December 15, 2015, American Stewards of Liberty (ALS) and partners filed a case against the U.S. Fish and Wildlife Service for failing to make a proper 90-day review of the organization’s petition to delist the Bone Cave harvestman. The harvestman is a spider like, cave dwelling species that was added to the endangered species list in 1988. The petition demonstrates the species was listed in error and is sufficiently protected.
ASL is a part of a team identifying species that do not warrant federal protection under the Endangered Species Act (ESA). The team has filed delisting petitions on three species to date: Bone Cave harvestman, Navasota Ladies’-tresses, and American Burying beetle. A decision has not been issued on the two remaining petitions. Additionally, the group filed a notice of intent to sue the Service for failure to act on the Arizona Game and Fish Departments petition to delist the Hualapai Mexican vole. The Service has since issued a positive 12-month finding on the vole with a final decision expected to be issued in 2016.
If plaintiffs prevail in the current harvestman action, then it is expected the court will order the Service to conduct a proper 90-day review that could result in a positive 12-month finding leading to the delisting of the species. This first step in the case is critical for the purpose of ensuring the Service complies with the ESA and implementing regulations that require the 90-day review to be limited by the “substantial information” standard. This standard ensures the Service does not casually dismiss delisting petitions and foreclose the opportunity for a more in-depth review, and public process, which is carried out during the 12-month review period.
Specifically, the complaint alleges the following:
An actual and substantial controversy exists between Plaintiffs and Defendants over Defendants’ duty to comply with the ESA and APA in making a finding as to whether Plaintiffs’ Texella reyesi Delisting Petition “presents substantial scientific or commercial Information indicating that the petitioned action maybe warranted.”16 U.S.C. §1533(b)(3)(A). Plaintiffs contend that Defendants have violated the ESA and APA by: (1) failing to recognize the original classification error, as mandated by 50 C.F.R. §424.11(d); (2) failing to limit review to the Delisting Petition and instead attempting to gather additional, external information through a newly-announced five-year status review;1 (3) applying the wrong evidentiary standard and failing to apply the “substantial information” standard; and (4) ignoring, misconstruing, and/or subverting scientific information.
This case is currently justiciable because Defendants have failed to follow the ESA and its implementing regulations in determining whether Plaintiffs’ Texella reyesi Delisting Petition “presents substantial scientific or commercial information indicating that the petitioned action maybe warranted.”16 U.S.C. §1533(b)(3)(A).
(ASL et. al. v. USFWS, page 18)
