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D.C. Circuit Approves Settlement Compelling Fish and Wildlife Service to Move Forward with Listing Decisions under Endangered Species Act

September 29, 2011

On September 9, 2011, the D.C. Circuit Court approved two far-reaching settlement agreements between the Center for Biological Diversity, WildEarth Guardians, and the Fish and Wildlife Service (“FWS”). These settlements require the FWS to make listing decisions under the Endangered Species Act (“ESA”) on more than 700 species over the next 5 years. Click here for the Center for Biological Diversity settlement and approval and WildEarth Guardians settlement and approval.

Upon receipt of a petition for listing a species as threatened or endangered, the FWS has 90 days to make an initial determination about whether a listing is warranted. If the FWS determines that a listing may be warranted, it must then review the species’ status and make a finding within 12 months that listing is either: 1) not warranted; 2) warranted, but precluded by higher listing priorities; or 3) warranted.

The litigation that led to these settlements relates to the FWS’s response to species listing petitions made by the Center for Biological Diversity or WildEarth Guardians. For 251 species, the FWS initially found that listing was warranted, but precluded by higher listing priorities. These “warranted, but precluded” species are referred to as “candidate species.” Candidate species receive no protection under the ESA. Under the settlements, the FWS is required to review the 251 candidate species and either propose listing or make a finding that listing is not warranted by 2016. These species include, among others, the greater sage grouse, North American wolverine, northern long-eared bat, and Oregon spotted frog. The FWS must also make listing or critical habitat determinations for other species, including the black-footed albatross, California golden trout, and dusky tree vole. Finally, the FWS must make initial petition findings and critical habitat designations for over 600 species between 2011 and 2012, including 32 species of Pacific Northwest mollusks, 42 species of Great Basin spring snails, and the 403 Southeast aquatic species.

The settlement agreements also provide that the Center for Biological Diversity and WildEarth Guardians are the prevailing parties in the litigation, and are entitled to attorney’s fees. The amount of fees is unspecified in the settlement agreements. The FWS is also entitled to seek modification of the settlement agreements in the event their budget is reduced below 2011 levels.


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