February 12, 2014

Prodded by PLF lawsuit, feds finally propose delisting Modoc Sucker

By Anthony L. Francois Senior Attorney

Today the Klamath Falls office of the United States Fish and Wildlife Service announced that is proposing to remove the tiny Modoc sucker from the list of endangered species, touting the delisting as a successful recovery of imperiled wildlife under the Endangered Species Act.  A self-congratulatory press release implies that the Service arrived at this decision pro-actively and enthusiastically after successfully laboring to increase this little fish’s dwindling populations.

Would that it really happened that way.  This is not an ESA success story, or a Fish and Wildlife Service success story.  It is a smiley face plastered over 30 years of unfounded federal habitat protections for a healthy fish species that the Service has known for half a decade probably did not warrant ESA protections in the first place.

The announcement fails to mention that the Service is only now getting around to changing the Modoc sucker’s status after concluding that it was no longer endangered four and a half years ago.  Or that prior to coming to that conclusion in 2009, the Service had illegally delayed a required status review of the Modoc sucker for 15 years.

More troubling in the Service’s victory lap is its claim that the delisting is a result of recovery brought about by the Service’s own regulatory impositions.  The actual 2009 status review says something very different.  At page 5, it discloses that many more populations of the fish existed at the time of its listing in 1985 then the Service realized, and that the Service’s concern at the time about hybridization of the fish with another species was simply incorrect.  Oops!

So instead of celebrating a recovery, the Service should be apologizing for getting it wrong in the first place, and for imposing three decades of unnecessary regulation.

So while the proposed delisting of the Modoc sucker is certainly good news, the Service’s record in this case, as with many delisting actions, is anything but.  The Service only did the 2009 status review because PLF sued in 2005 to compel more than a hundred overdue status reviews that the Endangered Species Act requires be done every five years.  Then, in 2011, PLF had to petition the Service to take action to implement the 2009 status review.  The Service failed to take timely action on the petition, and in 2013, PLF had to sue the Service, on behalf of the California Farm Bureau Federation, and the California and Oregon Cattlemen’s Associations, just to get a final response.

That lawsuit, and only that lawsuit, is what led to today’s announcement.

Today’s announcement is the end result of nine years of litigation by PLF, every step of which has been necessary to make the Service comply with its most basic obligations under the Endangered Species Act.  Without PLF’s vigilence, the Service wouldn’t have publicly admitted that the Modoc sucker was not endangered, much less acted to delist it.  Instead, the Service would have continued to evade its legal responsibilities, and landowners and water users would still be subject to ESA regulations to protect a healthy species that evidently did not warrant listing in the first place.

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