PLF sues over species that should be dropped from the ESA, or downlisted

News
Jun 7, 2013

Attorneys with Pacific Legal Foundation (PLF) have sued the federal government for ignoring PLF’s petition to “delist” or reclassify five species in Arizona, New Mexico, Oklahoma and Texas that are listed under the federal Endangered Species Act (ESA).

Representing farmers, ranchers, and other property owners, PLF submitted the petition in July 2012, asking the government to delist the gypsum wild-buckwheat, and downlist the black-capped vireo, Kuenzler hedgehog cactus, lesser long-nosed bat, and Tobusch fishhook cactus.

Last year, PLF, several Southwest agriculture organizations, and an Arizona rancher filed a petition with the U.S. Fish and Wildlife Service (Service) to reclassify the five under the ESA. According to PLF, the petition was entirely based on the Service’s own scientific recommendations—the Service issued status reviews for those species from 2005 to 2010 and concluded in each case that the species under review should either be removed from the endangered species list or reclassified.

For example, the Service’s review of the Kuenzler hedgehog cactus—a plant that is known to occur in New Mexico—noted that the species actually occupies a much broader range and occurs in several populations that were not known to exist at the time they listed the cactus under the ESA. Similarly, the Service determined that the lesser long-nosed bat no longer warranted an “endangered” listing, and the Service even recommended developing a special rule that would allow more livestock grazing on land in the bat’s range. The problem is the Service did not act on its recommendations and did not move to reclassify those species, according to PLF, even though the best available scientific information demonstrated that the listings were outdated.

The ESA dictates that the Service must respond to a petition to reclassify species within 90 days after receiving it. In its initial response, the Service simply needs to determine if the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” The Service should have issued its initial response to PLF’s petition last October. But the Service still has not responded to the petition, so PLF is asking a court to order the Service to respond.

The Service’s failure to reclassify species is of concern to local ranchers. Ranchers who enter into agreements with the government to graze cattle on public land may be required to abide by rules that make their operations less productive in order to protect habitat for an endangered species. Farmers might be required to forgo planting in certain areas that encompass part of a protected species’ range, or the government might limit the delivery of irrigation water. Such restrictions, however, are arbitrary if they are imposed for the purpose of protecting a species that does not qualify for protection under the ESA.

The lawsuit was filed in the U.S. District Court for the District of New Mexico. PLF attorneys represent the New Mexico Cattle Growers’ Association, Arizona rancher Jim Chilton, the New Mexico Farm & Livestock Bureau, the New Mexico Federal Lands Council, and the Texas Farm Bureau.

They seek an injunction requiring the federal government to issue a “90-day” finding responding to the July 2012 delist/downlist petition.

The gypsum wild-buckwheat is a plant found in Eddy County, NM. It is currently listed as threatened, but the Service recommended in 2007 that it should be delisted.

The black-capped vireo is a bird found in several Oklahoma counties and over 60 counties in Texas. It is listed as endangered. The Service recommended in 2007 that it should be downlisted.

The Kuenzler hedgehog cactus is a plant found in Chaves, Eddy, Lincoln and Otero counties, NM. It is listed as endangered, but the Service recommended in 2005 that it should be downlisted.

The lesser long-nosed bat is found in Cochise, Pima, Pinal and Santa Cruz counties, AZ, and Hidalgo County, NM. It is listed as endangered. The Service recommended in 2007 that it should be downlisted. The agency also suggested that a special rule should be promulgated under the ESA that would exempt livestock grazing from the ESA prohibition against “take” of the bat.

The Tobusch fishhook cactus is a plant found in Bandera, Edwards, Kerr, Kimble, Kinney, Real, Uvalde and Val Verde counties, TX. The Service reviewed the status of the species in 2010 and recommended that it be downlisted.

“It’s a serious matter when the federal government ignores its own scientific findings, and fails to delist or downlist species that no longer need ESA protection or are incorrectly classified,” said PLF attorney Daniel A. Himebaugh. “This isn’t an academic issue. Real harm is caused to real people. Ranchers who enter into agreements with the government to graze cattle on public land may be required to abide by restrictions that make their operations less productive in order to protect a species’ habitat. Farmers might be required to forgo planting in certain areas that encompass part of a protected species’ range, or the government might limit the delivery of irrigation water. Such damaging restrictions are, by definition, arbitrary and unnecessary if they are imposed for the purpose of protecting a species that does not qualify for protection under the ESA.”

The lawsuit filed is New Mexico Cattle Growers’ Association v. Jewell and requires a response within 90 days. — Traci Eatherton, WLJ Editor

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