An End to the Listing Wars?


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20141110 An End to Listing Wars

Malka Pattison: Our topic today is the Endangered Species Act. It was passed overwhelmingly in 1973 and signed by President Nixon. It hasn't been smooth sailing since, but our panel today is going to discuss one component of what makes it a bit bumpy, the listing process.

Our panelists ‑‑ Ben Jesup, attorney advisor in Interior Department Solicitor's Office, Gina Shultz, Deputy Assistant Director for Ecological Services at the US Fish and Wildlife Service, and Michael Senatore, Vice President, Conservation Law at the Defenders of Wildlife.

Ben: OK. Thanks, Malka. Welcome all today. Thank you for joining us. I will try not to stand too much in front of my colleagues, but it's a small room. "No. More forward. OK. I'm standing in front of my colleagues."

Ben: OK. There we go. Thank you all for coming. What we're going to do is I'm going to provide a little bit of background. I'm going to talk very briefly about the Endangered Species Act, and the history of the listing program, and what led us to the multidistrict litigation settlements ‑‑ that's the main topic for us ‑‑ and what those settlements require.

Gina is going to talk about how the Fish and Wildlife Service has been implementing the settlements and what they have meant for the Fish and Wildlife Service as well as a little look at what the future holds for the Section 4 program of the Endangered Species Act.

Then Mike is going to provide us with an outsiders' view. Defenders of Wildlife was not one of the parties to the multidistrict litigation, but they're keenly interested in implementation of the ESA, including Section 4, the listing program of the ESA.

With no further ado, why don't we get started? I guess I should have a clicker. OK.

First, I want to put in a plug, for me. This panel essentially came out of a law review article that I did. I did also a short update for an ABA newsletter about the multidistrict litigation, which I had the opportunity to participate in. There's a lot more detail on the history of Section 4, and the listing wars, and the multidistrict litigation settlements in those article. They're here in the PowerPoint in the citations if you want to take a look at them.

I tried to make my article a little bit less dry than the typical law review article. Of course, that's setting a pretty low standard, but hopefully I sailed well over it.

The multidistrict litigation settlements have generated a lot of heat, but we're going to try to provide a little bit of light to go along with the heat that we've had.

A little bit of history about listing. The ESA is a very powerful conservation statute, like it or not. Listing is the key to that power. It's when an imperiled species gets listed that the regulatory machinery of the ESA takes effect. The key to listing is Section 4 of the Endangered Species Act.

The main thing I want to leave you with here is that listing is hard. The process is hard. The Fish and Wildlife Service has to do a comprehensive review of the status of this species, and the threats that it faces, to obtain the best available science to make that determination. It requires the somewhat cumbersome federal rule‑making process ‑‑ proposed regulation, public notice and comment, often a public hearing, and then a final rule. That takes a lot of time and a lot of resources to accomplish.

There are lots of statutory deadlines built into the ESA. Those deadlines are judicially enforceable. The ESA has a citizen supervision that allows interested parties to file a lawsuit if the deadlines aren't met, to get a judge to enforce those deadlines.

Another important point is the FWS, the Fish and Wildlife Service, does not control its own workload. There's a petition process built into Section 4 of the ESA. Interested parties can petition the Fish and Wildlife Service to list species. Add them to the endangered species list. That petition process also has associated deadlines. There's one important exception that plays into the whole MDL background, which is the so called "warranted but precluded" finding.

When the Fish and Wildlife Service does a status review on one of these petitioned species, it can determine that although the species warrants listing, that immediate promulgation of the rule, going through that rule‑making process, is precluded by higher priorities. They don't have the resources right now to start that process. In that case, they put the species on a candidate list.

A candidate list is basically like a waiting room for the endangered species list. But it doesn't come with the various regulatory protections that a listed species has. It's more of an informational thing. The species is on a candidate list. The Service can only make those determinations, the "warranted but precluded" determination, if they can demonstrate that they're making expeditious progress in listing and delisting species as appropriate.

The ESA does not provide a deadline for making a proposed rule. Something can be on the candidate list for a long period of time. There's not an easy action forcing thing for private litigants to use to get the species off the candidate list and into a proposed and then perhaps a final listing rule. That is the one safety valve to the Service's problem of having not complete control over its workload.

Over the history of the ESA, now over 40 years old, the Fish and Wildlife Service has always struggled keeping up with a backlog of listing determinations it needs to make under Section 4. Its budgets have been inadequate to address all the species that are partitioned or would appear to otherwise meet the definitions of a threatened species or an endangered species.

Things got a lot worse almost 20 years ago in 1995 when Congress imposed a moratorium on final listing decisions and also slashed the Service's budget for listing in half. Even in 1996 when the moratorium was lifted, it took many years for the budget to get back up to where it was before 1995.

In that entire period from 1996 through to 2010, it was a history of just tons and tons of deadline litigation because of that citizen supervision that we talked about the Service's inability to keep up with the workload. That's something that we sometimes refer to as the listing wars and I spent much of my career working on them.

As a result of all the litigation, Fish and Wildlife Service in the late 90s and 2000s effectively lost control of its ability to prioritize its own Section 4 program. Instead of being able to pick which actions it followed lead to the best and quickest conservation measures for imperiled species, the Service was sort of ping‑ponging from one court order or settlement agreement to another, spending its time working on whatever was required by these court orders.

This had the effect of essentially shrinking the pie even further because all the litigation support that's required to defend those cases, as well as the rejiggering of the Service's work plan of what to work on next, that would get reshuffled with new court orders and new settlement agreements meant that the Service was less efficient in the listing program. They could get less amount of work done with the same amount of money. That compounded the problem of having a big backlog.

By 2010, we had 251 species on the candidate list. That's 251 species that the Service has determined at least preliminarily warrant listing. They meet the definition of threatened or endangered, but they haven't been able to go through the rule making process to get them protected by the act.

To make things worse, towards the end of this period, we saw a real spike in petitions filed by environmental groups. In particular, WildEarth Guardians and the Center for Biological Diversity started filing huge multispecies petitions involving hundreds of species in some circumstances. The petition workload was going through the roof.

Again, all those petitions responses have deadlines associated with them and the possibility of more deadline litigation, which made it harder and harder for the Service to get species off the candidate list and propose them for listing and actually then protect them.

The one safety valve we did have in terms of trying to avoid litigation that warranted but precluded finding, even that at that point in the late 2000 and was under attack by the environmental groups challenging the question about whether or not we were making expeditious progress on listing and delisting. The safety valve at that point might have become ineffective.

That's the background for how we ended up in the place we were when the settlement discussion started. In 2010, WildEarth Guardians and the Center for Biological Diversity had 20 cases, 20 deadline cases, in seven districts throughout the country involving 121 species. These were all deadline cases, not merits challenges to decisions the Official Wildlife Service was making, but challenges to our failure to make decisions in the first instance.

The Department of Justice took advantage of a procedural mechanism of centralizing all those cases through multidistrict litigation. Without going through the details of that, that allowed all those cases to be put in front of one judge here in the District of Columbia, Judge Sullivan.

Judge Sullivan promptly ordered the parties to enter into the court mediation program, and that started settlement discussions. Because of the court rules, and also because we don't have time, I can't describe what happened in those settlement discussions, but I can say that, after many, many months of grueling discussions, we entered into two separate settlement agreements the Official Wildlife Service did with Wildlife Guardians in one and the Center for Biological Diversity in the other.

The substance of the settlement agreements. They did address all of the overdue deadlines that were the subject matter of the original cases, 121 species, the ones that had already been dealt with by that point. But the reason why the settlement agreement is actually much more interesting is that it wasn't limited to that. It was a much more comprehensive effort at dealing with the long‑term problem of the listing wars, the litigation that we were having over deadlines and the Service's inability to focus on getting species off of the candidate list. So, the settlement documents required the Official Wildlife Service to address all 251 species that were on the candidate list as of November of 2010.

In effect, it required all those species to get final determinations within a five or six‑year period, one way or another, up or down. The Service had to eventually stop making warranted but precluded findings for those species. Now, there were more species that were added to the candidate list after that. They are not covered by this settlement agreement.

It also included some dates for specific actions, such as greater sage‑grouse, we had to make a not‑warranted finding or propose to list by the end of fiscal year 2015, which is next September.

There were a number of other species that were included in those 251 that are of broad interest to lots of folks. They include species such as the dunes sagebrush lizard, the lesser prairie chicken, the Gunnison sage‑grouse, and the greater sage‑grouse, as I mentioned, in addition to lots of smaller endemic species that maybe people haven't heard of and won't create as much controversy.

It's important to note that the Fish and Wildlife Service retain full discretion as the substance of what decisions in made. The settlement agreements were all about the timing of making decisions, but not the substance. The Fish and Wildlife Service can still decide that a species is warranted or not warranted, and the settlement agreements don't speak to that at all. Of course, if anyone disagrees with those determinations, they can file a lawsuit to challenge that after the decision is made.

That's what the Fish and Wildlife Service agree to. The two environmental groups, they agree to a variety of limitations on the filing of new deadline lawsuits as well as new petitions, varied from between the two parties. They also agree to dismiss the litigation they had pending involving warranted but precluded findings for all the species on the candidate list.

It's important to note that these provisions only apply to those two parties. There are lots of other parties out there that have the ability to petition and to file lawsuits against the Fish and Wildlife Service. However, these two organizations were the ones that had provided the lion's share of the litigation in the past as well as the petitions.

It's fair to hope, I think, that other organizations will at least wait and see how this was going before trying to step into the shoes of those two organizations. In addition, the fact that we had all this memorialized in a settlement agreement gave the Fish and Wildlife Service and Department of Justice potentially a better argument to defend against future lawsuits by other parties by essentially arguing that the Fish and Wildlife Service's dance card was full. There was no additional ability to make further findings in the short term.

All right. We're almost done with the introductory stuff here, and then I'll turn it over to Gina. The last thing I want to mention is why was this settlement possible after 15 years of pretty difficult litigation.

As any settlement, the parties are thinking about certainty and about the possibility of getting a better outcome than they can get through litigation. When you take litigation to the final step of the court order, you don't know what you're going to get. This allowed the parties to have some more certainty and, hopefully, to get something that they could live with.

In addition, in this particular circumstance, the parties actually had some parallel interest, they had different perspectives, but, ultimately, both the Fish and Wildlife Service and the environmental organizations who they were negotiating with wanted the ESA to be implemented. They wanted species to get off the candidate list as appropriate and get protections of the act. It was the previous history that was preventing that from happening. This was an opportunity to see if we could take a step back and focus on the goal of all of the parties in this circumstance.

Also, to varying degrees, the parties recognized that the previous litigation paradigm was making the process less efficient and making us get less work done. As I said before, the Fish and Wildlife Service, when it's not spending lots of time on litigation support and rejiggering its list of things to do, it can be more efficient and spend more of its waking hours getting the work of the ESA done.

With that, let me hand it over to Gina to talk about the Fish and Wildlife Service's perspective.

Gina Shultz: Thanks, Ben. As Ben said, I'm going to talk about what the Fish and Wildlife Service's perspective has been with implementing the settlement agreement for the multidistrict litigation. As Ben was talking about, it allowed us to actually implement our listing work plan.

We had a plan for doing our listing worked. We had a goal of trying to get the candidates off the list. Many of the candidates that were on the 2010 candidate list had been on there for decades. When the litigation came forward, we were in the process of developing a work plan for those candidates. That's been one of the benefits that we could, instead of continuing to go to different courts and have our priorities set month after month based on litigation, that we could follow through with the listing work plan.

It required us to streamline our listing processes. We knew that the commitments we were making were going to take a lot of resources and we would have to find more efficiencies based on the budget that we had to get through. Based on what our average cost to do a listing, we knew that we would have to make efficiencies to make it work.

Then, third thing I'm going to talk a little bit about is what was maybe an unintended consequence and what I think has been the greatest part of having that certainty, is the candidate conservation that has come out of the listing work plan. First, I'll quickly go through.

We had benchmarks. They weren't for each year that we would have goals to meet. They're not enforceable, but to demonstrate that we're on track with the listing work. We've met all of our benchmarks or exceeded them.

To date, we have completed 166 listing determinations. Of the 251, we've completed 166 of those. A majority of them have been added to the list of threatened and endangered species. But we have, I think it was over 30 not‑warranted findings, in part because of new information. But when I get to that last bullet on the candidate conservation, that explains a lot of it.

Ben was talking about the listing wars starting in the mid 1990s. The gray is listing actions. That's each per fiscal year, the number of listing actions. The yellow is the number of critical habit designations. Then the light blue is petition findings.

What this shows you is, after the listing moratorium, all of our listing resources went to just make listing decisions. As a result, we had a new wave of litigation, which was for failure to designating critical habitat or challenging our prudency determinations. That litigation swung all of our listing money went into designating critical habitat.

As we started to reach balance and start doing listing in critical habitat and making petition findings, then you can see in the late 2008, '09, '10, we started getting these mega‑petitions. Prior to that period, we would receive petitions for about 20 species per year. Suddenly, we were receiving single petitions that had hundreds of species.

Then, 2012 is the one where the blue gets small. That blue was making 90‑day findings on the last of the mega‑petitions from the two plaintiffs in that MDL case.

Since then, though, we've pretty much kept the listing with the critical habitat in track. We feel like we're almost balanced. The one part that we're going to have to add in post‑MDL is bringing in that light blue, and hopefully we won't get mega‑petitions that swing us out. That's a graphic of what Ben had described creating the problem.

As I mentioned, we needed to find efficiencies. Again, before we went into the litigation, we knew that we wanted to get through the candidate list, the backlog that had developed, so we started a review of our own program before we had gone into.

We had already identified, before we entered into the settlement agreements, areas where we might be able to improve our processes and be able to list or make listing decisions with fewer resources than we had in the past.

One of the things we've done is we've developed a team‑based approach. It has representatives. The biological experts usually are in our field offices. It has regional folks for their perspectives, and people in headquarters. It usually includes solicitors as well. That's the team, but at different points depending along the way of a decision, folks may have a greater or lesser role. Obviously, when you're compiling the biology, the biological experts are the ones that are more active. There are check‑in times with the other folks.

We have clearly defined roles and responsibilities. We've developed a project plan for each listing action ‑‑ who is going to be on the team, what people's roles and responsibilities are in that, and then streamline. We've significantly streamlined on the Fish and Wildlife Service side, our review. We used to spend as much time reviewing packages, a listing action, as we did in developing it to begin with. That's completely flipped.

We've also streamlined the federal register documents so that we can save, and we have saved, significant costs in printing as a result of that. I think we've also made for much clearer decisions. A lot of the biology stuff, which biologists we love, we put that in a separate report if it's not specifically germane to the decision that we're making on the listing or critical habitat.

This has also allowed folks in headquarters, because of the streamlining, our listing staff are spending most of their time, or a good deal, updating policies and regulations and guidance, things that, again, came out of that review that will help people in the field, in the regions and even all of us to better understand and interpret the ESA and the regulations.

The third piece is the candidate conservation. Before I go into some of the incredible examples we've had that I called an unintended but wonderful consequence, I do want to put a shout out. Despite our streamlining, it really has put a lot of pressure on the Fish and Wildlife Service listing staff. As we created efficiencies, new processes came in through OMB and other things.

We'd take two steps forward and a step back, and three steps forward and a couple steps back. It has put a lot of pressure on folks, but they're doing a great job. This is the part that makes it all worthwhile, when you look at what has happened, when people finally realize that we are going to be making a decision on Arctic Grayling, Graham's and White River Penstemons.

Some of these species had been on the list, as I said, for decades, and nobody was really paying attention to them, even though we produce every year, at candidate notes to review, we look at these species again, what's happening to them over the last year, and decide whether or not listing is still warranted but precluded by higher priorities, which had been litigation, whatever we were committed to doing at court prior to the MDL, or whether there was some new information that we would remove them from the candidate list.

Here are a few examples. The Arctic Grayling is a fish in Montana. Private landowners in Big Hole and Centennial Valleys came together in 2006 and developed a candidate conservation agreement with assurances. NRCS brought some resources to the area as well. Over 250 projects have been implemented under the agreement. The habitat improved, the population has doubled, and we withdrew that species from the candidate list.

The Graham's and White River Penstemons, that's a case where there had been a conservation agreement in place in 2007. We proposed to list it in 2013, because, while it was a good effort, it did not eliminate all of the threats. We felt that there still was the potential for this species to become endangered in the foreseeable future, so we proposed it as a threatened species.

The Bureau of Land Management and the state and local governments came together. The parties to the 2007 agreement looked at what we identified as those outstanding threats. They shored them up through a new agreement and eliminated the threats, and so we withdrew that proposal for those species.

Coral Pink Sand Dunes Tiger Beetle, that's another one where BLM stepped up. There was an existing conservation agreement with the state. Again, not all of the threats were addressed. They were able to modify that agreement to shore up those threats, eliminating them. Again, that's one where we proposed to list it first, and then we withdrew it based on the new conservation agreement.

Lesser Prairie‑Chicken is an absolute unprecedented effort by five states. Texas, New Mexico, Oklahoma, Kansas and Colorado all got together and agreed on a conservation strategy for that species. When you think of those five states ever getting together and agreeing on anything, that's amazing in and of itself.

In that particular case, that agreement alone did not address all of the threats. There still was habitat fragmentation and drought issues for the prairie‑chicken, so we proposed and finalized listing it as a threatened species. However, both that five state range‑wide plan as well as the Lesser Prairie‑Chicken Conservation initiative that NRCS had developed, great conservation.

We were able to do a special rule under Section 4(d) of the Endangered Species Act and tailor the regulations that protect a threatened species, and basically exempted any take that's associated with implementing either of those conservation strategies, the NRCS' Lesser Prairie‑Chicken initiative or the five state range plan. The NRCS is agriculture solely, but the five state plan addresses oil and gas and certain agriculture as well.

The lease chub is another example...I could just go on and on. The story is, once we had certain dates, parties came together and they really have worked diligently.

Greater sage grasses and, still, ongoing efforts with Feds, the 11 states that cover the range and NRCS as well as the BLM and Forest Service, which have the majority of the habitat, Fish and Wildlife Service.

A good thing that has been come out has been the certainty of the dates and people, knowing that they needed to work towards conservation. One thing that we at Fish and Wildlife are already doing is, we're developing our next listing work plan for the period of time when we finish with the species, that we're committed to do, those 251 candidates from the 2010 candidate list.

We have outstanding petition findings for over 500 species, outstanding, 12‑month findings. We're developing our plan now, on when we will do those over the next five years, so that we can share that. Our listing plan for MDL is up on the web, and we will put this up on the web.

Hopefully, it will encourage folks to gather more information and start looking at what the threats are, and address them, so that many of those won't need listing.

Ben: Michael.

Michael Senatore: Before I get into the slides, let me first of all start, give a plug for a colleague of mine, Jay Tutchton, who was intimately involved in helping negotiate the MDL. He was an attorney at WildEarth Guardians at the time.

Much of what I'm going to talk about is from a paper that was just published in the Annual Law Journal, which comes out of Lewis and Clark Law School, "Getting Species On Board the Ark, One Lawsuit at a Time ‑‑ How the Failure to List Deserving Species has Undercut the Effectiveness of the Endangered Species Act."

It's got a lot of good background on the history of the Act. They can't get into the details of the negotiations, but it's got a really good perspective from Plaintiff side, in terms of the thinking that went into those agreements.

The other thing I wanted to mention, I'm with Defenders of Wildlife. I've been with the organization for about 15 years. I worked with Center for Biological Diversity for two years. Defenders, historically, has not been a group that heavily petitions to list species. We've done petitions in the past, including Canada wolverine.

We have not been heavily engaged in the listing, at least the petitioning side of the process. What I will say is, I think this agreement is two agreements, and they actually have precedent, which I'll touch on.

From the standpoint of the interests of the environmentalists, and also from the interests of the Fish and Wildlife Service, from my perspective, they were both great agreements. I agree with the sentiment that was expressed in terms of the Service having to deal with petitions, litigation one at a time. I never thought it was the most efficient way to get through this petitioning process.

So, I think these agreements, even though they have plenty of detractors...From both sides, both the groups that are petitioning as well as from the Service, were two solid agreements. I think it's the way this program should operate.

A little context, this from the standpoint of why I do this work, and I'm sure the reason everybody at the Fish and Wildlife Service does this work, and this is certainly what drives the groups who are submitting these petitions. Scientists have said that we are in a six‑grade extinction. The average extinction rate measured over geological time, they've estimated we're 50 to 100 times higher than that.

This great extinction, unlike the prior five, is being driven by humans. You throw climate change into the mix, which, relatively speaking, is still a new issue. Certainly in terms of the Endangered Species Act we're trying to work through. Estimates are three‑fifths of all species on Earth could be subject to extinction as a result of climate change alone.

The Endangered Species Act is our federal law intended to address this extinction threat. There is some language up here from the Supreme Court's seminal decision, TVA versus Hill. Notwithstanding the threat that we face, the Endangered Species Act, if you can actually get species on the list, in terms of one of its goals, if not the goal, keeping species from going extinct, it's been incredibly successful.

A lot of the criticism logged at the Act, that we don't recover species fast enough. Once species get on the list, they stay there, they don't come off. In terms of the primary goal, which is to stop species from going extinct, it's been incredibly successful.

The Inspector General, I think this is from the 1990 Interior Inspector General's report, found that, and this came out in 1990. We've had roughly 227 species that would have gone extinct, in the past, had they not been listed under the Endangered Species Act, and approximately 42 species, one extinct, waiting to be listed.

There are two take‑homes from that. One is, the SA does work, but in order for it to work, you have to get species listed. That is the first step in making the statute work.

When the Act was first passed in 1973, there were no enforceable deadlines in terms of the ability of citizens to petition and then enforce action on those deadlines.

I believe it was the Smithsonian Institute, in the mid‑70s, sent in what was probably the mother of all listing petitions, asking the Service to list a little over 3,000 species. These were species that scientists had decided probably meet the definition of an endangered species.

What happened, over the first roughly nine to ten years of the act, Congress decided that the Service was not making sufficient progress to add species to the list. So, what they did in 1982, the Act was amended. They added deadlines, they added the ability of citizens to actually go into court to enforce those deadlines on petitions.

When a petition comes in, there are a number of deadlines that kick in, in terms of making an initial finding on the petition, subsequent finding, and eventually deadlines for proposed listings and then final rules.

This is just some language from the Senate report to those amendments. Here, some additional report language, which talks about, at the time, why Congress felt it was important to add these deadlines, these enforceable deadlines.

It was pretty clear at the time, there was a desire to curb the discretion of the agency, in terms of deciding when to list, which species should be listed. Hence, you have the deadlines in the Statute and the ability to go into court to enforce those deadlines.

This 1990 Interior IG's report was in many ways was a watershed moment from the standpoint of the environmental community. This report came out, it addressed the concern of the lack of expeditious progress being made in getting species listed under the Endangered Species Act.

Several environmental groups looked at this and this really, I think, is what kicked off the increase you saw in environmental groups, citizens, submitting petitions to the US Fish and Wildlife Services, as well as National Marians Fishery Service to press the agency into listing species.

This is just more language taken from the report. Act was amended in '82. Initially didn't see much progress. What changed in the early '90s, you started seeing an increase in petitions coming in. There were three lawsuits that, alone, were responsible for about...this was as of about 2000, approximately 80 percent of all listings at the time. Oh, I'm sorry, that's a later stat.

You had three lawsuits that were filed. All dealt with multiple species, to try to force action on these listings. The Fund for Animals lawsuit, which is really the forerunner to the MDL settlement, was a case that was brought in response to very similar circumstances. The Service's candidate list had grown exceedingly large.

There was concern that simply petitioning or going to court to force action on individual species was not going to make a dent on that backlog. What happened, a case was filed and a settlement was reached, that put in place a schedule for the Service to work its way through that existing backlog.

As Ben said, it had similar terms to the MDL settlement, in that what it really did is, force action on getting the Service to make up or down decisions. The Service retained discretion in terms of deciding whether or not a species warranted listing.

It even allowed the Service. Defenders weren't part of the lawsuit. It even allowed the Service to swap in a species. If there was a species that was on the list, and the Service could make the case that another species that just came in warranted greater protection, they were actually able to swap those decisions out.

That case alone addressed approximately 400 species that are currently protected today. This last figure I got from my colleagues at Center for Biological Diversity. They're in the process of doing more up‑to‑date analysis of the impact of citizen petitions, litigation. According to their estimate, approximately 80 percent of all currently listed species were listed as a result of either petitions and/or litigation.

In conclusion, I think if, notwithstanding the pressure it puts on the Fish and Wildlife Service, the fact that the agency doesn't have anywhere close to the funding necessary to actually deal with this issue. Scientists figure that there are probably anywhere from three to four thousand additional species, just in the US, that are probably going to need to be listed.

If your goal is getting the Act to actually work, if your goal is to actually prevent species from going extinct, I think the history of the Act shows, the amendments that were put in place in '82, the ability of citizens to get involved in this process and go to court if necessary to enforce those deadlines, actually work.

They don't work if you're not interested in getting species into this program. They don't work if you're interested in getting...those of us who are concerned with conserving species and the Agency biologists, together, to find a way to make this program work effectively. The unfortunate thing is, I think we're probably going to see efforts in the next Congress to greatly limit the ability of, again, citizens to petition and then ultimately to go to court to force decisions on listing petitions. It will not be to improve the Act.

The history is clear. We've got a program that actually works. What we need is more money. The Agency needs more money to make it work more effectively. But the answer is not to limit this structure that has been in place and has shown to work.

Thank you.

Malka: Before we go into questions, I found a quote I have to share. I mentioned that President Nixon was an advocate of the Endangered Species Act. In 1972, he saw this coming, and he said, "Problems that have been building over many years will not yield to facile solutions." I guess, we didn't get surprised all at once.

Let's start with questions from the live audience. Nothing from the live audience?

Malka: Nothing from the Internet audience. Our speakers were so convincing.

Ben: While we're waiting for people to come up with difficult questions, I'll make a quick comment about something that Mike said at the end.

I have no reason to disagree, although I haven't done the research myself, about the eighty percent figure that was on one of his slides, about the number of species that are listed that were the subject of petitions or litigation.

I will point out that there's a difference between correlation and causation. You can argue, and I do argue, that a lot of the things that Fish and Wildlife Service was very much planning on doing, had schedules to do, none the less, we sometimes get petitions or we get sued to do, that just simply forces us to do something we were doing anyway. So, the Fish and Wildlife Service should get some credit for a lot of those species.

There are probably some species that the Service has been petitioned for that they might not have been aware of otherwise, or they got sued on where they might not have acted as quickly otherwise. It's not a simple equation that anytime there's been a lawsuit or a petition means that the Fish and Wildlife Service never would have acted but for that. That's one little side comment I had.

Either of you guys have any comments on anything the rest of us have said? While we're waiting for comments.

Michael: I'll address that. I don't necessarily disagree with Ben's point. I will say, and this isn't a product of simply of the Endangered Species Act. I think you can look at most of our environmental statutes, Clean Water Act, Clean Air Act. I think, and this is not an either/or, but I think it's clear that citizen suit enforcement, whatever the law, has been shown to be incredibly important and effective. The agencies have all sorts of pressures they deal with, political and otherwise. I think what it does is, it provides some critical check to some of those pressures.

I think what I've found particularly appealing about this MDL settlement is that it got groups like CBD and Guardians do this work. A lot of these petitions, there is a lot of work that goes into these petitions. They feel strongly about the importance of this work, the Endangered Species Act.

What I think was appealing about the settlement is, it got those individuals and the Service's biologists together to finally figure out a way, that took into account an agency that's got a limited and restricted budget with the desire of those who are doing these petitions to get these species, or at least final decisions as quickly as possible. Hopefully, this sets another precedent in terms of how this program could operate from here on out.

Ben: Any questions yet?

Audience Member: What is the average time lapse between when an animal goes on the candidacy list and when it actually ends up on the endangered list?

How does that compare to the time lapse when you were doing this prior to the litigation?

Gina: I don't have the figures for each species, how long they're on the candidate list. I don't know if you guys have done that math. I can say most of the ones that we're working on now, the 2010 candidates, the majority had probably been on the candidate list for probably close to ten years or longer. There were a few that had been on the original...I mean our candidate list has kind of evolved over time as well, but there were a few that had originally been identified as candidates in the 1980s. The majority had been in the late 1990s to early 2000s because of the Friends of Animals, some of the older ones. Many years would be the best way I can answer that.

Our goal, should be allowed to implement our plan is, we, the Fish and Wildlife Service, have a goal. What we call listing transformation, we want to make petition findings within the statutory time frame, which is within 90 days or close to it, so that we can make the 12 month finding. We would like to have the balance, so if listing is warranted, we can actually propose it, and not use the candidate list as a purgatory.

Is that your word? Somebody's word was purgatory.

Ben: I've heard worse .

Gina: Our other goal is that no species will be on the candidate list for more than three years ‑‑ that we will continue to move them through.

Part of the problem, and if you ask, "Why were some of these candidates from the 80s?" It has to do with our listing priority number. We have, when we put something on the candidate list, we give it a number based on the magnitude of the threats, and the timing of the threats.

Species that have greater threats, that are occurring now, more impacted endangerment is...we haven't done the analysis, but seems to be more imminent. Those kept rising to the top, so species that would end up being more threatened. There are threats, but they're not really acting on them, now it's something we foresee happening in the near future. Those had higher numbers, lower priority for listing. We always got these crisis ones, so some species just would be on there for 30 years or more.

That's something we're trying to figure out how to work that in with our goal of getting species off the list within three years, how do we prevent species, that in some cases, those are the best ones. Those are the ones that are going to be easier to recover, if we know that there's a threat and not imminent. We can maybe intervene now and prevent that species from getting listed, or recovering it sooner.

Michael: Defenders and CBC did a report in 2001. Actually, we did it in response the time there was an effort to try to essentially override some of the enforceable deadlines, and instead give the Secretary of the Interior discretion to decide which species, which decisions, and when. So this is somewhat dated. But we had some figures.

A lot of this information came from the IG report. For example, in California, we found the average time between when a petition first came in and publication of a final rule was 17 years. Again, remember the statute, from petition to final, assuming you list, is supposed to be two years.

The average time between species was designated the time, there were actually two candidate lists. But as a candidate for listing, a final rule was almost 16 years. The average time between proposal and a final rule was seven and a half years.

Just one example that I was directly involved in was, as I mentioned, Canada lynx. From when the service officially recognized the lynx as potentially warranting listing to when it was actually listed was approximately 20 years. Again, this report now is over 10 years old. I don't know what the figures would be today.

Ben: I'll add that, one of the good things about these settlement agreements is that, if and when we get to the end of them and they're successfully implemented, there will be no species that in 2016, 2017, that will have been candidates for more than six or seven years, because all the ones that were candidates in 2010 will have been dealt with. We'll have a number of candidates at that point, but they'll all be between zero and about seven years.

Another way of looking at this is, in some senses warranted but precluded finding, which I mentioned, is safety valve on the Service's workload imparities if we get in work.

In some sense, it's a failure. Right? I mean, anytime you find a species is warranted for listing and you don't act on that right away, that's not a good thing. But administratively, it's something that Congress thought was useful for at least some circumstances and the Service unfortunately has had to avail itself of it.

But as Gina said, the ideal is your candidate list is always zero.

Audience Member: How much of the timing is due to lack of scientific information? Because I would think that there would be cases where there is a petition and their justices do not have scientific confirmation to say one way or the other and that could take several years given that there are all kinds of different threats acting on these species.

Ben: Do you want to start with that?

Gina: There are regulations related to a petition and so we're supposed to make a quick look within three months of receiving it. It's not a hard date but we are supposed to see whether there is kind of enough information to...we call it status review and take a really good hard look at what the petition has and what information is out there on the species.

So, there is that kind of if there is not a lot of good information one thing we're...I mentioned the policies index, we're trying to update regulations for the petitions to make sure we get good petitions and we have all the information at the time that we're petitioned to help us with making a determination quickly.

Then we're required that there is a hard date within 12 months to make a decision based on the best available information. So whatever they provided in the petition plus whatever information we can find for the species, we need to say, "Yes, it's warranted" and ideally propose it for listing or not warranted or warranted but precluded by other priorities.

Michael: It's interesting. If you look at some of the petitions in the early‑to‑mid '90s, this is still the case we're trying to extend.

There was a real effort to write extremely basically go out there and does a complete literature review. The petitions would come in over a hundred pages and I think that was for a couple of reasons. I think some the folks who were doing those petitions just liked the science of finding out about these species.

It was also a way...if your goal was to actually get species listed, you need to try to get all the information before the agency.

Recently, I don't think there has been a complete shift, but some of these mega petitions, I think there was a balance between warranted includes much information as possible to ensure that best decision is made versus the recognition that if your interest in getting species listed coming out of one petition at a time is not going to remotely make a dent and again the thousands of species that probably need to be listed.

I think as much as anything, it's really about a way to just getting a decision made. I know some of these, as a result of the process, the Service was actually determine that the species is actually better off. Maybe the threats on it is severe and they will come‑off the candidates list.

Assuming that's a valid decision, I think even that is preferable than having a species that probably shouldn't be on the list just languished there for years.

Malka: We have a question from the Internet.

Audience Member: Could you lead the panelists discuss criticisms of the settlements and how those criticisms were dealt with?

Ben: Sure. I will start. For those of you who follow this issue, there have been a lot of folks out there on the hill, in industry, and otherwise, who are unhappy with the accelerated pace of the Service's listing program.

Because the Service is not tied up in knots and is actually getting work done, that means species get listed, and sometimes, that gores somebody's ox and they don't like it. That has been, I think, one of the motivations.

Some of the specific criticisms we've gotten about the MDL is that it was all done behind closed doors, which is par for the course in any settlement negotiation. A settlement negotiation in litigation is, generally, not an open public hearing sort of thing.

We've gotten criticism about the fact that it requires a service to make these decisions this quickly, that maybe we need more time to make these decisions. That's a balance.

The Service made a judgment that it could do its job under the act and comply with the obligations that it agreed to in the settlement agreements if it had similar budgets going forward.

So far, I think that has shown to be true. The Service has been issuing decisions. They're not all super rushed. There certainly are stresses in trying to get decisions made on a deadline, but that's always going to be the case.

To me, the biggest aspect of that is that this is what the Act requires, right? If you don't like the way the Act reads, criticize the Fish and Wildlife Service in these settlement agreements for doing what the act says we have to do is an odd way to go, it seems to me.

The settlement agreements don't really add any new requirements beyond those that are already there within the act as it's written.

The one thing you could say is a partial exception to that is we agreed not to make warranted but precluded findings forever on these species.

That was something that we decided was, in our interest, to get the backlog dealt with, but the act would've allowed us to do that, at least, until such a time as we lost a case, challenging whether we were making expeditious progress on getting species off the candidate list.

If that had happened, then it would have been complete and total chaos. One of the real advantages of the MDL settlements is they allowed us to address this backlog in a thoughtful way, allowing the Service to keep its ability to prioritize. It was high priority ones first and the lower priority ones later, rather than just a crazy rush to the courthouse.

Do you guys have anything you want to say about the criticisms? It's a little bit of a lightning rod in certain circumstances.

Gina: Yeah. I was just surprised how MDL became the poster child for the government settling litigation.

We had been doing this...these deadline cases are very...we don't have a defense for these hard deadline cases. I was surprised that...and it's affected all of the federal agencies, I think, in their ability to settle litigation. We'll have to see what the next Congress says, because the previous Congress recruit had proposed some changes.

Michael: Yeah, I mean, I've...cover response is that the legal arguments, there were actually lawsuits filed challenging...they were basically collateral attacks on the agreement. All of those cases, all of those arguments have been rejected.

One of the arguments was, the one that Ben touched on, the Service was basically unlawfully tying its hands because it agreed not to go warranted but precluded, those arguments.

I think, in terms of the legal arguments, they've been shown to be baseless. The argument that our GC is a closed door...well, most settlement agreements are closed door agreements.

The Service retains full authority to make a final decision, so these were not agreements where the Service agreed to list 400 species. The goal was, hopefully, most of these would end up being listed. They wouldn't be on this list in the first place if they weren't in trouble.

I've heard public interest lawyers are getting rich off these agreements. If that was the goal, it didn't make a whole lot of sense to settle versus litigating 400 separate cases.

I think, at the end of the day, you're hearing criticisms from those who don't want the act to work, they don't want species being listed. I think it really has little to do with the substance of the settlement agreement itself.

Ironically, some of the legislation we've seen introduced in Congress last year, which was to a large extent, response to these agreements, would do things like prohibit the agencies from entering into settlement agreements unless they had the sign off of all affected states.

It would basically force the Service to actually litigate all of these cases for which they really have no defense.

One of the ditched arguments that have been thrown out is that "It's a big waste of money. It's forcing the Service to do things rather than actually protecting species."

The legislation would significantly drive up the cost of having to administer this program, because it would force the Service into actually having to litigate cases, unless Congress decides to change the statute that they have no way of winning. These are just straightforward deadline cases.

I don't really take any of those arguments seriously, at least in terms of, again, if your goal is to actually make the act work, if you're goal is actually protecting species.

Ben: Also, in terms of providing protection to species, it's true that the Service...every dollar it spends out of its budget to work on listing new species is theoretically a dollar that could have been reassigned to doing recovery actions for already listed species.

The point that Gina made before was a great one, and I think, really crucial, and not necessarily completely unexpected.

The fact that you've got relatively hard deadlines and a schedule that is not immediate, but it's out for a couple of years, gives landowners, states, counties, and federal agencies the opportunity to take conservation actions for a species which is still on the candidate list.

If they want to try to keep it from listed at all or make it so that if it is listed, it can be delisted more quickly, because we've already made down payments towards its recovery in effect.

I guess I would say that this is allowed for an enormous amount of leveraging of resources to get those recovery actions taken.

It might otherwise not have been taken for all of these candidate species, or it might not have been taken until much later when it was much more expensive to try to bring them back from the brink. So ultimately, it seems to me that this is really a big net plus in terms of species recovery even though we are spending more time listing species.

Malka: Questions? There is one more from the Internet.

Audience Member: So you've described settlements between two plaintiffs. Are there other settlements pending, other cases pending?

Ben: Yeah. Gina didn't go into this. I think the Service has put together some stats about how the landscape has changed from 2010 before the MDL settlements to now. For the 15 years before that, we had an enormous case load of deadline suits.

We always have some case load with respect to merits challenges when we've made a decision and somebody doesn't like it and they sue. We continue to have those. I don't know if those numbers have gone up or down. They are probably about the same.

The number of deadline cases that we have are way smaller. Now, partly that's because CBD and Guardians agreed to either not sue us or to very significant limitations in the number of deadline suits. But as I alluded to earlier, we have not had Defenders of Wildlife or other groups step in to that same degree.

We do have some individual lawsuits. Xerces has sued us several times for deadline situations and we settled a few cases here or there. We settled a case with another group, Caesar, which is not really an environmental group, on American eel, I think. I would say it's two orders of magnitude less than it was before.

Gina: Yeah, I think when we calculated last, 97 percent reduction in deadline litigation after we entered into this. That was actually an important point and one of our caveats when you read carefully. The settlement agreement is that we had to assume that we would be free to work on our listing work plan and another group wouldn't come in and either enforce those outstanding 500 twelve‑month findings or petition us for other species. It has turned out that that has been the case. We've significantly reduced the deadline litigation.

Ben: Right. We still get a few suits from CDB every year. They did not agree in their settlement agreement to an absolute moratorium on deadline litigation like Guardians did, but that is a much more manageable number and we've been able to work through those with a few additional settlements, but nothing of the order of magnitude of the MDL.

The settlements we're entering into now are all similar to the sort of settlements we entered into in the 15 years before the MDL but at a much, much smaller pace.

Michael: And then these settlements don't have the litigation risk of new or more occluded findings as a result because the courts have upheld the expeditious progress.

Gina: Exactly.

Ben: Yes.

Malka: Any other questions? One more from the Internet.

Audience Member: You spoke a little bit about budgetary issues and the effects the budget has on this. Could you say a little bit about the costs for workloads of field biologists and how they've changed since the settlement. Also, if there would be any chance to find new sources of funding from settlements to apply to this.

Gina: I'm having trouble hearing. The one question is how has the cost for a field biologist change? Am I understanding...

Malka: I think he asked about the workload.

Audience Member: Yeah.

Gina: Well, the workload has gone up significantly for making these listing determinations. The funding, we've restructured how we funded our regions. Most of these decisions are made out in the regions and/or their fields and so we have, except for the sequestration, pretty much maintained the same budget that we had had since 2010. Most of that money goes to the regions that have the listing work.

At one point, we used to negotiate each rule on a case by case how much funding would go to the regions and they would decide how much goes to the field. We developed as part of this transformation more certainty with listing and gave them more flexibility in how they administered the regions and administer their listing dollars. They've said that that has helped them a lot implement this and decide where to shift money between field offices.

Ben: Well, just one quick addition to that. To the extent the question was asking about, are field biologists having to work twice as hard now. They're doing more work on listing rules but they're doing less litigation support and so they're spending less time helping Department of Justice lawyers or Solicitors Office lawyers defend cases.

I don't know if there are figures on this but presumably they are not now working 80 hour weeks when they were working 40 hour weeks. They're just working more efficiently on the work that they really want to be doing and that is geared toward implementing of the Endangered Species Act as opposed to playing games with litigation.

Gina: Right. I would not underplay that there is more pressure on our listing biologists than there had been before. I think some of these process changes have helped where the biologists really focus just on the biology part and do a species report that has all the biological facts.

The rules and responsibilities helped. A field biologists who has expertise in a particular mollusk and has never done a listing decision isn't having to try to interpret the Endangered Species Act Section 4, and our regulations and DP...well invertebrates wouldn't be a DPS but, significant portion of its range.

The policy folks are then, at region and headquarters, are really focusing on understanding the policy so we're not duplicating effort with the team. Our old model was a biologist did everything. They tried to interpret the law and the regulations and make a recommendation to managers who then would agree or disagree. It kind of went that way as opposed I think that has helped.

But without a doubt, the biologists that are working on many of these rules, particularly the high‑profile ones have a lot of pressure but not necessarily more work. Not 80 hour weeks.

Malka: Well, I thank you all and hope you'll return next month. Thanks to our panelists.

Transcription by CastingWords

For over twenty-five years, the program for “listing” imperiled species under the Endangered Species Act (ESA) has been mired in controversy and litigation. In 2011, the U.S. Fish and Wildlife Service (FWS) entered into settlements with its two most frequent legal adversaries. These settlements require FWS, over a period of more than five years, to make listing determinations for hundreds of species. This settlement, in turn, has led to intense criticism from those who disapprove of new species listings, at least under the timeline for decision making required by the settlements. Op-eds, congressional hearings, and the introduction of bills to amend the ESA indicate that the listing wars may not yet be over. Join us for panel discussion that will present the views of both insiders and outsiders on the consequences of the settlements, and the future of listing under the ESA.

Ben Jesup, Attorney-Adviser, DOI Solicitor's Office
Gina Shultz, Chief, Division of Conservation and Classification, FWS
Michael Senatore, Vice President, Conservation Law, Defenders of Wildlife