In May 1992, the forerunner of what is now called the Center for Biological Diversity petitioned the federal government to put a tiny, reddish-brown owl on the endangered species list. The owl was already on the U.S. Fish and Wildlife Service's "candidate" list. Its presence on that list meant that the agency knew the species might be in trouble, but it hadn't gotten around to deciding whether it deserved listing as threatened or endangered.
Two years later, the service proposed to list the cactus ferruginous pygmy owl, but did not formally list it as threatened or endangered. Two years, and another Center lawsuit after that, the agency finally listed the owl - a listing that was followed by a huge fight over protecting the owl's habitat from Tucson's rapid development (HCN, 12/20/99: Bulldozers roll in Tucson).
It was not the last time the Center and others used petitions and lawsuits to protect a species. Petitions start the clock ticking for the Fish and Wildlife Service, which then has 24 months to decide whether a species will be protected as threatened or endangered. If the agency misses the deadline, environmentalists can sue again, forcing a decision. The Center alone has used the tactic 19 times to get species on the threatened or endangered list.
But the tactic may no longer work. The Fish and Wildlife agency announced last fall that it will no longer accept petitions seeking to move species off its candidates list and up to formal threatened or endangered status. Environmentalists fear that the hundreds of species now on the candidates list will languish there permanently, immune from being moved into protected status by lawsuits. Lawsuits can still be brought on behalf of species not on the candidates list, but once a species is on the candidates list, the agency would have sole discretion on how fast, or whether, it decides to protect it.
To Interior Secretary Bruce Babbitt, the move is necessary if the agency is to have any discretion. "What we are trying to do in a case of woefully inadequate resources is use them in areas needed most. If a candidate is on the (candidates) list, it will be moved up. It is getting attention." Babbitt calls the change an act of "triage."
"To call it triage presumes that someone is working quickly to do something," says Center for Biological Diversity Director Kieran Suckling, who is already back in court trying to get the ban on suing thrown out. If the ban sticks, he says, species will "get stuck in a bureaucratic limbo, insulated from citizen action."
The controversy over the service's slow pace in listing endangered species has raged for at least a decade. In 1990, a U.S. Interior Department Inspector General's report warned that the feds had not made timely progress toward listing endangered plants and animals. At the time, about 600 species sat on the candidate list, 200 of which were facing "imminent" extinction, according to the agency.
Environmental groups sued to speed up the process, and won settlements in the waning days of the Bush Administration in 1992, and again in 1995, setting deadlines for listing decisions on 850 species.
Babbitt told the Wall Street Journal in 1995 that he would not have signed the 1992 agreement if he had been in office at the time. The huge number of listings it required, he said, fueled a political backlash in Congress against the Endangered Species Act.
Critics say this is precisely the kind of political pressure that they want to fight. Tony Povilitis, a southeast Arizona biologist who petitioned to list the jaguar in 1992, says if he hadn't "waved legal sticks" on the big cat's behalf, the result would have been federal inaction. The agency finally listed the cat in 1997 under legal pressure from Povilitis and the Center for Biological Diversity, after it had sat in limbo for more than 20 years.
"Anytime you hear something like this rule, you have to ask yourself what is the motivation? Are they basically trying to get citizens off their backs?" says Povilitis.
Fish and Wildlife Service officials reply that petitions force them to drop top priority species to work on species that aren't in as much trouble.
Candidate species are not completely insulated from citizen input, adds Nancy Gloman, national chief of the agency's endangered and threatened species division. Every year, the service is required by law to review candidate species' status, and outside groups can sue over the merits of the service's decisions. If the service fails to conduct such a review, she says, a group can sue over that.
The author reports for the Arizona Daily Star in Tucson.
YOU CAN CONTACT...
- Kieran Suckling, Center for Biological Diversity, Box 710, Tucson, AZ 85702 (502/624-7893);
- Nancy Gloman, U.S. Fish and Wildlife Service, 4401 N. Fairfax Dr., Arlington, VA 72203 (703/358-2171).
Copyright © 2000 HCN and Tony Davis