November 2, 2017

What constitutes a “subspecies” under the Endangered Species Act?

By Kaycee Royer Attorney

The U.S. Fish and Wildlife Service should not be allowed to hide the ball from the public when determining which species can be listed under the Endangered Species Act—especially when the agency’s decisions can cost Americans billions of dollars. That is why today PLF attorneys filed, on behalf of a broad coalition of property rights, sound science, and home building industry advocates, a complaint against the U.S. Fish and Wildlife Service challenging the agency’s denial of the coalition’s petition to delist the coastal California gnatcatcher from the Endangered Species Act.

For years, members of the coalition have shown that the gnatcatcher is not a distinct subspecies capable of being listed under the Endangered Species Act. In 2014, the coalition submitted a petition to the Service demonstrating that the gnatcatcher should be delisted based on DNA and other studies. The coalition argued that, because the gnatcatcher in Southern California is not genetically distinct from the millions of gnatcatchers in Baja California, the bird’s Southern California population should not be listed as a threatened subspecies. Despite showing that the “subspecies” status of the bird is not based on solid science, the U.S. Fish and Wildlife Service denied the delisting petition, claiming that the petitioners had not disproven its “subspecies” status. Yet the agency failed to articulate what standard or definition it was using to reaffirm that highly contested and controversial determination.

Our complaint alleges two bases on which the denial of the petition violates the law. First, the denial violates the basic administrative law principle that agencies must use reasoned decision-making when listing or delisting species. When the Service rejected our petition, it acknowledged that it was not going to define “subspecies,” the very term upon which the denial rests, even while acknowledging that the term enjoys no commonly accepted meaning among scientists. Thus, by not defining that key term, the Service effectively reserved to itself the right to use whatever definition of “subspecies” suits it best at any time. This arbitrary power prevents the regulated public from challenging any “subspecies” designation because the Service can always move the goal posts.

Second, the denial violates the Federal Advisory Committee Act. When agencies rely upon outside expert panels, that Act requires them to provide notice to the public along with the opportunity for the public to participate in the panels’ work. In this case, however, the Service secretly convened a panel to analyze data without giving notice or an opportunity for the public to participate in deliberations. The Service then heavily relied upon the panel’s report to deny the delisting petition.

The gnatcatcher’s listing is particularly injurious given the significant negative economic impacts that it creates. Approximately 200,000 acres in San Diego, Orange, Riverside, San Bernardino, Los Angeles, and Ventura Counties have been designated as critical habitat for the gnatcatcher. The Service itself has estimated that this designation will cost nearly $1 billion by the year 2025, principally in the form of negative impacts to the home building industry. Thus, the gnatcatcher’s erroneous listing severely exacerbates California’s existing affordable housing crisis by unnecessarily locking up thousands of acres that could be used to build more housing for Californians.

It is time for the courts to require the Service to act consistently, fairly, and reasonably when making endangered species determinations, especially those like the gnatcatcher’s listing. Landowners should not have to shoulder the heavy cost of protecting specious subspecies like the coastal California gnatcatcher.

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Center for Environmental Science, Accuracy & Reliability, et al. v. U.S. Department of Interior, et al.

The federal government has expanded its reach using the Endangered Species Act to cover spurious “subspecies.” The ESA does not define “subspecies” and the Fish and Wildlife Service has offered no definition of its own. Instead, it simply announces when it has determined a “subspecies” to exist and, relying on the subspecies’ smaller numbers relative to the entire species, imposes onerous regulations. The California gnatcatcher was listed as a threatened subspecies, but a 2013 study shows that, at a DNA level, the songbird is not meaningfully distinct from millions of gnatcatchers dwelling in Baja California. PLF represents a coalition of property owners, developers, and scientists in a challenge to the continued listing of this thriving species.

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