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Since '01, Guarding Species Is Harder
Bush officials say they are struggling to cope with an onslaught of litigation, but internal documents and several court rulings have revealed steps the administration has taken to make it harder, and slower, to approve listings.
Fish and Wildlife Service Director Dale Hall said his agency, which decides on most proposed listings of endangered species and their critical habitat, has been hamstrung by a slew of lawsuits and has just begun to dig out. He told the House Appropriations interior subcommittee last month that his agency will make decisions about 71 species by Oct. 1 and an additional 21 species a year later.
"Lawsuits, starting in the early '90s, have really driven things," Hall said, adding that the administration has tried to keep species from declining to the point where they need to be listed. "I'm feeling pretty good we're back on track to do the job the way it's supposed to be done."
In court cases, however, a number of judges have rejected decisions made by Hall's agency and have criticized its slow pace. On March 5, a U.S. district judge in Phoenix ordered Interior to redesignate bald eagles in Arizona's Sonoran Desert as threatened after the agency delisted the entire species last summer.
Three weeks before Interior officials rejected a petition to keep the desert eagles listed, a scientific advisory panel it convened wrote that the population "appears to be less viable than populations in other parts of the country" because it had fewer than 50 nesting pairs. Survival usually requires 500 breeding pairs.
The Fish and Wildlife Service never released that report, along with internal agency documents showing "substantial" evidence that the Arizona eagles should be kept on the list: Both the report and the documents were unearthed under the Freedom of Information Act by the Center for Biological Diversity, an advocacy group.
In another case, Judge William Alsup of the U.S. District Court for the Northern District of California ruled in late January that Interior violated the law when it did not act on 55 endangered and threatened foreign species that the department had described as qualified to be listed. The department has listed six foreign species during Bush's term.
"If the Service were allowed to continue at its current rate, it is hard to imagine anytime in the near or distant future when these species will be entitled to listing," the judge wrote. "Such delay hardly qualifies as 'expeditious progress' and conflicts with the purpose of the ESA to provide 'prompt action' [if there is] substantial scientific evidence that the species is endangered or threatened."
At NatureServe, a private nonprofit that does independent scientific assessments that the government often uses in crafting conservation policy, Vice President and Chief Scientist Bruce Stein said the decline in listings has been "dramatic. . . . It shows a shift in both funding and policy priorities."
In one such shift, senior Interior officials revised a longstanding policy that rated the threat to various species based primarily on their populations within U.S. borders. They then argued that species such as the wolverine and the jaguar do not need protection because they also exist in Canada or Mexico.
In another policy reversal, Interior's solicitor declared in a memo dated March 16, 2007, that when officials consider whether a significant portion of a species' range is in peril, that "phrase refers to the range in which a species currently exists, not to the historical range of the species where it once existed." The memo added that the Interior secretary "has broad discretion" in defining what is "significant."
For a two-year period, Fish and Wildlife also said that if the agency identified a species as a candidate for the list, citizens could not file petitions for that species, effectively eliminating any legal deadlines. The result, said Kieran Suckling, head of the Center for Biological Diversity, was to create "endangered species purgatory." In 2003, U.S. District Judge Reggie B. Walton overturned the policy on the grounds that it allowed the agency to "avoid their mandatory, non-discretionary duties to issue findings" under the act.
In addition, the agency limited the information it used in ruling on the 90-day citizens' petitions that lead to most listings. In May 2005, Fish and Wildlife decreed that its files on proposed listings should include only evidence from the petitions and any information in agency records that could undercut, rather than support, a decision to list a species.
Unsigned notes handwritten on May 16, 2005, by an agency official, obtained under the Freedom of Information Act, attributed the policy to Douglas Krofta, who heads the Endangered Species Program's listing branch. The notes said employees "can use info from files that refutes petitions but not anything that supports, per Doug."
Hall said the agency abandoned that policy in late 2006, but he issued a memo in June 2006 that mirrors elements of it, stating, "The information within the Service's files is not to be used to augment a 'weak' petition."
As listings have slowed, lawsuits challenging the administration's practices have skyrocketed, according to the biodiversity center, which specializes in endangered-species issues. There have been 369 listing-related suits against Bush, compared with 184 against Clinton. "The Bush administration has effectively killed the listing program," said Suckling, whose group's petitions and suits have driven 92 percent of the listings under Bush.
The Justice Department would not release figures on how the government has fared defending endangered species suits or how much it has cost taxpayers. Officials acknowledge they have not done well in the courts: Hall said he is frustrated that judges demand a higher burden of scientific proof to deny a listing or to take a species off the list than to list a species.
Since 2001, Jay Tutchton, general counsel for WildEarth Guardians, has filed 25 suits seeking listings and critical habitat designations for 45 species for several clients. He has won every time.