.

Thus, today’s lawsuit asks the United States District Court for the Eastern District of California to compel the U.S. Fish and Wildlife Service to comply with the law and make the long-delayed final determination over the beetle’s regulatory status.  As we submit in our complaint, the Service’s refusal to indicate whether delisting is in fact warranted is plainly a violation of the ESA.

Lest the above doesn’t convince you that litigation is necessary to force the agency’s hand (and we wish it weren’t), note that the Service has promised time and again that a final delisting rule is in the works, with nothing to show.  The Service’s latest assurance took place last week, when the agency’s Regional Director, Ren Lohoefener, informed me by letter that “a draft 12-month finding has been prepared, is under review in the Service’s Regional Office, and should go to our Washington DC office very soon for their review.”

That Service personnel in D.C. have yet to review this draft is odd, considering that in 2009 the Service indicated that “[a] delisting rule is currently being reviewed by the Washington Office.”  It’s also worth bearing in mind that the Service (through the Interior Department) informed Rep. Dan Lungren in January 2010 that a final determination over the beetle’s regulatory status “has been identified as a high priority for FY 2010 and the Service anticipates making a decision on the appropriate status of the beetle within the year.”  And recall that when flood control officials expressed frustration over the beetle’s regulatory status, the Service told the Apppeal-Democrat that a delisting plan would be available for the public’s review in 2010.  Of course, that didn’t happen.

In my opinion, the U.S. Fish and Wildlife Service’s failure to live up to its repeated promises over the elderberry beetle constitutes borderline deception, and I am at a loss to explain the agency’s stubborn refusal to delist this species.  Hopefully, however, this lawsuit will convince the Service to finally do what’s right and to formally recognize the species’ recovery.

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