States, farmers, ranchers, and energy companies have sued the
U.S. Department of the Interior and its agency, the U.S. Fish and
Wildlife Service ("FWS"), for entering into and carrying
out the terms of settlement agreements reached with environmental
groups last year over listing decisions under the Endangered
Species Act ("ESA").
The lawsuit, filed in the Northern District of Oklahoma, claims
that the FWS has colluded with special interest groups to change
its rulemaking process without going through the legally required
channels. The plaintiffs' claims allege violations of the
Administrative Procedures Act ("APA"), the Endangered
Species Act, the FWS's own regulations, as well as the Due
Process clause of the Fifth Amendment to the U.S. Constitution.
Plaintiffs also say that the FWS has violated Article II of the
U.S. Constitution by ceding its congressionally delegated authority
to special interest groups.
The court-approved settlement agreements between the FWS and two
environmental groups, WildEarth Guardians and the Center for
Biological Diversity, respectively, bind the FWS to either drop
species from a list of over 250 candidates or propose a rule to
list them as threatened or endangered by September 30, 2015. The
FWS's candidate-species list includes several that have been
under consideration for many years, most with ranges in the
plaintiffs' states. The FWS's determination to list a
species as threatened or endangered can have major impacts on
development and impose significant costs. Plaintiffs say that the
settlement agreements inappropriately fast-track listing decisions
by removing the option of keeping the species on the candidate list
until the FWS is ready to make a decision.
Plaintiffs' main concern is that the FWS has eliminated one of
its statutory options when it considers whether to list a species
as threatened or endangered. The ESA lays out three options for the
FWS when a petitioner brings forward a candidate species: (i) not
warranted; (ii) warranted; and (iii) warranted but precluded. It is
the third option, which results in leaving the species on the
candidate list, that the settlement agreements remove.
Plaintiffs say the loss of "warranted but precluded"
status is problematic because: (i) omitting a statutory alternative
without the use of science-driven priorities is contrary to the
ESA; (ii) relying on a procedural timetable rather than substantive
statutory criteria violates the FWS's statutory obligations;
(iii) the FWS is violating its own guidelines that establish a
priority system for removing species from the candidate species
classification; and (iv) the FWS cannot adopt binding policies that
conflict with their own regulations outside the APA-mandated
process.
Plaintiffs also raise constitutional concerns. They say that
adopting a binding rule, like the settlement deadlines, without
public participation, deprives the public of their right to due
process under the Fifth Amendment. They are also troubled that the
FWS appears to have abdicated its responsibility for how it will
make ESA-listing determinations.
Finally, plaintiffs say that the FWS should have allowed more time
for the recently approved conservation plans to recover the at-risk
species. Over the last year, plaintiffs had agreed to participate
in several Candidate Conservation Agreements for candidate species
that were subject to the settlement agreements. States and private
industry have spent millions of dollars to implement these plans.
Plaintiffs say that but for the settlement agreements'
deadlines, the FWS would have allowed these conservation plans to
operate, retaining the "warranted but precluded" status
for the species, in order to gauge the prospects of recovery.
The FWS has not issued any public statements regarding the
lawsuit.
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