Why state needs to follow endangered species review mandate

Originally published by Capital Press June 11, 2018.

Under the California Endangered Species Act (CESA), the California Department of Fish and Wildlife (CDFW) is required to conduct status reviews of species listed as either threatened or endangered every five years. The department has unlawfully failed to conduct these five-year status reviews for 231 out of the 235 listed species, and apparently has no intention of conducting the reviews.

In 2016, the California Cattlemen’s Association, with the help of the Pacific Legal Foundation, filed a lawsuit against the CDFW to compel them to conduct the mandatory five-year reviews. The status reviews are extremely important, because they can be crucial to the recovery of listed species. Californians have a vital interest in seeing species recover, for both economic and environmental reasons.

However, without up-to-date information on species, we lack the sound scientific analysis needed to determine if the department’s programs are making progress toward their stated goal of restoring threatened and endangered species.

Feet dragging

Since the lawsuit was filed, CDFW officials have dragged their feet, effectively delaying the 231 overdue status reviews for more than two years. They recognize the reviews are mandatory, but claim they do not need to complete them because it would cause species to go extinct. Yet when pressed on this point, department officials cannot point to anything, other than a lack of resources that would make their contention true.

There are two reasons why the department is wrong about its requirement to complete the five-year reviews.

First, the CDFW fears its other activities will come to a screeching halt because of the resources needed to conduct these five-year status reviews. But the department bases its resource estimates on the wrong type of status review. This confusion between two types of status reviews is like equating traveling from San Diego to Sacramento on foot with traveling there by car. Even though the word “traveling” is the same, the two modes of transportation make the trip extremely different in terms of time required. Similarly, conducting a five-year review is much less time consuming than conducting the extensive status review the department claims it has to undertake.

The department incorrectly argues that to comply with the five-year status review requirement, it needs to undertake what is called a 12-month status review. This more intensive type of review, which requires significant investment of resources and collaboration with outside scientists, ultimately concludes with a recommendation to list or not list the species. These reviews often require multiple CDFW scientists and biologists to review complex and challenging questions related to the species’ legal status. Also, many of these reviews undergo peer review, which adds to the time required for completion.

By contrast, the process for the five-year status review requirement is much less intensive, requiring only 90 days to complete. The five-year review is statutorily equivalent to what is called a petition evaluation, which the department conducts whenever stakeholders petition to list or delist a species under CESA. To complete a five-year status review, the department would only need to evaluate and compile information it has on hand to analyze whether a change in a species’ status is warranted.

Second, the California legislature recognized there would be resource constraints when it enacted the five-year status review requirement. In fact, the wise stewardship of taxpayer resources was a key rationale for the requirement: legislators understood that tracking the progress of species listed under the CESA was necessary to efficiently and effectively allocate funds to those species most deserving of protection. The legislature, understanding the importance of these reviews, has not repealed or relaxed the requirement that the five-year reviews be conducted.

Important role

This five-year status review requirement ensures that the CDFW is periodically checking in on listed species. These reviews play an important role in the conservation of threatened and endangered species, because they compile crucial information about how a species is doing, current population levels, the potential threats and harms the species might face, and how the recovery programs are actually working. This allows officials to make decisions based upon the most up-to-date data and analysis.

The five-year reviews also protect property owners from unnecessary regulatory burdens imposed because of species that are no longer threatened, and they protect taxpayers by ensuring the department is efficiently handling its resources and attending to those species that face the most serious threats of harm.

The federal government recognizes the value of regular reviews in endangered species management. The U.S. Fish and Wildlife Service implements a similar five-year review requirement to ensure species listed under the federal Endangered Species Act are those that actually warrant protection. The federal review revealed that at least seven of the species listed under CESA may be eligible for reclassification or delisting. But because the CDFW has failed to complete its five-year reviews, we have no idea whether these actions might be appropriate at the state level as well.

Californians care deeply about the conservation, protection, and enhancement of our state’s threatened and endangered species, and we have entrusted that vital responsibility to the CDFW. By abdicating its responsibility to conduct regular status reviews of endangered and threatened species, the department is failing to uphold its end of the bargain. It’s time for the CDFW to follow the law and conduct the five-year status reviews as required.

Kaycee Royer is an attorney at Pacific legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.