Fish and Wildlife Service settlements of 2011

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Two court cases from 2011 were consolidated into the Fish and Wildlife Service settlements of 2011. The U.S. Fish and Wildlife Service settled with two environmental organizations, the Center for Biological Diversity and WildEarth Guardians. The agreement required the Fish and Wildlife Service to make listing decisions for over 251 candidates for federal protection under the Endangered Species Act.

Background

Each year the U.S. Fish and Wildlife Service receives petitions from the public to label an animal or plant species as an endangered or threatened species. The petitions are called listing petitions and are formal requests to place an animal or plant on the federal list of endangered and threatened species. The federal listing process includes specific legal deadlines required under the Endangered Species Act (ESA). For example, within 90 days of receiving a listing petition, the service must say whether relevant scientific information exists warranting the listing of the species. This action is called a 90-day finding. Within 12 months of receiving a petition, the service must conduct a formal review of a species if the agency's 90-day finding supported listing the species as endangered or threatened.

The Fish and Wildlife Service receives its listing budget from Congress. In fiscal year 2010, the service had a listing budget of $22.1 million.[1][2][3]

WildEarth Guardians, an environmental advocacy group, sued the Fish and Wildlife Service, arguing that the agency failed to meet statutory deadlines for the group's petitions. Between December 2009 and March 2010, WildEarth Guardians filed 10 complaints arguing that the government failed to conduct 12-month formal reviews for certain species. The group brought five legal cases challenging other decisions made by the Fish and Wildlife Service. In January 2011, the U.S. District Court for the District of Columbia consolidated the challenges into one case, WildEarth Guardians v. Salazar. A second case, Center for Biological Diversity v. Salazar, consolidated legal challenges from the Center for Biological Diversity, an environmental advocacy group. The Center for Biological Diversity case involved listing decisions separate from the WildEarth Guardians case.[4]

Settlement

The New Mexican meadow jumping mouse was listed as an endangered species in July 2014 as a result of the 2011 settlement.

The D.C. Circuit Court argued that the litigation was meant "to obtain a settlement or other remedy" requiring the Fish and Wildlife Service to focus on listing additional species as endangered or threatened and deciding whether or not to add candidate species to the federal list. According to the court, the service wanted "to make greater progress in resolving the status of the many species that are candidates for listing." The court wrote, "Accordingly, from a very early stage in the parties' settlement negotiations, the [Fish and Wildlife Service] sought to reach an agreement acceptable" to WildEarth Guardians and the Center for Biological Diversity.[3]

In May 2011, the Fish and Wildlife Service settled with WildEarth Guardians and the Center for Biological Diversity. The settlement agreements included a plan requiring the service to decide the listing status of 251 candidate species before September 2016. The 251 species were candidate species and thus would eventually be listed. The settlements required the Fish and Wildlife Service to make final decisions for the 251 species before September 30, 2016. Further, WildEarth Guardians was required to limit its petitions for listing species to 10 species per year until September 30, 2016. In addition, WildEarth Guardians and the Center for Biological Diversity were each required to limit their litigation challenging the service's actions. The settlements also required the Fish and Wildlife Service to make initial listing decisions for approximately 500 species. The multi-year listing plan set the Fish and Wildlife Service's listing priorities between 2011 and 2016. WildEarth Guardians and the Center for Biological Diversity were granted payment of attorney fees by the court; the amount of fees awarded to the groups was not specified in the settlement agreements.[3][5] In addition, the settlements established specific deadlines for specific species. The Fish and Wildlife Service was required to make final decisions for listing the New Mexican meadow jumping mouse, the Pacific fisher, and the greater sage grouse by September 30, 2015. The service was also required to submit either proposals to list or decisions not to list the Sonoran desert tortoise by September 30, 2015. As of September 2015, the meadow mouse was listed as endangered, the Pacific fisher was a proposed threatened species, and the sage grouse was not listed.[3]

The complete list of the species requiring listing actions because of the settlement can be found here.

Response

The greater sage grouse was kept off the federal list of endangered species in September 2015. It was among 251 candidate species requiring attention after the 2011 settlement.

Gary Frazer, the Fish and Wildlife Service's assistant director for endangered species, said the 2011 settlements reduced the number of listing petitions and lawsuits against the agency and cited a decline in the number of candidate species. As of November 2012, the candidate list had 192 species; as of September 2015, the list had 144. "We have far fewer petitions coming in the door, far less litigation enforcing deadlines to respond to those petitions. ... As a result, we're able to put more of our resources toward making determinations on all those species that had been on our candidate list, many of them for many years," Frazer argued in 2013.[6]

Business groups

Some trade organizations and business groups viewed the 2011 settlements as an example of sue and settle. This concept, which is used by some business groups and property rights groups, refers to a private group's lawsuit against a federal agency that mandates that agency's priorities and activities through a court-approved settlement. In a May 2013 report entitled Sue and Settle: Regulating Behind Closed Doors, the U.S. Chamber of Commerce, a nonprofit organization of businesses, local chambers of commerce, trade and professional associations, argued that the 2011 settlements removed the Fish and Wildlife Service's policymaking discretion and would require that the agency "satisfy the narrow demands of outside groups." The report further argued that more than 75 percent, or approximately $15.8 million, of the Fish and Wildlife Service's $20.9 million listing budget in fiscal year 2011 went toward actions required under the 2011 settlement agreements and other court orders. "In other words, sue and settle cases and other lawsuits are effectively driving the regulatory agenda of the Endangered Species Act program at [the Fish and Wildlife Service]," the chamber argued.[7]

Environmental groups

WildEarth Guardians' website called its settlement "a critical step in halting the extinction crisis by giving the Endangered Species Act a more significant role in preserving our nation’s invaluable biodiversity."[6][8]

The Center for Biological Diversity's endangered species director, Noah Greenwald, said that while he believed the Barack Obama administration was more supportive of the Endangered Species Act than the George W. Bush administration, he argued, "I don't think the Obama administration has really prioritized endangered species protections." In August 2012, the CBD submitted a petition to list 53 species as endangered or threatened. The petition was permitted under the settlement. Critics of the petition, such as the Republican-led U.S. House Committee on Natural Resources, argued that the petition violated "the spirit of the agreement." Gary Frazer, the service's endangered species director, said in response to the petition, "We're disappointed that they filed another large, multi-species petition. Fifty-three species is a large number, and the species are spread across the country." Greenwald responded, "I don't know any argument for why if there's a species that's endangered, why you wouldn't want to protect that. [CBD]'s goal is to see the species that need protection get protection." Greenwald argued for increasing federal funding for the Fish and Wildlife Service's endangered species activities.[6][9]

Challenges to the settlements

In April 2014, the United States Court of Appeals for the District of Columbia Circuit dismissed a challenge from the National Association of Home Builders, a trade association that had argued that the settlements force U.S. Fish and Wildlife Service to violate the Endangered Species Act and neglect other conservation efforts. Judge Emmet Sullivan dismissed the challenge, writing, "[The settlements] do not dictate that the service reach any particular substantive outcome on any petition or listing determination." Sullivan was the federal judge who approved the settlements in 2011.[10]

In March 2014, Oklahoma Attorney General Scott Pruitt (R) and the Oklahoma-based oil and natural gas industry trade group Domestic Energy Producers Alliance (DEPA) sued the Fish and Wildlife Service over the settlements. Pruitt argued that the federal government collaborated with the environmental organizations to get a favorable outcome for the litigants. Pruitt further argued that the relationship between the agency and the groups violated the Endangered Species Act. "Increasingly, federal agencies are colluding with like-minded special interest groups by using ‘sue and settle’ tactics to reach ‘friendly settlements’ of lawsuits filed by the interest groups," Pruitt said in a statement. In addition, Pruitt argued that the service violated the Endangered Species Act's procedural requirements when the agency agreed to the multi-year listing plan. The Domestic Energy Producers Alliance (DEPA), which joined the lawsuit, said that the Fish and Wildlife Service's actions would prevent energy production and negatively affect private property rights. "DEPA joins the state of Oklahoma in this litigation, not only on behalf of our members, but all citizens of this great country, whose rights are threatened when our government precludes participation in the political, administrative and judicial process," the organization's president Mike McDonald said in a statement.[11][12]

As of September 2015, no further action on the lawsuit was taken.

See also

Footnotes

  1. ↑ U.S. Department of the Interior, "Fiscal Year 2014 Budget Justification for Fish and Wildlife Service," accessed September 14, 2015
  2. ↑ U.S. Fish and Wildlife Service, "Listing a Species as Threatened or Endangered," accessed September 14, 2015
  3. ↑ 3.0 3.1 3.2 3.3 U.S. Fish and Wildlife Service, "WildEarth Guardians v. Salazar," May 10, 2011
  4. ↑ WildEarth Guardians, "Endangered Species Protection," accessed September 17, 2015
  5. ↑ Washington Post, "Interior Dept. strikes deal to clear backlog on endangered species listings," accessed May 10, 2011
  6. ↑ 6.0 6.1 6.2 E&E News, "Obama settlement with green groups spurred major change in listing decisions," January 11, 2013
  7. ↑ U.S. Chamber of Commerce, "Sue and Settle: Regulating Behind Closed Doors," May 2013
  8. ↑ WildEarth Guardians, "An Historic Settlement," accessed September 24, 2015
  9. ↑ U.S. House Committee on Natural Resources, "Center for Biological Diversity Disregards 2011 Settlement Agreement, Files Major Endangered Species Act Petition," August 8, 2012
  10. ↑ Center for Biological Diversity, "Court upholds massive listing settlements between FWS, greens," April 1, 2014
  11. ↑ Fox News, "Lawsuit challenges feds over 'sue and settle' tactics on endangered species," March 18, 2014
  12. ↑ State Impact, "Oklahoma AG and Energy Group Sue U.S. Government Over Endangered Species Settlements," March 18, 2014
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