• Jennifer Heywood

Interior Cuts Deal to Clear Endangered Species Listing Backlog

This week the U.S. Department of the Interior’s Fish and Wildlife Service filed a proposed settlement agreement in In Re Endangered Species Act Section 4 Deadline Litigation, MDL Docket No. 2165 (D.D.C.). The settlement requires the Service, over a period of six years, to review and resolve the status of more than 250 species on the list of candidates for protection under the ESA. The Service will make final listing determinations for those candidate species, as well as for a number of species that have been petitioned for protection under the ESA. Species at issue include the greater sage grouse, Canada lynx, and Mexican wolf. Since 2007, a series of so-called “bio-blitzes”, initiated by environmental organizations seeking to list hundreds of species at once, marred the program in litigation and generated an enormous administrative backlog. In the last four years, the Service has been petitioned to list more than 1,230 species; nearly as many as were listed during the previous 30 years of administering the ESA. The deal addresses part of this backlog, but does not guarantee that the subject species will be listed as threatened or endangered. If the Service finds listing is appropriate, it will publish notice of its intent to list one or more species and receive public comments on the proposal. The Service also has promised to attempt concurrent critical habitat designations. However, the deal does not preclude other groups from filing suit, or even the settling plaintiff from suing over the Service’s final determinations. Thus, it remains to be seen whether the deal will, in fact, alleviate the problem at which it is directed, or merely defer inevitable litigation. Regardless, additional listings and critical habitat designations are likely on the way, impacting resource users and managers.

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