PLF sues feds for failing to follow through on ESA petition

Attorneys with Pacific Legal Foundation filed a lawsuit today against Interior Secretary Sally Jewell and other federal authorities, alleging that they violated the Endangered Species Act (ESA) by failing to respond to PLF’s petition to reclassify six ESA-listed species.  PLF and agriculture groups in California and Oregon submitted the petition in 2011, asking the government to “delist” the Inyo California towhee, and “downlist” the arroyo toad, Indian Knob mountain balm, Lane Mountain milk-vetch, Modoc sucker, and Santa Cruz cypress.  In June, 2012, the U.S. Fish and Wildlife Service announced that PLF’s petition may warrant action.  PLF is now suing because the agency failed to propose to reclassify the species according to mandatory ESA deadlines, after concluding that the reclassifications may be necessary.

The story of this case actually began almost a decade ago.  In 2005, PLF settled a lawsuit that required the Service to perform “status reviews” for dozens of ESA-listed species occurring mainly in California.  The ESA requires status reviews for all listed species at least once every five years, but the Service had been neglecting that duty until PLF sued.  As a result of PLF’s lawsuit, the Service issued status reviews for the aforementioned six species in 2008 and 2009.

The status reviews revealed that the listing status of each species was incorrect.  The Service found that the Modoc sucker, for example, should be downlisted from “endangered” to “threatened” status because surveys showed that it is more abundant than the Service believed when it listed the sucker under the ESA.  The Service, however, did not act on the results of its status reviews.  Each species instead remained listed in its original category, despite the Service’s own scientific conclusions that the listings were not accurate.

PLF cited the Service’s status reviews in the 2011 petition as evidence that the Service should revisit the listing status of each species.  The Service’s initial finding on PLF’s petition explained that the petition presented information showing that reclassifying the species “may be warranted.”  But the Service did not meet the December, 2012, deadline to follow through on that finding and propose a rule to reclassify the species.  The Service has still not proposed such a rule.

The Service’s failure to reclassify the species is not merely harmless bureaucratic delay.  ESA listings can have widespread effects on people.  They can prevent people from using land that listed species are thought to inhabit, force people to go through expensive and time-consuming consultations to get federal permits, and even result in criminal prosecution.  It is important that the Service ensure, at the very least, that such restrictions are necessary to conserve a species before enforcing them against people.  When the Service ignores science and continues to protect species that do not qualify for their listing status, the ESA becomes arbitrary.  Consider the arroyo toad, for instance.  The Service increased the toad’s critical habitat by almost 87,000 acres in 2011, even though the agency knows the toad’s listing status is in doubt.  The expanded critical habitat now covers large areas in several Southern California counties, but is that really necessary if the toad is not endangered?

PLF filed its lawsuit in the United States District Court for the Eastern District of California.  PLF attorneys represent the California Cattlemen’s Association, California Farm Bureau Federation, and the Oregon Cattlemen’s Association.  They seek an injunction requiring the federal government to issue a “12-month” finding responding to their petition to delist and/or downlist the Inyo California towhee, arroyo toad, Indian Knob mountain balm, Lane Mountain milk-vetch, Modoc sucker, and Santa Cruz cypress.

You can read the complaint here.

And here is some basic information about the species in PLF’s petition:

- The Inyo California towhee is a bird that occurs in Inyo County, California.  It is currently listed as threatened, but the Service recommended that it should be delisted in 2008.

- The arroyo toad is an endangered species that the Service recommended should be reclassified as a threatened species in 2009.  The arroyo toad occurs in Los Angeles, Monterey, Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and Ventura Counties, California.

- The Indian Knob mountain balm is a plant that the Service recommended for downlisting in 2009.  It occurs in San Luis Obispo County, California.

- The Lane Mountain milk-vetch is a plant that occurs in San Bernardino County, California.  The Service recommended that it should be downlisted from endangered to threatened in 2008.

- The Modoc sucker is a fish that is listed as endangered, and which the Service recommended should be downlisted in 2009.  The Modoc sucker occurs in Lassen and Modoc Counties, California; and Lake County, Oregon.

- The Service recommended that the Santa Cruz cypress should be downlisted from endangered to threatened status in 2009.  The cypress occurs in Santa Cruz County, California.