The bureaucratic process involved in moving plants and wildlife onto the Endangered Species Act list has devolved over the decades into an acrimonious court feud between champions of the country's imperiled species and the U.S. Fish and Wildlife Service administrators charged with protecting them.
Candidate species have lingered for years on the government's docket. Concerned citizens' groups have sued to get them attention. Then, in the course of responding to those lawsuits, the service has spent more time on litigation than biology. As a result, delays lengthened and more lawsuits were filed, is if on a never-ending loop.
In the two years since President Barack Obama took office, only four species in the continental U.S. have been listed. As of November of last year, 251 were still waiting for final protection — and a majority of them have been in that position for more than 20 years.
The mess — as it has been widely defined by everyone involved in the process — finally led this week to a historic settlement that could rewrite how the country protects its imperiled species nearly 40 years after the Endangered Species Act was first passed by Congress.
Fish and Wildlife has promised to prioritize those 251 candidate species and make a final determination on each of them by September of 2016. In the meantime, the organization that has most frequently dragged the agency to court — WildEarth Guardians — has promised to stop suing, and to scale back its petitions of new species for consideration. Both sides hope the détente will not only save the Brush Prairie pocket gopher and the Florida leafwing butterfly, but will also reset the agency's work plan for years to come.
"What we have recognized alongside the service is that we don't want to continue doing the same thing we've been doing," said Nicole Rosmarino, the wildlife program director for WildEarth Guardians, "because we've gotten into a situation where the best we can do is get more species added to the end of a very long waiting line that's not moving. And that's not serving anybody, particularly not the species stuck in that waiting line."
Since 2007, WildEarth Guardians has petitioned more than 700 species for listing and filed more than 30 related lawsuits to nudge the Fish and Wildlife Service through the process' many bottlenecks. The Endangered Species Act requires that wildlife petitioned by the public receive an initial finding within 90 days, and then another at 12 months. The government then ultimately places species in one of three categories: they either warrant or don't warrant protection, or warrant it but are "precluded by higher priorities."
That last designation doesn't mean species are precluded from protection because of priorities such as economic development or national defense; they're precluded from protection because of the higher priority of other species — which makes little sense when those other species don't seem to be getting any attention either. The 251 species at the heart of this settlement all sit in this limbo.
"That's where there's a clear policy problem," Rosmarino said. "We have this act that's tremendously effective in pulling species back from the brink, but it doesn't work until a species is formally listed under it. Here, you have these hundreds of species where the Fish and Wildlife Service has already recommended that there's a problem, that they are imperiled, and yet, the protections of the Endangered Species Act haven't been brought to bear to pull them back from the brink."
Fish and Wildlife officials said this week that the sheer volume of court orders has threatened to consume most of the service's funding and staff. The service has received more than 1,230 petitions for new species to be considered in the last four years, nearly eclipsing the total from the previous three decades. The government sought to consolidate the many related lawsuits in district court in Washington, D.C., leading to the settlement reached this week.
From outside Washington, it's hard to grasp exactly what it is that takes so long in making these decisions.
"The principal question is actually a very simple one," Rosmarino said. "Is the species threatened or endangered, or not?"
And that question is supposed to be a purely biological one, without regard for political or economic considerations, without concern for even how an endangered species would logistically be saved once it's listed.
Still, the complications are many. There's a spider, for instance — the Warton Cave meshweaver — that exists in only one cave in Texas. It's been in the queue for endangered listing for more than 16 years.
"We know where it is, but it hasn't been surveyed in years because it's on private land where the landowner is denying access," Rosmarino said. "And the lock of the gate is rusted shut."