SAN FRANCISCO (CN) — Baykeeper, an Oakland-based nonprofit that defends the health of the San Francisco Bay, on Thursday asked a federal judge for a favorable ruling in a fight with the U.S. Fish and Wildlife Service over the designation of an endangered fish species.
The legal fight concerns the endangered-species status of the Bay-Delta longfin smelt fish, which is listed as a threatened species under California’s Endangered Species Act. The Bay-Delta longfin smelt lives in the San Francisco Bay and some areas of the Pacific Ocean.
Conservation groups have tried to get federal protection for the species since 1994. The Center for Biological Diversity and San Francisco Baykeeper sued in 2009, after the Fish and Wildlife Service determined the longfin smelt is not a distinct population entitled to protected status because it migrates up the coast to breed with other longfin. Three years later, the federal agency revised its conclusion but only put the species on a waiting list.
Another lawsuit followed in 2019, after the Trump administration failed to give protection to the longfin smelt and several other highly vulnerable species
In October 2022, FWS said that it was proposing to list the species as endangered under the Endangered Species Act because of worries the species could go extinct.
Fish and Wildlife had until October 2023 to publish its proposed listing and designate critical habitat for the fish but failed to meet its deadline. Baykeeper filed a complaint in December 2023, seeking summary judgment and an order requiring FWS to publish its listing and designate habitat within 14 days.
During a hearing on Thursday, U.S. Magistrate Judge Laurel Beeler noted that this case was not centered on a factual dispute.
FWS has admitted that it missed its deadline and violated the Endangered Species Act by doing so. Rather than disputing this, the agency instead asked for an extension until July to publish its proposed listing, saying it needed additional time to complete the necessary work.
Beeler seemed to suggest that the two sides could meet in the middle, with a proposed listing coming by July and a decision on the critical habitat by the end of the year. She noted that her trial calendar is full and that she is wary of further delays.
She asked Jacob Jose, counsel for FWS, if July was the fastest timeline that the service could make a determination.
“The service maintains that that is the most feasible date to get a resolution,” Jose replied.
Beeler said that both sides “were right on many levels" but that it was important to think in terms of getting the situation resolved quickly — even if the outcome wasn’t perfect.
““Is this amenable to say let’s get this all done in 2024?” she asked.
Ben Eichenberg, counsel for Baykeeper, said he still wanted to see the proposed listing sooner rather than later, citing the longfin smelt’s threat of impending extinction.
“This is an urgent petition. It’s been years,” he said — adding that the plight of the longfin smelt was the most important consideration and that the species’ status had already been litigated for decades.
Beeler said she understood Eichenberg’s position — but that if she published an opinion and FWS appealed, FWS would end up getting their preferred timeline anyways.
Beeler said she believed FWS was committed to getting the situation resolved and was being sincere when it asked for the July extension.
“It seems hard for me to disagree with what the government has proffered as to what they’re able to do,” she said, before promising an order later today or on Friday.
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