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Wednesday, May 29, 2024 | Back issues
Courthouse News Service Courthouse News Service

Deals on Species Listings Duck Challenge

(CN) - Agreements at clearing the backlog of species waiting for endangered status dodged scrutiny after a federal judge said groups that sued lacked standing.

By 2010, the list of candidates for endangered status - known as "warranted-but-precluded" - had grown to 251 species.

Since the animals receive no protection as long as they remain on the candidate list, Wildlife Guardians and the Center for Biological Diversity filed suit.

The U.S. Fish and Wildlife Service Fish and Wildlife ultimately agreed to clear the backlog by making for-or-against determinations. Among hundreds of animals implicated by the decision are the Mazama pocket gopher in Washington state and four species of Texas salamander

In 2012, Fish and Wildlife concluded the settlements by preliminarily listing four subspecies of the gopher and all the salamander species as endangered, and moved to protect their territories as well.

These settlements prompted a lawsuit by the National Association of Home Builders, Olympia Master Builders, Home Builders Association of Greater Austin and the Texas Salamander Coalition, all of which claim to own land that the species count as their habitats.

Rather than challenging the decisions to list the animals as potentially endangered, the plaintiffs alleged that the settlements impair their members' own conservation efforts - which they say will make listing the animals unnecessary - and hurt their business and property interests.

U.S. District Judge Emmet Sullivan held Monday, however, that the homebuilders cannot point to any specific injury caused by the agreements, like other challenges brought against Fish and Wildlife over the settlements.

"Plaintiffs do not show that their members' conservation efforts will be found sufficient or insufficient to protect the species as a result of the deadlines set forth in the agreement," Sullivan wrote. "They also do not show that the service will ignore or discount their conservation efforts as a result of the agreements. Nor do plaintiffs show the timeframes set forth in the agreement are inadequate for the service to make a determination whether or not listing is warranted. Nor could they, since the gopher and salamander species at issue have been on the candidate list for at least 10 years."

The court also rejected complaints that the agreements unraveled conservation plans that were on the brink of approval by local authorities. Again, the builders failed to link the settlements to local decisions that incorporated Fish and Wildlife's recommendations, the ruling states.

"Plaintiffs fail to show that the agreements - as opposed to the service's actions separate from the agreements, or the independent action of local authorities - caused or will cause increased regulatory restrictions," Sullivan wrote. "Again, the agreements only require the service to determine whether or not to list the 251 candidate species within the next several years, not to reach any particular result. Nor do plaintiffs show that local authorities were compelled to adopt the service's regulatory recommendations. Accordingly, plaintiffs cannot establish their members' standing based on increased regulatory restrictions resulting from the agreements."

Sullivan also dismissed claims that the agency ditched its own statutory procedures in making the agreements, noting that those arguments have been rejected in prior cases. But while finding the builders lacked standing to challenge the agreements, he advised them to pursue other avenues to challenge the gophers' and salamanders' potentially endangered status.

"'Warranted-but-precluded' findings are judicially reviewable," Sullivan wrote. "In addition, plaintiffs aggrieved by a warranted finding may challenge the service's final rule listing the species."

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