Hastings: Court Misses the Mark on ESA Settlement Ruling

This just in as a press release from the House Committee on Natural Resource. The bladderpods seem to have scored another major legal victory in closed door meetings between litigious groups’ lawyers and government lawyers. April Fools Day seems to be an appropriate date to learn of these things. 160 NEW species listed! And all as transparent as closed doors, muffled voices, and shredded notes can be. Reminds of the Clinton Plan for Northwest Forests planning process, and we can see how that turned out. This type of stuff should be illegal. In my opinion.



Tuesday, April 1, 2014



CONTACT: Press Office


 WASHINGTON, D.C. – House Natural Resources Committee Chairman Doc Hastings (WA-04) issued the following statement regarding the federal court ruling upholding the Obama Administration’s closed-door Endangered Species Act (ESA) settlement agreement with the Center for Biological Diversity and WildEarth Guardians:

I’m disappointed with today’s court ruling that upholds the Administration’s mega-settlement with litigious environmental groups to make listing decisions for hundreds of species behind closed-doors and in a rushed, arbitrary time-frame.  Over 160 new species have already been added to the list just since these settlements.  In many cases, such as the White Bluffs Bladderpod in my district, or in the Lesser Prairie Chicken listed just last week, legitimate concerns have been raised about the science or the lack of state or local government involvement. The potential listings of even more species, including the Greater Sage Grouse, could have devastating job and economic impacts across the entire country.  Listing decisions should be made in an open, transparent manner and based on the best available science and data.  This decision today proves even more why common sense legislation to curb these lawsuits and closed-door settlement agreements will do more to aid endangered species than lawyers and courtrooms.  That’s why I and other colleagues will work to advance targeted legislation to improve and update the ESA by focusing on transparency and species recovery.”




9 thoughts on “Hastings: Court Misses the Mark on ESA Settlement Ruling”

  1. As a “bladderpod” (pejorative name-calling not really conducive to taking your opinion seriously), it occurs to me that a press release from one party merits rejoinder from another. Notably, the DC District judge ruled that fear of the results of a required decision-making process is not a legal basis to stop the process. Under the Endangered Species Act, the US Fish and Wildlife Service is required to render listing decisions based on the best available scientific information. Any member of the public, including “bladderpods,” scientists, states and industry, can comment and influence the process, as clearly occurred with the recent 4(d) rule on lesser prairie chicken.


    • What will be the time limits on deciding which “best available science” is actually the best? Or, do you want the “quickest available science”? It sounds more like fancy high-tech wheel grease for goalposts, to me. I’ve never been in favor of eliminating the ESA but, I would like to see it revamped, especially in the case of protecting habitats from bark beetles and catastrophic wildfires. Those are the biggest dangers to endangered forest habitats. It is important to not leave its fate to “whatever happens”.

    • JL:

      I was referring directly to the White Bluffs bladderpods that Hastings refers to, and which have been discussed in this blog before. I was trying to be humorous, not call people names. If people don’t want to take me seriously because they don’t think my jokes are funny, I’ve had experience in that department, too, so that’s ok. We’ve also discussed “best available science” on this blog on several occasions, and so far no one has been able to offer a convincing argument as to what this means, other than just another regulatory intonation without any real track record to point to — at least not a very good track record. What do you think about the “transparent” part of Doc’s statement?

  2. Question: what was the genesis of the Western Oregon Plan Revisions offered by the Bureau of Land Management in 2007-08?

    Answer: Timber industry “sue-and-settle” with Gale Norton, Secretary of Interior.

  3. The settlement agreement only requires FWS to *actually study* 700+ species that have been waiting for a review for decades. The settlement itself doesn’t list anything or require anything be listed. So what Doc Hastings is saying is that he doesn’t want those species studied, he doesn’t want science applied to their listings and he doesn’t want anything protected at all.

    All we see, again, is that the Republican Party would just plain rather not have an Endangered Species Act at all.


  4. well, maybe these details aren’t clear from Doc Hastings’ press release, parts of which don’t seem quite accurate:
    – The settlements in question (there were a couple) actually happened almost three years ago.

    – The settlements weren’t to make “listing decisions behind closed doors”, instead they obligate FWS to make listing decisions (which it had to do anyway) in a specified time frame, rather than letting them languish. Here’s a link to the (old) news: http://www.eswr.com/2011/07/cbd-fws-reach-separate-agreement-on-listing-deadlines/

    And another, from CBD: http://www.biologicaldiversity.org/news/press_releases/2011/species-agreement-07-12-2011.html

    -The settlements say nothing about whether those listing decisions will be positive or not, that’s up to the FWS with public input, as always. It’s possible that the agency may feel rushed though, I don’t know, though they probably are understaffed/underfunded so that’s not unlikely.

    – The decision that Hastings is referring to was the rejection of a lawsuit by a group of industry representatives (National Assoc. of Home Builders, others). They wanted to overturn the requirement for FWS to process the proposed listings expeditiously; i.e. (these are CBD’s words so maybe some homework needed to check for bias) “arguing that they would be harmed if the Fish and Wildlife Service completed its legally required scientific review of the species’ status. In Monday’s ruling, however, federal Judge Emmet G. Sullivan concluded that fear of the results of a required decision-making process is not a legal basis to stop the process.”

    -CBD adds this perspective: ““The Endangered Species Act provides ample opportunity for the Home Builders and any other citizen, state or group to participate, comment and even challenge the result of protection decisions,” said Noah Greenwald, director of the Center’s Endangered Species program. “What they can’t do is trample democracy by insisting that the government make no decision at all.” http://www.biologicaldiversity.org/news/press_releases/2014/NAHB-757-suit-dismissal-04-01-2014.html

    My interpretation of the basic issue: FWS was falling further and further behind on processing its proposed listings, which have legally mandated time limits. So, they were sued and agreed to compromise, saying the required schedule is too fast for us, but we agree to abide by a compromise schedule and get the backlog of proposed listings evaluated. Maybe someone else has followed this better than I have and has a different interpretation.

    Can’t hardly argue with Doc’s statement that “Listing decisions should be made in an open, transparent manner and based on the best available science and data.” But again, he’s (incorrectly) implying that the listing decisions are being made in closed-door meetings, whereas the settlements only dealt with the timing of the decisions, not their outcome. Anyway, that’s my understanding of it. -Guy

  5. At the time of the CBD and WildEarth Guardians settlement agreements, there were 254 species on the candidate list. After the settlement agreements, all of a sudden there were 757 species that are required to have individual listing decisions prior to the end of 2018.

    Since the settlement agreements, it could be argued that the quality of work performed for each individual listing process has seen a significant drop. One could also argue that the proposed wolf delisting may have some origin in the thought that it’s a really expensive program, and that reallocation of funding from it could help fund some of the work brought on by the settlement agreements.

    Transparency, particularly access to data for study replication, is an issue. So is the question of whether “best available science” is being used or not. In some cases, credible ongoing locally-based species conservation programs are dismissed out of hand.

    So, yeah, there are some deep systemic problems.

    The CBD press release is not too far out of line where it is commenting on the case that was dismissed. Where it does go off the rails is in characterizing the recently filed Oklahoma case as a “me, too” case. The points of law being argued in the Oklahoma case differ substantially from those argued in the one that was dismissed.

    I would observe that the ESA cases that go against USFWS are generally those where the main focus is on flawed process and/or failure to comply with statutory mandates. It’s more difficult for the courts to grant generous deference to the agencies when the agencies are not complying with the law.

  6. A non-press release version of the story: http://www.courthousenews.com/2014/04/02/66709.htm.

    I agree with descriptions above about this lawsuit being a challenge to a decision that hasn’t been made yet. I also agree with Norman that the new cases on the lesser prairie chicken are different because the decision to list has been made for that species.

    The judge in the former offers some advice to the judge in the latter with regard to best available science: “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.”

    He is suggesting that the legal timeframes in ESA are mandatory and the choice of science (especially what is ‘available’) must be made in that context.


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