On July 12, 2011, the U.S. Fish and Wildlife Service ("FWS") and the Center for Biological Diversity ("CBD") settled litigation concerning the FWS's obligations to render decisions on whether species warrant protection under the Endangered Species Act ("ESA"). The settlement does not guarantee that the subject species will be listed as threatened or endangered. Rather, under the terms of the settlement, the FWS agreed to make petition findings and final listing decisions for more than 700 species by 2018. The FWS also agreed to attempt concurrent critical habitat designations.
The FWS had separately settled with WildEarth Guardians
("WEG") in twelve related lawsuits that had been
consolidated with CBD's action in In Re Endangered Species
Act Section 4 Deadline Litigation, MDL Docket No. 2165
(D.D.C.). The WEG/FWS settlement required the FWS to complete
initial petition findings for over 600 species and issue proposed
listing rules or not-warranted findings for 251 species, including
many at issue in the CBD litigation. CBD had opposed the FWS/CBD
settlement and sought to attach specific deadlines to findings for
specific species. The FWS/CBD agreement has specific timeframes for
FWS to publish proposed listing rules or not-warranted findings on
three dozen species, adds requirements for FWS to issue 12-month
findings on three species not covered by the FWS/WEG agreement, and
pushes up the deadline for a decision on the Mono Basin sage-grouse
to Fiscal Year 2013.
In exchange, the FWS gets a reprieve from listing litigation that
it states had dominated its workload. Since
2007, environmental organizations including CBD have petitioned to
list more than 1,230 species, nearly as many as were listed during
the previous 30 years. Not surprisingly, these actions have
generated an enormous administrative backlog and mired the
FWS's endangered species program in litigation. Both the
FWS/CBD and FWS/WEG agreements include provisions intended to
reduce the amount of litigation regarding listing decisions in
order to allow the FWS to focus its resources on species in need of
protection under the ESA. The FWS/WEG agreement provides that WEG
shall not file any suit nor actively solicit or materially support
any other such parties to enforce the statutory listing deadlines
or challenge any warranted-but-precluded finding prior to March 31,
2017. The FWS/CBD agreement pushes back the FWS's decision
deadlines to 2016 if certain litigation volume and remedy triggers
are exceeded. However, neither settlement precludes other groups
from filing suit, and challenges to the FWS's final
determinations that listing is not warranted can even be filed by
the plaintiffs. Thus, it is unclear to what extent the settlements
will truly reduce the FWS's litigation burden.
While the settlements do not require listing of the species at
issue, additional listings and critical habitat designations are
likely on the way. This, in turn, could affect property owners and
land managers. The settlements address several California species,
including the California golden trout, the Mojave fringe-toed
lizard, the Mojave ground squirrel, the Tehachapi slender
salamander, San Bernardino flying squirrel, Mono Basin distinct
population segment of greater sage grouse, the mountain
yellow-legged frog, the North American wolverine, the Yosemite
toad, and the Tahoe yellow cress.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.