Settlement Announced in Endangered Species Litigation

June 2011Newsletters In the Zone

The United States Fish and Wildlife Service (FWS) announced a settlement agreement with the Wild Earth Guardians over the agency’s implementation of the Endangered Species Act (ESA) and its related listing program. However, the implications for landowners and local government may prove problematic.

In the past four years, the Wild Earth Guardians and another environmental advocacy group have filed petitions seeking to list more than 1,000 additional species as endangered. By way of comparison, over the course of its 37-year existence, FWS has only listed approximately 1,300 species in total, receiving only about 20 new petitions a year prior to the recent blitz. Failure to act in a timely fashion on many of the petitions has produced subsequent legal battles. After numerous lawsuits were filed with respect to these petitions, FWS initiated the consolidation and transfer of pending lawsuits from a number of different district courts to the U.S. District Court for the District of Columbia.

On May 10, 2011, this onslaught of litigation ultimately resulted in a settlement agreement between FWS and Wild Earth Guardians, essentially calling for a “cease-fire.”

Passed in 1973, the ESA provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. The law ensures various activities do not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat of such species. However, the law cannot protect a species unless it is formally listed as “endangered” or “threatened.” The FWS maintains a list of endangered species as well as a candidate list of those species awaiting a final determination.

In its settlement agreement, FWS agreed to either protect all the species on the candidate list by 2016 or determine such protection is not warranted. It will also make listing decisions on a number of species involved in the recent litigation. In return, Wild Earth Guardians agreed not to sue over delays in processing petitions until 2017 and to limit new petitions to 10 species a year until that time.

FWS’s work plan proposes the agency systematically, over a period of six years, review and address the needs of more than 250 species now on the list of candidates. The FWS has laid out a schedule for making listing determinations for species that have been identified as candidates for listing, as well as for a number of species that have been petitioned for protection under the ESA. If the FWS determines that listing is warranted for a species, it will advertise the proposal and allow the public to review and comment before making a final determination.

The result of the settlement agreement and the subsequent determination of candidate species is the likely considerable expansion of protected plants and animals. The candidate list includes several species in Pennsylvania, New Jersey and Delaware. If added to the endangered species list, these new species could adversely impact a landowner’s ability to develop his or her property.

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].

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