FISH & WILDLIFE SERVICE FAILS TO PERFORM
MANDATORY STATUS REVIEWS FOR NEARLY
200 SPECIES IN CALIFORNIA
PLF Announces Lawsuit to Compel Species Status Checks Required
Every Five Years under the Endangered Species Act
SACRAMENTO, CA; December 17, 2004: The federal government has failed to conduct status reviews mandated under the Endangered Species Act for nearly 200 of California’s listed species, according to a legal challenge announced today by Pacific Legal Foundation. In a letter to the U.S. Fish and Wildlife Service (FWS), PLF notified the agency that if it did not begin or schedule the status reviews within the next 60 days, PLF will sue to compel the agency to meet its statutory responsibility to review the status of listed species at least every five years.
The agency has a nondiscretionary duty to perform the status reviews under Section 4©(2) of the Endangered Species Act, 16 U.S.C. Section 1533©(2). After the review, the government must determine whether the listed species should have its status changed (i.e., either lowered from endangered to threatened or raised from threatened to endangered), or if the species should be removed from the list because protection is no longer needed.
However, according to PLF, FWS has failed to conduct the statutorily required status reviews for about two-thirds of the 298 species listed in the state. As a result, PLF says the government has no way of knowing if listed species require more or less protection, or if they have been recovered and can be removed from the endangered or threatened list.
"The Endangered Species Act should be protecting only the species that truly need protecting," said PLF principal attorney Rob Rivett. "The Fish and Wildlife Service has a mandatory duty to review the status of every listed species every five years, but it doesn’t do it."
"How does the public know if species protections are actually working if the government doesn’t conduct the review of the species’ status? We’re asking the agency to do what the Endangered Species Act requires it to do," Rivett said.
PLF argues that the continued listing of species that no longer need special protection means that burdensome land use restrictions are being unnecessarily imposed on California property owners. These restrictions are causing economic and bureaucratic burdens that are particularly devastating to the state’s agricultural industry.
"California’s economy is being held hostage by regulatory restrictions to protect species, yet many of those species may no longer need protecting," said Rivett.
Rivett said the status review requirement benefits species because the review may reveal that a species’ status should be changed from threatened to endangered, invoking greater protections. In addition, species that remain listed but no longer need protection absorb government resources and millions of taxpayer dollars that could otherwise be invested in the protection of species that truly need it.
"The government has a duty to ensure that taxpayer-provided resources are not being wasted on species that no longer need protection," Rivett said.
PLF is representing the California State Grange, the California Cattlemen’s Association, and the California Forestry Association. A copy of the 60-day notice of intent to sue, including a list of species in need of a five-year review and affected counties, is available at www.pacificlegal.org.
About Pacific Legal Foundation:
Pacific Legal Foundation is the nation’s oldest and largest public interest legal organization dedicated to defending private property rights. PLF is the national leader in the effort to reform the Endangered Species Act and raise awareness of the act’s impact on people. PLF’s headquarters are in Sacramento, California. More information on PLF can be found at www.pacificlegal.org.
# # #
Full Version: Fws Fails To Perform Esa Reviews
here's my suggestion...delist all of them...
That makes it simple!!
That makes it simple!!
Group seeks status review on 198 California endangered species
DON THOMPSON
Associated Press
SACRAMENTO - Nearly 300 rare creatures, from the Arroyo Southwestern toad to the White sedge, are considered threatened or in danger of extinction in California, yet there has been no recent review whether two-thirds of the plants and animals still merit protection.
Every five years, the U.S. Fish and Wildlife Service is required to consider the 298 species' status under the Endangered Species Act, but it says it's so tied up in competing lawsuits from environmental groups and opponents that most decisions now are driven by judges' orders.
To prod the service to act, a conservative legal group will notify it Friday that it will add a new lawsuit in 60 days unless the agency starts or schedules status reviews on all 198 listed species that have gone unchallenged for five years or more.
"The reason is to ensure that the act is really working," said Pacific Legal Foundation attorney Rob Rivett. The goal is supposed to be rescuing each species so that it no longer needs the special protections afforded by the 30-year-old law: "If you never review the species, you never know that. If they're trying to administer and enforce for species that don't need protection, that's a waste of money."
The suit would be the first of this scope, said Rivett, although environmental groups in Hawaii sued the service in the late 1990s to force critical habitat consideration for about 300 species there. California is second to Hawaii in the number of protected species.
In May, scientists including wildlife biologist Jane Goodall and environmental groups petitioned the Bush administration to list 225 plants and animals nationwide under the act.
Groups including the foundation have previously sued to force status reviews for individual species. The service must decide every five years if each species deserves to remain on the list, and if its status should be raised to endangered, lowered to threatened, or vice versa.
"The act is very, very clear" on what is required, Rivett said. "They're going to have to reach a formal agreement with us or we'll file a lawsuit."
Of the roughly 1,200 species listed nationally, none has ever been removed as a result of a status review - including recent reviews forced by the foundation of the Northern spotted owl and marbled murrelet, said Kieran Suckling, policy director of the Center for Biological Diversity. He predicted no species would be removed if the service reviews all 198 California species as well.
"What the Pacific Legal Foundation is doing is exploiting a loophole in the law to force the Fish and Wildlife Service to waste what limited resources it has (on) essentially useless studies," Suckling said.
A copy of the foundation's formal 60-day filing was provided to The Associated Press as it was sent by overnight courier to the service for delivery Friday.
A similar sequence is planned for early next year in Texas, where the service has failed to conduct reviews for about 50 species, Rivett said.
Alex Pitts, the service's regional spokeswoman, said the wildlife agency has spent its limited money on saving species instead of counting them. Another expensive lawsuit won't help, she said.
"We get limited resources," she said. "We try to put as much of that on the ground, to recovery activities, as possible ... to actually see gains for those species."
While the service hasn't conducted formal status reviews in many cases, she said, "we keep track of how they are doing" and make decisions appropriately.
Environmental groups criticized the foundation's move.
"It would be nice if Pacific Legal Foundation supported enough funding ... so they can do what they're required to do," said Bill Allayaud, the Sierra Club's state legislative director.
By concentrating on listing species without determining if the species has been helped, "they're only doing half the job," countered California Cattlemen's Association President Mark Nelson. "The success rate (of the Endangered Species Act) is not very good and I think it's time we take another look at it."
Nelson cited his own frustration with restrictions on how he can use property near Sacramento that was deemed potential habitat for the protected giant garter snakes when "the closest sighting was, like, 11 miles away."
The foundation is representing the Cattlemen's Association, the California State Grange, and the California Forestry Association in filing the notice.
DON THOMPSON
Associated Press
SACRAMENTO - Nearly 300 rare creatures, from the Arroyo Southwestern toad to the White sedge, are considered threatened or in danger of extinction in California, yet there has been no recent review whether two-thirds of the plants and animals still merit protection.
Every five years, the U.S. Fish and Wildlife Service is required to consider the 298 species' status under the Endangered Species Act, but it says it's so tied up in competing lawsuits from environmental groups and opponents that most decisions now are driven by judges' orders.
To prod the service to act, a conservative legal group will notify it Friday that it will add a new lawsuit in 60 days unless the agency starts or schedules status reviews on all 198 listed species that have gone unchallenged for five years or more.
"The reason is to ensure that the act is really working," said Pacific Legal Foundation attorney Rob Rivett. The goal is supposed to be rescuing each species so that it no longer needs the special protections afforded by the 30-year-old law: "If you never review the species, you never know that. If they're trying to administer and enforce for species that don't need protection, that's a waste of money."
The suit would be the first of this scope, said Rivett, although environmental groups in Hawaii sued the service in the late 1990s to force critical habitat consideration for about 300 species there. California is second to Hawaii in the number of protected species.
In May, scientists including wildlife biologist Jane Goodall and environmental groups petitioned the Bush administration to list 225 plants and animals nationwide under the act.
Groups including the foundation have previously sued to force status reviews for individual species. The service must decide every five years if each species deserves to remain on the list, and if its status should be raised to endangered, lowered to threatened, or vice versa.
"The act is very, very clear" on what is required, Rivett said. "They're going to have to reach a formal agreement with us or we'll file a lawsuit."
Of the roughly 1,200 species listed nationally, none has ever been removed as a result of a status review - including recent reviews forced by the foundation of the Northern spotted owl and marbled murrelet, said Kieran Suckling, policy director of the Center for Biological Diversity. He predicted no species would be removed if the service reviews all 198 California species as well.
"What the Pacific Legal Foundation is doing is exploiting a loophole in the law to force the Fish and Wildlife Service to waste what limited resources it has (on) essentially useless studies," Suckling said.
A copy of the foundation's formal 60-day filing was provided to The Associated Press as it was sent by overnight courier to the service for delivery Friday.
A similar sequence is planned for early next year in Texas, where the service has failed to conduct reviews for about 50 species, Rivett said.
Alex Pitts, the service's regional spokeswoman, said the wildlife agency has spent its limited money on saving species instead of counting them. Another expensive lawsuit won't help, she said.
"We get limited resources," she said. "We try to put as much of that on the ground, to recovery activities, as possible ... to actually see gains for those species."
While the service hasn't conducted formal status reviews in many cases, she said, "we keep track of how they are doing" and make decisions appropriately.
Environmental groups criticized the foundation's move.
"It would be nice if Pacific Legal Foundation supported enough funding ... so they can do what they're required to do," said Bill Allayaud, the Sierra Club's state legislative director.
By concentrating on listing species without determining if the species has been helped, "they're only doing half the job," countered California Cattlemen's Association President Mark Nelson. "The success rate (of the Endangered Species Act) is not very good and I think it's time we take another look at it."
Nelson cited his own frustration with restrictions on how he can use property near Sacramento that was deemed potential habitat for the protected giant garter snakes when "the closest sighting was, like, 11 miles away."
The foundation is representing the Cattlemen's Association, the California State Grange, and the California Forestry Association in filing the notice.
Milk vetch: The sand dunes enigma
By RUDY YNIGUEZ, Staff Writer
Sunday, December 19, 2004 1:16 PM PST
It could take several more years of studying before any conclusions can be reached about the condition of the Peirson's milk vetch, the plant that led to the temporary closure of about 48,000 acres of Imperial Sand Dunes in November 2000.
The plant is considered a threatened species and the areas were closed to off-highway vehicles to minimize impacts to the plant. This year's plant count found 4,529 milk vetch in the Buttercup area, 43,275 in the Gecko area and 28,627 in Glamis. By contrast, the North Algodones Wilderness Area, long closed to vehicles, had 2,024 plants.
"We're not convinced OHV is the main cause of the plant's presence or absence," said Lynette Elser, resources branch chief for the El Centro office of the U.S. Bureau of Land Management. "We believe it's more likely to be rainfall."
American Sand Association president Grant George said he's seen some of the raw count numbers.
"It's amazing what rainfall does," he said.
George said the most important number in the raw data is the number of plants damaged by off-road vehicles.
The data show a total number of milk vetch in the entire dunes as 286,374, with 731 damaged by OHVs. That equals .25 percent.
Although the numbers from this year's count are fairly high, BLM has not reached any conclusions about the plants and has not yet written the narration to accompany the numbers.
"We're actually trying not to reach conclusions on this year's study," Elser said.
She said the milk vetch, being a soft-stemmed plant, might be better off where vehicles break up the ground.
A count in 2003 shows there were 59,591 plants in the wilderness area and 115,267 in the Gecko area
Despite this year's numbers appearing to be high, there is disagreement over what they mean, if anything.
"We felt they were outlandishly high," said Daniel Patterson, a desert ecologist with Tucson-based Center for Biological Diversity. "Most of those plants die when it gets hot. We know less than 1 percent survive to perpetuate the species."
District 5 Supervisor Wally Leimgruber, whose district includes the sand dunes, said a number of studies show the plant is doing well
"The county is opposed to its listing as a threatened or endangered species," he said.
Patterson said the milk vetch is doing better as a result of the November 2000 closures and there would be a real threat to the plant if the areas were reopened.
"We believe the best management is to continue with things are they are, 50-50," he said, adding that "absolutely," those areas closed should remain closed.
Fifty-50 refers to half the dunes being closed and half being open. A map on the American Sand Association Web site disputes 50 percent of the area is open.
"You're not starting at 100 percent," said ASA's George, who disagrees with the closures. "You're starting at 50 percent; so it's only 25 percent that's open."
The closures resulted from an agreement between the BLM, several environmental groups that filed a lawsuit against BLM alleging it failed to consult with the U.S. Fish & Wildlife Service regarding potential impacts to endangered species from off-road vehicle use in the sand dunes, and several off-highway vehicle groups that had minimal input in the case. A decision by BLM to not litigate the issue led to the settlement.
The closed areas are expected to be opened eventually, however, according to BLM's Elser. She said once BLM meets the numerous requirements found in the court order or BLM signs the record of decision for the pending recreation area management plan update, the areas would be reopened.
"Our guess is probably within a year," she said, adding the time frame will depend on the level of public participation.
The signing of the record of decision must await challenges by environmentalists and off-roaders to the RAMP's biological opinion. As a result of the legal challenges, Elser said the biological opinion will likely be changed.
The biological opinion and critical habitat documents are developed in consultation between BLM and the U.S. Fish & Wildlife Service. Jane Hendron, spokeswoman for the service's Carlsbad office said the critical habitat designation only affects federal agencies. She said although 21,836 acres are critical habitat for the milk vetch, the land will remain open as long as the plant is not in jeopardy.
"Critical habitat does not force areas to be closed," she said.
The critical habitat was finalized in August and became effective in September.
Hendron said Fish & Wildlife is convinced the plant is impacted by OHV use and that the plant is no longer found in some areas used for OHV staging. She was asked if that means there must be a reduction in OHV activity in the critical habitat area.
"In our 2003 biological opinion we did not require any reductions," Hendron said, adding, because the biological opinion is being challenged, "it's kind of irrelevant."
The CBD's Patterson said the critical habitat ruling will probably be challenged in court.
"It's garbage. It's a total hack job," he said.
Initially, the critical habitat ruling was expected to include almost 50,000 acres, but was reduced because of the potential economic losses to the area, according to the Fish & Wildlife Service's "Final Economic Analysis of Critical Habitat Designation for the Peirson's Milk Vetch."
"The economic analysis estimates that the total present value of lost OHV opportunities due to this closure occurring between 2001 and 2004 is approximately $20.37 million," according to the critical habitat ruling published in the Federal Register on Aug. 4. "On an annual basis, these consumer surplus impacts associated with lost OHV opportunities are approximately $5.09 million per year during the closure period (2001 to 2004). ... The estimated regional economic impact of the current closure ranges from approximately $13 million to $26 million, and in the loss of up to 527 jobs. The loss in trips may also impact taxes by as much as $1.46 million in Imperial County, California and $260,000 in Yuma County, Arizona.
"Moreover, these two counties have a less diverse economic base than most others in the two states," the F&WS continued. "Thus, reduced (Imperial Sand Dunes Recreation Area) visitation that results in revenue, employment and tax losses may pose considerable burdens to local communities. ... The plant is listed as threatened, not endangered. A sizable portion of its habitat is designed wilderness, where OHV use and other mechanical transportation or development is prohibited by statute. There is accordingly no reason to believe that these exclusions would result in extinction of the species."
Meanwhile, the Sacramento-based Pacific Legal Foundation filed a notice of its intent to sue the federal government over the critical habitats set aside for 48 species in California, arguing that "the designations are not supported by the findings required for critical habitat and the economic analyses are either nonexistent or inadequate."
Two of those species are the Peirson's milk vetch and the peninsular bighorn sheep, both found in Imperial County.
>>Staff Writer Rudy Yniguez can be reached at ryniguez@ivpressonline.com and at 337-3440.
By RUDY YNIGUEZ, Staff Writer
Sunday, December 19, 2004 1:16 PM PST
It could take several more years of studying before any conclusions can be reached about the condition of the Peirson's milk vetch, the plant that led to the temporary closure of about 48,000 acres of Imperial Sand Dunes in November 2000.
The plant is considered a threatened species and the areas were closed to off-highway vehicles to minimize impacts to the plant. This year's plant count found 4,529 milk vetch in the Buttercup area, 43,275 in the Gecko area and 28,627 in Glamis. By contrast, the North Algodones Wilderness Area, long closed to vehicles, had 2,024 plants.
"We're not convinced OHV is the main cause of the plant's presence or absence," said Lynette Elser, resources branch chief for the El Centro office of the U.S. Bureau of Land Management. "We believe it's more likely to be rainfall."
American Sand Association president Grant George said he's seen some of the raw count numbers.
"It's amazing what rainfall does," he said.
George said the most important number in the raw data is the number of plants damaged by off-road vehicles.
The data show a total number of milk vetch in the entire dunes as 286,374, with 731 damaged by OHVs. That equals .25 percent.
Although the numbers from this year's count are fairly high, BLM has not reached any conclusions about the plants and has not yet written the narration to accompany the numbers.
"We're actually trying not to reach conclusions on this year's study," Elser said.
She said the milk vetch, being a soft-stemmed plant, might be better off where vehicles break up the ground.
A count in 2003 shows there were 59,591 plants in the wilderness area and 115,267 in the Gecko area
Despite this year's numbers appearing to be high, there is disagreement over what they mean, if anything.
"We felt they were outlandishly high," said Daniel Patterson, a desert ecologist with Tucson-based Center for Biological Diversity. "Most of those plants die when it gets hot. We know less than 1 percent survive to perpetuate the species."
District 5 Supervisor Wally Leimgruber, whose district includes the sand dunes, said a number of studies show the plant is doing well
"The county is opposed to its listing as a threatened or endangered species," he said.
Patterson said the milk vetch is doing better as a result of the November 2000 closures and there would be a real threat to the plant if the areas were reopened.
"We believe the best management is to continue with things are they are, 50-50," he said, adding that "absolutely," those areas closed should remain closed.
Fifty-50 refers to half the dunes being closed and half being open. A map on the American Sand Association Web site disputes 50 percent of the area is open.
"You're not starting at 100 percent," said ASA's George, who disagrees with the closures. "You're starting at 50 percent; so it's only 25 percent that's open."
The closures resulted from an agreement between the BLM, several environmental groups that filed a lawsuit against BLM alleging it failed to consult with the U.S. Fish & Wildlife Service regarding potential impacts to endangered species from off-road vehicle use in the sand dunes, and several off-highway vehicle groups that had minimal input in the case. A decision by BLM to not litigate the issue led to the settlement.
The closed areas are expected to be opened eventually, however, according to BLM's Elser. She said once BLM meets the numerous requirements found in the court order or BLM signs the record of decision for the pending recreation area management plan update, the areas would be reopened.
"Our guess is probably within a year," she said, adding the time frame will depend on the level of public participation.
The signing of the record of decision must await challenges by environmentalists and off-roaders to the RAMP's biological opinion. As a result of the legal challenges, Elser said the biological opinion will likely be changed.
The biological opinion and critical habitat documents are developed in consultation between BLM and the U.S. Fish & Wildlife Service. Jane Hendron, spokeswoman for the service's Carlsbad office said the critical habitat designation only affects federal agencies. She said although 21,836 acres are critical habitat for the milk vetch, the land will remain open as long as the plant is not in jeopardy.
"Critical habitat does not force areas to be closed," she said.
The critical habitat was finalized in August and became effective in September.
Hendron said Fish & Wildlife is convinced the plant is impacted by OHV use and that the plant is no longer found in some areas used for OHV staging. She was asked if that means there must be a reduction in OHV activity in the critical habitat area.
"In our 2003 biological opinion we did not require any reductions," Hendron said, adding, because the biological opinion is being challenged, "it's kind of irrelevant."
The CBD's Patterson said the critical habitat ruling will probably be challenged in court.
"It's garbage. It's a total hack job," he said.
Initially, the critical habitat ruling was expected to include almost 50,000 acres, but was reduced because of the potential economic losses to the area, according to the Fish & Wildlife Service's "Final Economic Analysis of Critical Habitat Designation for the Peirson's Milk Vetch."
"The economic analysis estimates that the total present value of lost OHV opportunities due to this closure occurring between 2001 and 2004 is approximately $20.37 million," according to the critical habitat ruling published in the Federal Register on Aug. 4. "On an annual basis, these consumer surplus impacts associated with lost OHV opportunities are approximately $5.09 million per year during the closure period (2001 to 2004). ... The estimated regional economic impact of the current closure ranges from approximately $13 million to $26 million, and in the loss of up to 527 jobs. The loss in trips may also impact taxes by as much as $1.46 million in Imperial County, California and $260,000 in Yuma County, Arizona.
"Moreover, these two counties have a less diverse economic base than most others in the two states," the F&WS continued. "Thus, reduced (Imperial Sand Dunes Recreation Area) visitation that results in revenue, employment and tax losses may pose considerable burdens to local communities. ... The plant is listed as threatened, not endangered. A sizable portion of its habitat is designed wilderness, where OHV use and other mechanical transportation or development is prohibited by statute. There is accordingly no reason to believe that these exclusions would result in extinction of the species."
Meanwhile, the Sacramento-based Pacific Legal Foundation filed a notice of its intent to sue the federal government over the critical habitats set aside for 48 species in California, arguing that "the designations are not supported by the findings required for critical habitat and the economic analyses are either nonexistent or inadequate."
Two of those species are the Peirson's milk vetch and the peninsular bighorn sheep, both found in Imperial County.
>>Staff Writer Rudy Yniguez can be reached at ryniguez@ivpressonline.com and at 337-3440.
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