United States Fish & Wildlife Service belatedly accepts great news

February 09, 2017 | By JOHANNA TALCOTT

“What a shame. It says here the species are recovering.”

You’d think the United States Fish & Wildlife Service would be thrilled to celebrate the successful recovery of previously endangered plant and animal species. But it’s taken nine long years of litigation by Pacific Legal Foundation to convince the Service to finally issue proposed regulations delisting or downlisting five plant and animal species under the Endangered Species Act. Nine years, despite the fact that the Service had already determined that their listing status was no longer warranted.

The proposals include removing the black-capped vireo (a small songbird), the lesser long-nosed bat, and a buckwheat species from the endangered species list, as well as downlisting two types of cactus. Hopefully the Service sticks with its plan to remove the two animal species from the list entirely, rather than downlisting them too. While going from “endangered” to “threatened” sounds like a significant change, it could have virtually no practical impact.

You see, the Service long ago decided that it could rewrite the ESA to thwart Congressional intent. Congress drafted the ESA so that the prohibition against “take” of an animal species (a broad restriction that imposes harsh penalties, including imprisonment) only applied to those listed as “endangered.” But shortly after the ESA’s passage, the Service drafted a regulation saying that the take prohibition also applied to threatened species. Not only is that totally counter-productive—it is illegal.

Under the law, applying the take prohibition to threatened species must be an ad hoc determination for each species listed. Therefore, the Service must either exempt downlisted species from the take prohibition or make an individualized determination for each one that the stringent take prohibition is necessary—something that Congress explicitly reserved for species on the brink of extinction.

This case also illustrates that the Endangered Species Act is not a zero-sum game. The delisting or downlisting of species means both freeing citizens and landowners from the ESA’s burdensome grip AND marking the successful recovery of previously endangered species. So this is not just a victory for PLF’s clients, who have shown great tenacity in petitioning and suing the Service for so many years, it should also be great news for the recovered species and the bureaucrats and environmentalists who have been working to protect and rehabilitate them.

It really shouldn’t take a nearly a decade of litigation to force the Service to follow the law and its own regulations—after all, it expects the rest of us to follow them! The Service has obligations and responsibilities in its administration of the ESA but, thanks in part to the extreme politicization of the Act, consistently shirks or delays them. Until the Service finally starts takings its duties seriously, PLF will continue to fight on behalf of citizens and property rights all around the nation by holding FWS accountable with litigation like this.