“We're disappointed that they filed another large, multi-species petition. Fifty-three species is a large number, and the species are spread across the country.” – Gary Frazer, U.S. Fish and Wildlife Service Assistant Director for Endangered Species

The Center for Biological Diversity (CBD) recently petitioned the U.S. Fish & Wildlife Service (FWS) under the guise of protecting 53 new species across the United States – the largest petition ever filed focused on amphibians and reptiles. The petition comes on the heels of a 2011 mega-settlement between the Interior Department, the Center for Biological Diversity and WildEarth Guardians that covered 779 species in 85 lawsuits and legal actions. The settlement required FWS to take action on pending petitions for 757 species over the next seven years. In exchange, the two environmental groups agreed to limit lawsuits filed against the Agency so that efforts can be focused on trying to accomplish the terms of the agreement.

While the recent petition does not directly violate the terms of the settlement, it does divert money and resources away from species recovery and disregards the spirit of the settlement by adding to the Agency’s backlog of petitions. Time and again, CBD and other similar groups have undermined the goal of the ESA by litigating, obstructing, and frustrating the FWS while racking up hundreds of thousands of dollars in taxpayer-funded attorney fees that continue to feed their litigious strategies to the detriment of species and people.

Petitions for new species protection wobble balance in FWS settlement, agency says
Allison Winter, E&E reporter
Published: Tuesday, August 7, 2012

The Fish and Wildlife Service and environmentalists reached a landmark legal settlement last year meant as a truce in extensive court battles -- but agency officials think massive new requests by one group to protect more species now threaten to derail the agreement's delicate balance.

The Center for Biological Diversity, a frequent plaintiff against the service, recently petitioned the agency to protect 53 new species across the United States. It is the largest petition ever filed focusing on amphibians and reptiles, according to the center. Several prominent scientists, including E.O. Wilson and Thomas Lovejoy, joined the group to ask for urgent protection for frogs, snakes, toads, salamanders, turtles and lizards from habitat destruction, pollution, invasive species and climate change.

It is the group's first large petition since it signed a sweeping settlement with the service last year. The settlement created a five-year work plan for the service and limited lawsuits from two environmental groups that have hounded the federal government to protect more species and stick to deadlines set in the Endangered Species Act.

The new request does not directly violate the settlement, but Fish and Wildlife Service officials say it could distract from the important work they are trying to accomplish under the terms of the agreement.

"We're disappointed that they filed another large, multi-species petition. Fifty-three species is a large number, and the species are spread across the country," Gary Frazer, the Fish and Wildlife Service's assistant director for endangered species, said in an interview last week. "They have a right to do that; they did not give away the right to do that. But the service now has our priorities set through this settlement."

Biologists from the Center say their petition does not need to upset the balance of the agency's workload. FWS can still focus on the priority decisions set in the settlement, and at least get started addressing concerns about these species. And the settlement still gives the agency breathing room to address the more time- and resource-intensive aspects of species decisions later.

"Fish and Wildlife has repeatedly stated that they can make initial findings on petitions without it disrupting their workload," said Noah Greenwald, the center's endangered species director. "Consistent with the agreement, we expect them to make an initial finding on this petition and then have a longer period of time to conduct status reviews for these 53 highly imperiled amphibians and reptiles."

Under the terms of the settlement, finalized last September, the service will issue final listing decisions on hundreds of species over the next five years. In exchange, the Center for Biological Diversity and WildEarth Guardians agreed to limit their litigation.

But big new requests, like the center's recent petition, threaten that, according to the service.

"It's moving us in the mode of having to either focus on petitions because they have specific deadlines and not listing determinations or run the risk of having deadlines and facing deadline litigation," said Frazer. "We can't do everything. ... We'll have to see whether these stand up and whether the CBD is going to continue to try to add more and more to our plate. We are certainly going to do as much as we can do with the resources that we have available in any year, but we have limited resources available, and we committed most of those to completing the listing determinations [in the settlement.]"

Biologists at CBD counter that at-risk species should not have to wait for bureaucrats to catch up.

"From our point of view, there's the candidate backlog, which is lengthy ... then there's the biological backlog, too, and that contains a lot more species; some scientists estimate as many as a couple thousand," Greenwald said. "I don't know any argument for why if there's a species that's endangered, why you wouldn't want to protect that. Our goal is to see the species that need protection get protection."

The 2011 settlement grew out of years of legal battles with the two groups, which frequently file petitions for the service to protect new species. The service is legally obligated to respond to those requests under certain deadlines under the Endangered Species Act. When the agency failed to take action, environmentalists would take the government to court.

The Fish and Wildlife Service could not keep up, and agency officials say they were devoting too much of their time and resources to responding to deadlines, lawsuits and new requests. Since 2007, environmental groups have petitioned to list more than 1,000 species -- nearly as many as were listed in the previous 30 years, according to the Fish and Wildlife Service.

"We found ourselves in the first decade of this century being overwhelmed with the volume of new petitions. We have limited resources, and certainly the volume exceeded the capability that we had for deadlines," Frazer said. "The settlement was to sit down and restore a balanced approach and provide protection to species that need it, as opposed to simply chasing statutory deadlines."

Greenwald says it's unfair to blame his group's petitions for the backlog -- which goes back years before the group started making so many requests. Instead, he says bureaucratic inefficiency and political interference during the George W. Bush administration are more to blame.

Agency touts progress

The settlement's six-year work plan requires the agency to make final listing decisions on 251 species on the "candidate" list and initial findings on hundreds of other species. The candidate list -- often reviled by environmentalists -- serves as a waiting room for imperiled species; species go on it when they warrant protection but the service determines that other priorities preclude their listing.

The agency has completed at least 607 listing actions under the agreement -- many of them initial findings on whether a request for protection merits further inspection. It has proposed protection for 63 species and issued nine rules to protect critical habitat. By the end of the fiscal year, the agency is on track to issue findings or proposed listing for 99 more species, half of them species that have been waiting on the candidate list, according to Frazer.

"That is far more progress and actually providing protection to species that need it, making listing determinations for species that need it, than we've done in any year since the mid-1990s," he said.

As for the new requests for species protection, Frazer said the agency is committed to at least complete initial findings on whether it has substantial enough information for further consideration. But it is "not clear" how the agency could handle the workload to go through the rest of the listing process and still complete all the work for the settlement, Frazer said.

To add to the challenge for the service, the agency could also face a significant strain in its budget. Congress has not completed the spending measure for next year, but some House Republicans want to cut funding for endangered species programs by one-third.

The two environmental groups that signed off on the settlement did so with different stipulations. Wild Earth Guardians, which brokered its agreement first, agreed to file no more than 10 new petitions each year and to hold off on deadline-related lawsuits. The group did so with the hopes of helping the service address the "extinction crisis" by focusing on species the agency already knows need protection, according to Taylor Jones, endangered species advocate for Wild Earth Guardians.

After FWS settled with that group, lawyers from the Center for Biological Diversity said they should be involved, since many of the species at issue resulted from petitions from their group. A federal judge urged all three parties to come to an agreement.

Center leaders would not agree to the same terms, and their settlement places no limits on the number of petitions the group can make -- though it does limit the number of lawsuits they can file. There are also trade-offs for both groups if they sue the service. If the groups win lawsuits forcing more than three new species conservation actions in a year, the service can push out some of the deadlines for other ESA decisions it agreed to in the settlement.

Frazer said the agency had hoped the center would voluntarily keep its petition requests down and stick closer to the levels of the Wild Earth Guardians settlement, which he said are in line with the number of requests the agency was facing in the 1990s.

But biologists with the center think the service needs to streamline its decisionmaking process and find additional resources so it can address new listings on top of the settlement workload. The 450-page petition the group filed in July asks for protection for turtles, snakes, toads, frogs, lizards and salamanders in 45 states. Prior to the new request, the center had asked for protection for four other species since the settlement was filed.

"We think they could be doing a lot more. We are glad we have the settlement, and they are picking up the pace on that, but we are going to continue to push for getting more species protected than what is in the settlement," Greenwald said.