Room on the Ark?—Species Get Chance at Listing

Vol. 26 No. 4

Professor Kass is an associate professor of law at Thomas Jefferson School of Law in San Diego, a member of the editorial board of Natural Resources & Environment, and a vice-chair of the ABA’s Endangered Species Committee.

In the Genesis narrative, God instructs Noah to build an ark and bring two of every animal aboard before a great flood. Then, as the story goes, on the day “all the fountains of the great deep were broken up, and the windows of heaven were opened, and the rain was upon the earth for forty days and forty nights,” God closed the ark. King James, Genesis Ch. 7. All animals onboard were to be saved; all others destined to perish.

The Endangered Species Act (ESA), 16 U.S.C. §§ 1531–1599, creates a modern day Noah’s ark for species at risk of extinction. A lucky few at-risk species—charismatic enough, unappetizing enough, on their last gasp enough, and uncontroversial enough (out of Congressional cross-hairs)—get listed as endangered or threatened species pursuant to statutory criteria. See Kalyani Robbins, Strength in Numbers Setting Quantitative Criteria for Listing Species Under the Endangered Species Act, 27 U.C.L.A Envtl. L. & Pol’y 1, 10–22 (2009) [Hereinafter Strength in Numbers]. As of the end of 2011, just under 2,000 plants and animals had a berth on the ESA ark. http://ecos.fws.gov/tess_public/pub/Boxscore.do. As compared with the nearly 20,000 plant and animal species at-risk according to the International Union for Conservation of Nature (IUCN), ESA listed species represent a rather paltry few. See IUCN Red Book Table 1: Numbers of Threatened Species by Major Groups of Organisms (1996–2011) at http://www.iucnredlist.org/about/summary-statistics#How_many_threatened.

For the listed few, the ESA offers an array of protections. The ESA can prohibit their take, limit federal projects likely to jeopardize their continued existence, promote their recovery, trigger a federal agency duty to conserve, and constrain loss of their critical habitat. See 16 U.S.C. §§ 1531–1599; Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. Colo. L. Rev. 277, 281 (1993) [Hereinafter ESA Implementation]. None of these benefits extend to unlisted species. Id.

Thus, analogous to the biblical ark, ESA listed species benefit from legal protections designed to save them from extinction; whereas unlisted at-risk species, bereft of ESA protections, face near certain extirpation. Of course the ark analogy has its limits: not all listed species survive and thrive; not all unlisted at-risk-species necessarily perish; and, unlike the storied Noah’s ark, the modern ark has a wait list. This article looks at the modern ark’s wait list: how species get on it, how it has failed, and a recent effort to fix it.

Wait Listed for the Opportunity to Board the Ark: The Candidate Species and Warranted but Precluded Designations—The ESA provides two routes to listing. Both routes can detour species to the wait list. The U.S. Fish and Wildlife Service (Service) itself may identify species within its jurisdiction for listing. 16 U.S.C. § 1533. The Service designates such identified species as “candidate” species. See K. Mollie Smith, Abuse of the Warranted But Precluded Designation: A Real or Imagined Purgatory? 19 S.E. Envtl. L.J. 119, 124 (2010) [Hereinafter Warranted But Precluded]. The candidate designation effectively puts the species on a listing wait list. If the Service decides to initiate action to list a candidate species, it must follow statutory timelines and notice and comment rulemaking. Id. However, because there is no statutory deadline for the Service to “address candidate species . . . a species may remain on the candidate list indefinitely.” Id.

Alternatively, citizens may petition the Service to list a species. Again, the ESA sets timelines for Service review of citizen petitions. See 16 U.S.C. § 1533(b)(3)(A)-(C). Within a year of finding a citizen petition presents substantial information that listing may be warranted, the Service must determine whether listing is “warranted,” “not warranted,” or warranted but precluded by higher priority listing activities (12-month findings). Id. at § 1533(b)(3)(B). Species found to fall in the “warranted but precluded” (WBP) category transfer over to the candidate species roster. See Warranted But Precluded at 125. Thus, a finding of WBP effectively sends a species to the listing wait list.

Although wait-listed species can eventually be listed, and in fact the ESA promotes their “expeditious progress” onto the ark, in practice the chances are slim and the wait times long. See 16 U.S.C. § 1533(b)(3)(B)(iii); Warranted But Precluded at 126–31 (estimate shows WBP species “spend an average of nineteen years” on the list). Moreover, “[D]ue, at least in part, to these delays, no less than forty-two species have gone extinct while designated as WBP.” Id. at 132. As a consequence, academics have variously described the WBP and candidate species categories as a “black hole for unlisted endangered species,” an “extinction waiting room,” a “purgatory for at-risk species,” and even, an “ER waiting room strewn with the corpses of those species who were forced to wait too long.” Warranted But Precluded at 132 ; Strength in Numbers at 8, ESA Implementation at 286 (1993). Essentially, the listing wait list creates more waiting than listing.

Moving to the Front of the Line: Settling for a Chance to Board the Ark—Two recent settlements attempt a fix to the eternal limbo of the wait list. In September 2011, the District of Columbia District Court approved settlement agreements entered between the Service and plaintiffs WildEarth Guardians (Guardians) and the Center for Biological Diversity (CBD). In Re Endangered Species Act Section 4 Deadline Litigation Orders No. 10-377 (Sept 9, 2011) available at http://www.fws.gov/endangered/improving_ESA/listing_workplan.html [Hereinafter Guardian Settlement, CBD Settlement, collectively, Settlements]. The Settlements conclude plaintiffs’ underlying lawsuits—challenging numerous alleged failures by the Service to meet mandatory ESA decision deadlines—in exchange for the Service’s commitment to proceed with listing determinations for just over 250 wait-listed species.

The Settlements set out an ambitious and relatively expeditious route to the ark for candidate and WBP species currently languishing on the wait list. First, the Service agreed to publish “proposed” rules for listing or determinations that listing is no longer warranted for 251 species by 2016. Guardian Settlement at ¶ 2. The 251 species represent all candidate and WBP species on the wait list as of the end of 2010. See id. Second, the Service agreed to meet interim progress goals for the listing decisions (no fewer than 130 by 2013, no fewer than 160 by 2014, and no fewer than 200 by 2015). Id. at ¶ 6. Failure to meet the interim goals triggers a dispute resolution process and the opportunity for court-ordered relief. Id. at ¶¶ 6, 15 16. Third, for all wait-list species proposed for listing, the Service agreed to make “final” listing determinations in accordance with ESA deadlines and declared its intent to designate critical habitat concurrently with the final listings. Id. at ¶ 7 8. Additionally, the Settlements identify specific deadlines for particular wait-listed species, expediting their move to the top of the waiting list. For example, the Service agreed to make 12-month findings for the Cactus Ferruginous Pygmy-Owl by the end of FY 2011; the Mexican wolf, Miami blue butterfly, and wekiu bug by the end of FY 2012; and for the New Mexico meadow jumping mouse by FY 2013. Id. at ¶ 2; CBD Settlement at ¶ B3. At the same time, the Settlements allow the Service flexibility to prioritize (or de-prioritize) wait-list species according to annual survival threat evaluations.

In addition to addressing the wait-list backlog, the CBD Settlement provides the opportunity for an even greater number of at-risk species to move in an orderly fashion onto the ark or onto the ark wait list. Specifically, the CBD Settlement establishes an expeditious timeline for “90-day” (petition sufficiency) and/or “12-month” (warranted, not warranted, or WBP) findings by the Service for nearly 500 additional species. See CBD Settlement at ¶ B1. The Service agreed to make the findings for these species—all previously petitioned for listing by CBD—by the end of FY 2011. Id. at ¶¶ A10 A12, B1.

Working together, the settling parties have shaped an ambitious six-year work plan to frame, focus, and guide the Services’ listing program priorities for more than 700 at-risk species. The agreements are heartening, even inspiring. However, a number of reasons exist for tempered enthusiasm. First, many of the Settlement commitments (e.g., the 90-day findings, 12-month findings, final rules, and declared intent to designate critical habitat concurrent with final rules) merely reiterate actions already required by law. See 16 U.S.C. § 1533(a) (b).

More critically, the Settlements dictate decision timelines, not decision outcomes. Thus, the Settlements give covered species only the chance, not the right, to board the ark. The Service agreed to make findings as to whether or not listing is warranted, and it may decide not. Fortunately, the Service has already identified at least 251 of the species as candidate or WBP species, making it seemingly arbitrary and capricious for the agency to reverse itself with unwarranted findings if threats to the species remain. Perhaps for these very reasons, both plaintiffs prudently preserved their rights to challenge the Service listing decisions on their merits. Guardian Settlement at ¶ 23; CBD Settlement at ¶ A16, D6.

Another concern relates to the risk of delay and adverse outcomes during final listing. The Guardian Settlement provides that for “each Proposed Rule submitted to the Federal Register” pursuant to the agreement, the Service “shall make a final listing determination in accordance with the statutory deadlines. . . .” Guardian Settlement at ¶ 7. The risks arise because the ESA, while explicitly providing for final rule publication within one year of proposed rule publication, also provides for time extensions and for rule withdrawals. See 16 U.S.C. § 1533(b)(6)(A)(iii) (iv).

Also of concern, Guardians and CBD agreed not only to dismiss the underlying lawsuits but also to use their best efforts to obtain voluntary dismissals in other pending cases, temporarily forego the bringing of various other listing-related lawsuits, and even forebear from encouraging others to pursue such lawsuits. See Guardian Settlement at ¶ 9; CBD Settlement at ¶¶ B9 10. These litigation constraints work logically toward achievement of the agreed upon commitments by allowing the Service to focus on a relatively circumscribed number of listing decisions rather than expending scarce resources on defending listing determinations or addressing new court-ordered listing priorities. However, for as yet unidentified species unfortunate enough to become imperiled before 2017, the chances of gaining ESA protection become more remote than ever. Hopefully, other advocacy groups will be ready to step in on their behalf.

Perhaps most worrisome of all, however, are assumptions and caveats relating to agency funding levels and staffing. The parties expressly acknowledge that the Service’s ability to fulfill its commitments rests on the “assumption” that future funding of the listing program “will not be substantially less than the FY 2011 request level.” Guardian Settlement at ¶ 14; CBD Settlement at ¶ C2. A determination by the Service of insufficient funds to complete agreed upon actions triggers a right to seek modification of the CBD Settlement. CBD Settlement at ¶ C2. Similarly, the Guardian Settlement provides that the “Court may modify or terminate the Agreement, taking into consideration the relevant circumstances, including the assumptions” regarding funding levels and an assumption that the Service will retain “sufficient listing program staff” to carry out the commitments. Guardian Settlement at ¶¶ C14 15. Given the state of the economy, congressional hostility to environmental regulation generally, and congressional animosity to the ESA in particular, reduced resources for Service listings would seem to pose a considerable risk to the accomplishment of the agreed upon commitments.

Despite and in spite of these concerns, the Settlements represent a reason for cautious optimism. By 2016, there may be many hundreds more species boarding the ESA ark. Unfortunately, in view of all the threats to species (including global climate change) the ESA ark may simply be too small, the wait lists too long, and the political will too anemic to protect all the species deserving protection. See Jonathan Adler, Rebuilding the Ark: New Perspectives on Endangered Species Act Reform 23 (2011).

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