Political influences on USFWS listing decisions under the ESA: time to rethink priorities.

Recently I read an account of a Los Angeles "Eco-Expo" last April, where children were invited to write down their answers to the basic question: "Why save endangered species?"

One child, Gabriel, answered, "Because God gave us animals."

Travis and Gina wrote, "Because we love them."

A third answered, "Because we'll be lonely without them."

Still another wrote, "Because they're a part of our life. If we didn't have them, it would not be a complete world. The Lord put them on earth to be enjoyed, not destroyed."(2)

--Bruce Babbitt, Secretary of the Department of the Interior

[O]ne of the most amazing things to me is that the Service continues to insist that the listing process is totally apolitical. At the same House hearing at which I testified, acting Director Rogers insisted, with a straight face, that political factors have no influence whatsoever.

It seems to me that the first necessary step in any reform [of the Endangered Species Act] is at least some effort to be truthful and honest with the public. No one who closely observes the listing process believes that politics are unrelated to listing decision[s], and when the Service makes these kinds of statements, it loses any credibility with conservation groups, legislators, and judges. It would be far preferable to have an honest admission that politics has an enormous influence on the process, and then we could get onto the critical debate of whether politics should influence ESA decisionmaking; how much; and at precisely what point in the process .... (3)

--Eric Glitzenstein, ESA Attorney

I. INTRODUCTION II. BACKGROUND

A. Endangered Species Act

B. 1983 USFWS Priority Guidelines

C. 1996 USFWS Priority Guidelines

D. Past Political Influences on USFWS Listing Activities

III. WHAT'S WRONG WITH RECENT USFWS LISTING ACTIVITIES

A. The Plight of the Imperiled Bull Trout, Canada Lynx, Barton Springs

Salamander, and Alabama Sturgeon

B. Mechanisms of Misapplication of the Law

1. Poorly Defined Priority Standards in the 1983 Guidelines Allow

the USFWS to Consider Political Factors

2. USFWS Avoidance of Emergency Listings

3. The FFA Settlement and Stipulation: Evidence that the USFWS

Has Slowed the Rate of Species Listings

4. USFWS Promulgation of the Possibly Illegal 1996 Guidelines

5. Improper Use of the Five Statutory Listing Criteria

C. USFWS Motive to Avoid Political Controversy IV. CONCLUSION AND RECOMMENDATIONS: HOW TO TAKE THE POLITICS OUT OF

AGENCY LISTING DETERMINATIONS

A. USFWS Should Recognize that Politics Influences Its Listing

Decisions and Attempt to Limit the Impact of These Illegal

Considerations

B. USFWS Should Modify Its 1983 Priority Guidelines

1. Consolidate and Define Imminence and Magnitude of Threat

2. Ecosystem Factor

a. Keystone Species

b. Indicator Species

c. Species Located in Rare or At-Risk Ecosystems

d. Umbrella Species

C. USFWS Should Increase Number of Emergency Listings by Defining

Standard and Better Monitoring Candidate Species

D. USFWS Should Not Prioritize Listing Decisions by Activity Type's

E. USFWS Should Speed Up the Listing Rate by Requesting More Funds

for Listing Determinations

I. INTRODUCTION

Our planet is currently engulfed in a great extinction crisis caused by humankind's destructive handiwork.(4) Some estimates show that the planet might lose as much as fifty percent of all species within the next thirty years if humankind's relentless onslaught of the natural environment does not slow down.(5) The United States Congress has formulated a plan to slow extinction, and it is called the Endangered Species Act of 1973 (ESA).(6) Congress legislated in hopes of turning around the mass trend of extinction confronting America by protecting threatened and endangered species both at home and abroad. The ESA states that one of its main purposes is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."(7)

The goals of the ESA direct the United States Fish and Wildlife Service (USFWS or Service) to protect and conserve the nation's biological heritage. Congress charged the Secretary of the Department of the Interior, working through the USFWS, to implement this sagacious Act.(8) The USFWS is one of the "principal conservation agencies" of the Department of the Interior(9) and a "land manager with stewardship over most of the nation's federally owned land."(10) In addition, the USFWS, through its mission statement, has pledged "to conserve, protect, and enhance fish and wildlife and their habitats for the continuing benefit of the American people."(11) I In the case of endangered species, the USFWS has been called upon to step in front of the industrial forces that threaten the well-being of imperiled species or destroy their habitat and to put a stop to these destructive mechanisms that rob the planet of its diverse biological wealth.

Despite past efforts to act in the best interest of imperiled species, the USFWS has not been perfect in its performance. The Service has failed to extend ESA protection to deserving imperiled creatures, such as the bull trout,(12) the yellow-legged frog,(13) the Alabama sturgeon,(14) the Florida black bear,(15) the Canada lynx,(16) the Alexander Archipelago wolf,(17) the Queen Charlotte's goshawk,(18) the Barton Springs salamander,(19) and the jaguar,(20) often because of political pressure from would-be regulated parties and politicians opposed to federal regulation. However, any consideration of political or economic factors by the USFWS is in direct contradiction to Congress's explicit mandate in legislating the ESA that the USFWS is only to use the "best scientific and commercial data available" in its listing decisions.(21) Further, in 1982, Congress recognized the susceptibility of the USFWS to political influences when deciding which species to list during periods of candidate species backlog, and mandated that the Service use a "scientifically based priority system" to rank candidate species.(22) However, these congressional mandates did not end the role of politics in USFWS listing decisions.

Politics has crept into many USFWS listing decisions. The USFWS has used a number of legal-like mechanisms to illegally consider political factors while maintaining an aura of legitimacy. Examination of some of these mechanisms of misapplication of the law, which include mechanisms and procedures in both the statutory and regulatory frameworks, illustrates how the USFWS may have considered politics in at least some of its listing decisions. First, recent lawsuits which have forced the Service to increase its listing rate demonstrate how the Service has been slow to list species.(23) Second, the USFWS has refused to emergency list highly endangered species despite a strong congressional mandate that the Service should use this provision more.(24) Third, the USFWS has hidden species indefinitely in the "warranted but precluded" category through the use of its 1983 priority guidelines (1983 Guidelines) which were created in response to the 1982 congressional amendments.(25) To maintain a species as "warranted but precluded," the USFWS need only show that there is a backlog of other higher priority candidate species and that it is making "expeditious progress" in processing this backlog.(26) Through the use of discretionary, ambiguous standards for setting this priority number, however, the Service has been able to indirectly consider political factors in establishing which species warrant protection under the 1983 Guidelines. Fourth, the seemingly ultra vires agency promulgation of new priority guidelines for 1996-1997 (1996 Guidelines)(27) prioritized listing by the type of listing activity instead of by the biological need of a species, and resulted in an illegal "self-imposed [listing] moratorium"(28) for many needy candidate species. Finally, in its most obvious demonstration of considering political factors, the USFWS has egregiously misapplied the five statutory listing criteria.(29) All of these factors strongly suggest that the Service has been misapplying certain provisions of the ESA.

This Comment explores the existence of improper political influences in the USFWS listing decisions. Part II gives background information on the ESA, the 1983 and 1996 Guidelines, and past political influences in USFWS listing decisions. Part HI gives various examples of highly imperiled species that have been unjustly denied protection and identifies various statutory and regulatory mechanisms that the Service has recently used to improperly consider political factors. Part IV suggests ways that the USFWS can better conform its behavior to the requirements of the ESA, partly through restructuring its priority guidelines to reduce the possibility that politics will play a role in future listing decisions. One suggestion is for the USFWS to create a new "Ecosystem Factor" that gives consideration to the ecological significance of a candidate species when assigning priority numbers.

II. BACKGROUND

A. Endangered Species Act

In 1973, Congress enacted the Endangered Species Act (ESA) "for the conservation, protection, restoration and propagation of species of fish, wildlife, and plants facing extinction."(30) The ESA has a broad goal: to protect as many threatened or endangered species as possible.(31) In fact, ex-Representative John D. Dingell (D-Mich.), who served as chairman of the congressional committee that introduced the bill which became the ESA, stated "[i]f it were possible to avoid causing the extinction of another species, [Congress] resolved to do exactly that."(32)

Congress put the Secretaries of the Interior and Commerce in charge of ESA implementation.(33) The Secretary of the Interior, acting through the United States Fish and Wildlife Service (USFWS or Service), oversees the overall implementation of all of the duties of the ESA regarding freshwater and land species.(34) The Secretary can list a species because of any of the following factors: 1) "present or threatened habitat destruction," 2) overutilization or exploitation for sport, science, or education, 3) "disease or predation," 4) "the inadequacy of existing regulatory mechanisms," or 5) other factors.(35) The ESA provides many protections to a species once it is listed. In fact, since only listed species receive formal protection under the Act,(36) the listing of a species becomes one of the most crucial steps for an imperiled species to gain federal assistance.

Under the listing program, the USFWS can either directly propose a species for listing or change of status,(37) or an "interested person" can petition the Agency to do it.(38) The USFWS has listed most species through the citizen petition process.(39) Under the citizen petition process, the USFWS has ninety days upon receiving a petition to list a species to determine whether that petition "presents substantial scientific or commercial information indicating that the petitioned action may be warranted."(40) If the petition does present substantial information, then the USFWS has twelve months to review "the status of the species concerned" to determine whether listing is warranted, not warranted, or "warranted but precluded."(41) If the listing is warranted, the Secretary then publishes a proposed rule in the Federal Register, which identifies the species as either "endangered"(42) or "threatened,"(43) and requests public input.(44) After another twelve months to consider the comments and other relevant scientific evidence, the Agency makes a final decision and publishes a final rule.(45) The listing of a species as either threatened or endangered(46) is the action which invokes the statutory protections of the ESA, thus making the listing process the "keystone of the Endangered Species Act."(47) The Secretary "shall" make the listing determination solely on the "basis of the best scientific and commercial data available to him [or her]"(48) at the time, and neither economics nor any other "non-biological" considerations may play a role.(49)

The emergency listing provision allows the USFWS to list a species immediately for "any emergency posing a significant risk to the well-being of any species of fish or wildlife or plants"(50) The emergency listing provision lasts for 240 days, at which point the Secretary must either list the species through the normal rulemaking process or drop the species from protection.(51) Congress meant for the USFWS to use the emergency listing provision when it was clear that extinction was imminent and time did not exist to process the proposal through the normal rulemaking procedure.(52)

Listing a species activates the two most important protections of the ESA--section 7 and section 9. Section 7 requires all federal agencies to refrain from taking actions likely to jeopardize the continued existence of a listed species or adversely modify the species's critical habitat.(53) Section 9 prohibits any person from harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting any species listed as endangered--but not threatened--under the ESA.(54) Overall, the congressional intent is to provide a large web of protection for species from both federal and private actions once the Secretary has listed a species.

B. 1983 USFWS Priority Guidelines

The unworkably long listing times under the pre-amendment ESA so concerned Congress that, in 1982, it set tough time limits on listing activities.(55) Congress also commanded the USFWS to "utilize a scientifically based priority system to list and delist species, subspecies and populations based on the degree of threat."(56) In 1983, the USFWS established the current "scientifically based" priority system in response to Congress's mandate.(57) The USFWS created a twelve-level priority scheme, where one represents a species with the highest listing priority and twelve represents a species with the lowest priority.(58)

The USFWS priority scheme considers three factors to determine a species's ranking. The three factors, from the most influential to the least influential, are 1) the magnitude of threat, which the USFWS defines as the threat to the species's "continued existence,"(59) 2) the immediacy of that threat,(60) and 3) the taxonomy of the proposed species.(61) If the magnitude of the threat to the continued existence of a species is high, then the USFWS will give it a ranking between one and six, or if it is moderate to low, then the USFWS will give it a ranking between seven and twelve.(62) To further refine the priority number within the bounds set by the magnitude of threat, imminently threatened species which face "actual, identifiable, threats" have priority over those for which "threats are only potential" or non-imminent.(63) So, if a species has a high magnitude of threat (a number between one and six), but the threat is non-imminent, its ranking will lie between four and six, whereas if the threat is imminent, the ranking win lie between one and three.(64) Taxonomy finally determines which of the remaining three possible ranking numbers will be assigned to the species. In recognition of the importance of "maintenance of ecosystem diversity"(65) species belonging to a monotypic genus have priority over species from multi-speciated genuses, which in turn have priority over populations and subspecies, which are equally weighted. A species facing a high magnitude (between one and six), non-imminent threat (between four and six) that belongs to a monotypic genus will receive a priority ranking of four, if it belonged to a multi-speciated genus, then it would have a ranking of five; or if it belonged to a subspecies, it would have a ranking of six.(66) The determination of these three criteria establishes a candidate species's priority number, which determines what listing priority it will have relative to other candidate species.

Congress created the "warranted but precluded" category primarily in recognition of the fact that financial constraints can make compliance with the stringent listing requirements and deadlines nearly impossible at times.(67) A "warranted but precluded" decision means that the species Will not currently be proposed for listing, even though biologically it warrants a proposal.(68) Congress meant for the USFWS to use this category as an escape door to postpone proposals for species with less priority for a short time until the Agency can catch up with the backlog.(69) The USFWS has a two-part burden to meet to prove that it is appropriate to put a species in this category. First, it must show that it is working on other listing or delisting proposals, and second, it must show that it is making "expeditious progress" towards a final decision on those other proposals.(70) Further, the USFWS has a duty to consider a "warranted but precluded" finding each year as a resubmitted petition that "presents substantial scientific or commercial information that the petitioned action may be warranted."(71) Finally, Congress authorized judicial review of the Agency's "warranted but precluded" findings where the court will be "called on to separate justifications grounded in the purposes of the Act from the foot-dragging efforts of a delinquent agency."(72) This access to judicial review has been crucial in overturning obviously flawed USFWS listing decisions.

C. 1996 USFWS Priority Guidelines

Recently, the ESA has hit rough waters. Certain congressional members have targeted the ESA as an anti-development statute that Congress must reform.(73) Congress desires to soften the impact of the Act's "extreme" protection measures for a variety of "lesser-known birds, rodents, and insects" which have prevented property owners from "lawfully" using their land,(74) despite growing evidence of a lack of correlation between the number of species listed in a state and its economic vigor.(75) The ESA awaits reauthorization,(76) which means that Congress can completely rewrite the ESA if it so chooses, and thus weaken the effects of perhaps our most crucial wildlife protection law. In order to call a "time-out" from implementation of the Act while it awaits reauthorization,(77) on April 10, 1995, Congress passed an appropriations bill which rescinded $1.5 million in funding previously mandated for final listing determinations under the ESA for that fiscal year, and forbade any of the other funds from being used for "making a final determination that a species is threatened or endangered ...."(78) This essentially acted as a total moratorium on new listing decisions. Congress continued the moratorium until April 26, 1996, through a series of continuing resolutions.(79) Finally, President Clinton waived the listing moratorium in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 which restored four million dollars for the rest of 1996 for listing determinations.(80) The ESA listing budget for fiscal year 1997 was five million dollars.(81) The ESA will certainly be reauthorized, but nobody is quite sure how the Act will appear in its new form.

Problems arose when the listing moratorium finally ended in the middle of 1996. The USFWS was given a budget of four million dollars for the rest of the fiscal year,(82) but it faced a huge backlog of listing proposals. The USFWS modified the 1983 Guidelines by creating the 1996 Guidelines which prioritized types of listing activities. Under the 1996 Guidelines,(83) the USFWS said that it would first process emergency listings for species that face an imminent risk of extinction under the emergency listing provisions of section 4(b)(7), under the Tier 1 category.(84) Second, it would make final decisions on the 243 species proposed for listing, under the Tier 2 category.(85) Third, the USFWS would process all other listing actions under the Tier 3 category, which is titled "All Other Listing Actions, Including Processing Reclassifications and Delistings, New Proposed Listings, Petition Findings, and Critical Habitat Designations."(86) Therefore, new proposals for candidate species automatically fen under the Tier 3 category, and would only be considered after the USFWS processed all of the already proposed species.

Between April 26, 1996, when President Clinton lifted the moratorium, and December 5, 1996, the USFWS listed 89 of the 243 species proposed for listing.(87) This still left 151 proposed species listings(88) awaiting a final rule with a listing budget of five million dollars for 1997,(89) so the USFWS decided to continue using the 1996 Guidelines through the first part of fiscal year 1997, with the slight change that addressing candidate species would take precedence over critical habitat designations and delistings.(90) The USFWS wanted to get the number of listing proposals down to a manageable 90-110 species before it started equally addressing the candidate species.(91) As of December 5, 1996, the USFWS had 184 warranted candidate species awaiting listing proposals, and the USFWS had assigned priority numbers under the 1983 Guidelines to many of them of one, two, or three--meaning both a high magnitude and imminent threat of extinction.(92) These species still faced an indeterminate wait as candidate species before they could garner federal protection.(93) because they were in a lower priority tier under the new 1996 Guidelines. Essentially, this was a USFWS self-imposed listing moratorium on candidate species.(94) The Service figured that by April 1, 1997 it again would equally consider all activities, except for delistings and critical habitat designations.(95)

D. Past Political Influences on USFWS Listing Activities

Political commentators, direct agency admissions, observed agency behavior, and judicial rulings all demonstrate that politics have historically played a role in directing USFWS listing activities. Since the inception of the ESA, the USFWS has tried to avoid highly political confrontations. For example, as early as 1978, a General Accounting Office (GAO) report criticized the USFWS for its political footdragging.(96) The report showed that the USFWS often delayed listing species when confronted with political conflict. This pattern of the USFWS being affected by political pressures is corroborated by other evidence as well.

Steven Lewis Yaffee, a political commentator, described political influences on pre-1982 USFWS listing decisions.(97) He focused on a 1977 USFWS decision to wait a year to publish a final endangered finding for the furbish lousewort after the USFWS had made all of its final biological determinations. He credits the delay to the USFWS desire not to list the species because it was only found in an area that was going to be inundated by the Dickey-Lincoln Dama.(98) As direct evidence of its consideration of politics, the USFWS focused attention on the potential conflict of listing the plant in the published listing materials and concurrently held up listings for twelve other plants that were proposed at the same time. Yaffee argues that "[t]he lousewort case suggests that the administrative process breaks up into a hierarchical procedure in which political considerations are increasingly incorporated at higher levels of the bureaucracy."(99)

In another clearly political move, Yaffee points out that the USFWS allowed the continued hunting of grizzly bears with nothing more than a state permit after they were listed in 1975, under the theory that such hunting was needed to relieve population pressure within the Northern Continental Divide Ecosystem (NCDE).(100) However, the facts showed that the number of grizzly bears had dwindled,(101) and that the continued hunting of such a depleted population was unwarranted. Moreover, the 1975 regulation which allowed the hunting of grizzly bears was challenged in 1991.(102) The court held that none of the reasons given by the USFWS supported its theory that the hunting was required to reduce population pressures, and the court ordered an injunction on any more hunting of grizzly bears.(103) Clearly, the USFWS had made concessions to the trophy hunting lobby, an affluent and politically well-connected group, to allow ongoing hunting.(104) Even the United States Council on Environmental Quality (CEQ) had strong objections to this exception to the listing, and stated that such hunting was only appropriate as a last ditch method at population control, which this obviously was not.(105)

Perhaps the most vivid past example of politics influencing USFWS listing decisions was the Agency's reluctance to list the northern spotted owl. The spotted owl is a species that depends upon northwestern coniferous old-growth forests for its survival.(106) In the 1980s, evidence suggested that if the United States Forest Service (Forest Service) continued to allow its "sustained yield practice" of harvesting even-aged trees in all Western coniferous forests every 70-120 years,(107) few forests would reach the 200 year old-growth age required for the spotted owl's survival.(108) This directly put protection of the owl at odds with the Forest Service's goals of managing forests for logging purposes in the Pacific Northwest. However, the Forest Service faced a difficult situation because stricter logging regulations would cut into existing government timber company contracts for access to public lands. One estimate put the loss of state revenues in closing down access to a old-growth forests in Oregon and Washington at $1.96 billion.(109)

In January 1987, Greenworld, an environmental organization, petitioned the USFWS to list the whole northern spotted owl species as endangered pursuant to ESA section 4(b)(3). In August 1987, twenty-nine environmental groups petitioned the USFWS a second time to list as endangered the owl populations found only in the Olympic Peninsula and the Oregon coast range.(110) The USFWS denied these petitions and tried to arrange "informal" protections for the owl in conjunction with the Forest Service, the Bureau of Land Management (BLM) and the National Park Service (NPS).(111) In 1988, several environmental groups filed a lawsuit(112) to force the USFWS to list the species based partly on the grounds that the USFWS considered factors other than just scientific data, such as economics.(113) The court found that the USFWS had acted contrary to law and recognized that "the Service disregarded all the expert opinion on population viability, including that of its own expert, that the owl is facing extinction.... [I]nstead [the USFWS] merely asserted its expertise [to] support [ ] its conclusions [that listing is not warranted]."(114) In other words, the USFWS decided not to list the species without giving any explanations, in spite of the fact that a large body of scientific data supported the listing of the imperiled owl. Politics seemingly played a large part in discouraging the Service from listing the owl.

Recently, the USFWS has acknowledged the influence of public opinion and pressure in its management of the candidate species list which it maintains.(115) Before February 1996, the USFWS classified candidate species into the following three categories: 1) Category 1 (C1) species that had "substantial information" to warrant a listing proposal, 2) Category 2 (C2) species that did not have sufficient information to warrant a proposal, but the information generally indicated that a proposed listing might be appropriate, and 3) Category 3 (C3) species that were once considered for listing but are no longer under such consideration due to "persuasive evidence" of extinction, evidence of non-distinctiveness of taxa, or evidence showing greater abundance than previously thought.(116) Currently the candidate species list only includes species previously considered C1 species. The USFWS defines these as species "for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list but issuance of the proposed rule is precluded."(117) All of these candidate species are given priority numbers,(118) and all "warranted but precluded" species are put into this group.(119) However, this group does not appear to be exclusively "warranted but precluded" species.

In 1988, Congress grew concerned about the mounting number of candidate species. At the time, the USFWS identified 950 C1 species,(120) and Congress estimated it would take the Service twenty years to list them all.(121) In the 1988 amendments to the ESA, Congress created stricter laws to speed up processing of candidate species by the USFWS and gave more protection to the candidate species while they were awaiting consideration.(122) Current protection for candidate species includes a congressional duty for the Service "to implement a system to monitor the status of candidate species" and to use the emergency listing provision when, "as a result of the monitoring, it is determined to be appropriate to prevent a significant risk to the well-being of any such species."(123) Also, the USFWS has a congressionally imposed duty to publish "comprehensive notices based on a regular review of status surveys."(124) Finally, the Service routinely considers impacts on candidate species when approving ESA section 10 Habitat Conservation Plans (HCPs)(125) and in section 7 agency consultations.(126) Other agencies also consider impacts on candidate species when doing National Environmental Policy Act (NEPA) analyses.(127) Therefore, candidate species in many ways do receive direct protection from the USFWS due to their imperiled status.

In addition to direct agency protection, the candidate species list gives notice to "state and federal agencies, private conservation organizations, private landowners, and the scientific community" that a species might be listed in the future.(128) These notices can then be used as an "important land use planning and habitat protection tool[ ]."(129) Congress wanted the ESA to provide candidate species some minimal protection by broadcasting to the world the imperiled nature of the organism so that interested parties could take voluntary preventive measures to protect the species in the planning stage of new projects.(130) This advance notice followed by possible voluntary conservation actions helps fulfill the ESA mandate to conserve species and ecosystems by attempting to avoid potential species listings before such listings become an absolute necessity.(131)

Indisputably, candidate species, which include C2 species, receive considerable federal protection just from their status, due to the 1988 congressional amendments and other Service practices. However, influenced by political pressure once again, in February 1996, the USFWS eliminated the C2 species list,(132) which numbered more than 3,600 animal and plant species.(133) This decision stripped C2 species of the protection that they had been receiving from their formal recognition by the USFWS as candidate species. The USFWS acknowledged this loss of protection, but claimed that it had to revise the list because "[t]he old system led many people to the mistaken conclusion that the addition of thousands of species to the endangered list was imminent."(134) In other words, the Service feared that people would believe it was going to list many new species, and this concern took precedence over the cumulative benefit that those species received from being recognized as candidate species. The decision is especially startling considering the fact that no biological reason was ever given for this agency action,(135) and perhaps half of the species were at extremely high risk of extinction.(136) This move was due solely to political pressure, and taken together with the other above-mentioned evidence, it demonstrates that the USFWS has a long history of bowing to political pressure in its listing decisions.

III. WHAT'S WRONG WITH RECENT USFWS LISTING ACTIVITIES

The consideration of economics and politics was expressly prohibited by Congress, and thus it is illegal for the USFWS to use such factors to list a species.(137) However, the apprehension of political controversy and conflict appears to continue to influence listing decisions, despite the inappropriateness of these consideration in the listing context. Recently, the USFWS has avoided listing controversial species and has slowed down the rate of new listings.(138)

A. The Plight of the Imperiled Bull Trout, Canada Lynx, Barton Springs Salamander, and Alabama Sturgeon

Recent cases brought by environmental groups to force listings of various species illuminate the Service's misapplication of the congressional mandate to protect endangered species, through its consideration of political and economic factors. Analysis of these cases gives some insight into the inner workings of the USFWS. In lawsuits which challenged the USFWS decisions not to list the bull trout,(139) the Barton Springs salamander,(140) and the Canada lynx,(141) judges ruled that the Agency had acted contrary to federal law when it decided not to list these species.(142) The highly imperiled nature of these majestic species who were struggling for survival and the improper agency behavior as exposed by federal judges provides a vivid and stark picture of the political mechanisms that have undermined the full implementation of the Endangered Species Act (ESA).

United States-based bull trout (salvelinus confluentus) are found in freshwater streams in the western states of Washington, Alaska, Montana, Idaho, Nevada, and Oregon, and have both migratory and resident life history forms.(143) Just how imperiled is the bull trout? A 1994 USFWS Findings Memorandum (1994 Findings)(144) described two major reasons for the decline of the bull trout. First, the Service determined that most bull trout populations now live in isolation, having lost their crucial migratory life history forms due to stream habitat alterations.(145) This puts the species at extreme risk of extinction, because it needs the migratory form in order to interchange genetic materials between populations and to recolonize locally decimated populations.(146) Second, the USFWS found that "[v]irtually every bull trout population within the conterminous United States is threatened by a wide variety of land and water management practices"(147) which cumulatively cause "habitat degradation, hybridization, isolation, and overutilization," thus impairing metapopulation functioning.(148) Even the few remaining "healthy" bull trout populations are at risk as habitat fragmentation and degradation continues.(149) The Service identified forest management practices, such as logging and road building, as the primary causes of bull trout population decline due to "increased sediment production and delivery to streams, reduced streamside canopy closure, increased stream temperatures, and reduced woody debris recruitment."(150)

The timber industry has complained that the bull trout's "addition to the endangered species list could bring new federal controls to about 100 million acres of state, federal and private land .... That's more than twice the 30 million to 40 million acres of land affected by the northern spotted owl."(151) The bull trout's requirement of pristine riparian habitats and its widespread distribution across areas in the northwestern states, areas traditionally used for logging, grazing, and power generation from dams,(152) highlights the political nature of USFWS avoidance of an ESA listing. This controversy is similar in nature to the one faced by the Service when it decided not to list two other widespread, northwestern, old growth forest species: the marbled murrelet and the northern spotted owl.(153) Environmental groups finally forced the USFWS to list both of these obviously imperiled species,(154) but not before many months of political debates, demonstrations, and lobbying by both the pro-listing environmental coalition and the anti-listing business and political coalition.(155) A bull trout listing seems to confront the USFWS with the same difficult political quagmire as those two previous listings.

The plight of the United States population of the Canada lynx (felix lynx canadensis) is another sad story. The lynx is a medium-sized cat that lives in "open, mature conifer forests."(156) These forests are vital to the lynx because they include the downed snags which provide a home for the lynx's main prey: the snowshoe hare.(157) Many studies have shown that the lynx population closely follows the snowshoe hare population, so that when hare population numbers plummet, so do lynx population numbers.(158) The lynx population in the lower forty-eight states has "declined dramatically" because of habitat degradation, trapping, logging, road building, and other developments.(159) As early as twenty years ago, the Service noted that the lynx has been "totally extirpated in 15 of the 30 states ... in which it originally [was] thought to have occurred"(160) and the current U.S. population may only be a couple of hundred individuals.(161) Its widespread range extends from Maine to the Northern Rockies and Pacific Northwest,(162) and its need for old-growth forests once again highlights the controversy over its listing. In April 1994, various conservation groups petitioned the Service to list the lynx as threatened or endangered as a distinct population segment(163) located in the lower forty-eight states.(164) On December 27, 1994, the Service refused to list the lynx,(165) which prompted the Defenders of Wildlife lawsuit.(166)

However, politics have the ability to modify the Service's listing behavior even when a potential species listing would have only local impacts. The Barton Springs salamander (eurycea sosorum) is a small aquatic salamander that is only found one place on earth, in Barton Springs in Zilker Park in Austin, Texas.(167) A USFWS proposed "endangered listing" rule in 1994 identified the primary threat to the salamander as "contamination of the waters that feed Barton Springs due to the potential for catastrophic events (such as petroleum or chemical spills) and chronic degradation resulting from urban activities."(168) Other concerns included the possibility of less groundwater due to increased withdrawals and increased disturbances to the surface habitat of the salamander.(169) Further, in 1996, the Southwest Regional Office of the USFWS labeled the salamander "as the most endangered among species deemed to face imminent, high magnitude threats in Texas, New Mexico, Arizona, and Oklahoma."(170) However, intense political pressure to the proposed listing followed, culminating in the Governor of Texas writing a letter to the Secretary and the USFWS "expressing deep concerns because the proposed action by the federal government may have the potential to impact the use of private property."(171) The USFWS noted in the summary of the recommended final listing rule the existence of the opposition to the proposed listing by the governor, as well as opposition from state and local agencies and the development community.(172) In a judicial challenge by Save Our Springs to the Service's withdrawal of the proposed salamander listing,(173) Judge Lucius D. Bunton III, a Texas district court judge, found that "strong political pressure was applied to the Secretary to withdraw the proposed listing of the salamander."(174)

Finally, the Alabama sturgeon (scaphirhynchus suttkusi) also represents a quickly dying species that calls out for immediate protection. The sturgeon was first described in 1991 as perhaps "the rarest unprotected fish species in the United States."(175) The fish "inhabits only the Alabama, Tombigbee, and Cahaba, River systems in Alabama,"(176) and habitat destruction and river contamination have decimated its population numbers.(177) Friends of the Alabama Sturgeon and the Biodiversity Legal Foundation (BLF) petitioned the USFWS for an emergency listing of the species. (178) However, a strong coalition of state agencies and river industries took up arms against the petitioned listing, and the coalition advertised to the world that "[it] intended to use [its] case against the Alabama sturgeon as a form to air [its] complaints against the ESA."(179) Through political lobbying, public hearings, a lawsuit, and hired-gun biologists who disputed the scientific findings of the USFWS biologists, the coalition managed to politically pressure the USFWS into not listing the species.(180) In 1994, the USFWS declared the sturgeon species "probably extinct," and said that "it should not be placed on the endangered species list."(181) The USFWS made this ruling despite the discovery of a living individual during the administrative review period of the listing proposal.(182) The Service continues to support this ruling even though a handful of individuals has been discovered since 1994.(183) To conclude, an examination of these case studies highlights how and why the USFWS has improperly considered politics in its listing decisions that deny ESA protection for biologically imperiled species.

B. Mechanisms of Misapplication of the Law

The USFWS has at various times considered politics and economics in its listing decisions through a number of mechanisms. Some of the most significant mechanisms are 1) placement of politically-charged species indefinitely in the "warranted but precluded" category through the use of its vague 1983 Guidelines,(184) 2) improper avoidance of emergency listings, 3) promulgation of a possibly illegal, self-imposed listing moratorium through its 1996 Guidelines, 4) slowing down the pace of new listings, and 5) improper use of the five statutory listing criteria. Through the use of these seemingly legal mechanisms, the USFWS has been able to inappropriately consider political factors while averting public scrutiny. However, various recent cases and Agency patterns illuminate the Service's questionable behavior and the political forces that influence that behavior.

1.Poorly Defined Priority Standards in the 1983 Guidelines Allow the USFWS to Consider Political Factors

Species listed under the ESA must first receive a priority ranking from the USFWS,(185) so the establishment of the priority ranking number has paramount importance in deciding which species gain protection. Congress had the foresight to realize that any agency put in the Service's position would be at the center of intense political pressure and tried to buffer the USFWS from those influences in the 1982 amendments by mandating that the USFWS only consider biological factors when it assigns priority rankings.(186) However, the USFWS has created a vague priority system which continues to allow political pressures to influence decisions.

An examination of how the USFWS uses the 1983 Guidelines shows the high level of discretion the scheme gives to the USFWS to consider political factors. In the 1983 Guidelines, the factors given the most weight in setting the priority number of each candidate species are the magnitude and immediacy of the threat of extinction to that species.(187) Significantly, the USFWS poorly defined these criteria and gave no threshold levels that dictate when the Agency must find that a certain magnitude of the threat is either high or moderate, or when a certain immediacy of the threat is either imminent or non-imminent.(188) The USFWS has incredible flexibility to justify whatever priority number it wants to give to a species because of the uncertainty of where the line should be drawn between different levels of threat. The USFWS, as a wildlife regulatory expert agency, should have discretion to apply its expertise in choosing the most meritorious species to list or delist; however, when the standards used by the USFWS are so nebulous that they seemingly allow the avoidance of species listing for political reasons--something not allowed under the ESA--then the system needs reform.

The deceptive use by the USFWS of the priority criteria in the bull trout "warranted but precluded" finding shows how the Agency uses these standards to avoid listing politically charged species even when the weight of biological data supports such an action. Despite the strong findings of possible future extinction for the bull trout, the USFWS only gave the bull trout a priority ranking of nine.(189) The Service claimed that the magnitude of threat to the bull trout was imminent but moderate due to "its widespread range, the existence of populations in protected areas, and ongoing management changes (e.g. Forest Plan[s]) that are expected to benefit some populations."(190) Since the Service was only "giv[ing] priority" to species with priority rankings of one through six at the time, the listing of the bull trout was found to be warranted, but precluded by "other higher priority listing actions."(191) If the USFWS had found that the species faced a high magnitude of threat, then the priority number would have been three, and the Service would have been required to propose the species for listing.

Friends of the Wild Swan, Inc. and the Alliance for the Wild Rockies, Inc. sued(192) to set aside the Service's priority ranking determination of the bull trout as arbitrary and capricious. Judge Robert E. Jones of the U.S. District Court of Oregon held that the Agency's finding of a moderate magnitude of threat was arbitrary and capricious(193) and remanded the case back to the USFWS to reconsider its priority number determination.(194) Judge Jones used the Administrative Procedure Act (APA)(195) standard of review where a decision is arbitrary and capricious if the Agency

has relied on factors which Congress ha[d] not intended it to consider,

entirely failed to consider an important aspect of the problem, offered an

explanation for [the Agency's] decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.(196)

The court ruled against the USFWS because the Agency's own record, which showed great danger to the continued existence of the bull trout, contradicted its finding of a moderate magnitude of threat.(197) Further, the court found that none of the three reasons given by the Agency justified lowering the magnitude of that threat from high to moderate. The fact that the species was both widespread and found in protected areas did not lower the magnitude of the threat since the Service had strongly pointed out that it was not necessarily loss of habitat that doomed the isolated populations, rather it was the loss of the migratory life form.(198) Judge Jones found that the Service's reliance on other agencies' future potentially beneficial land management plans was also inappropriate because the USFWS must "base listing decisions upon the analysis of existing threats"(199) rather than upon "speculations as to the future effects of another agency's management plans."(200) As such, Judge Jones reminded the USFWS of the explicit language of the ESA which forbids reliance in listing determinations upon efforts of other federal agencies to protect a potential listee.(201)

The case of the bull trout might result in much needed federal protection for a greatly imperiled fish.(202) Sadly, the holding will not help to force the USFWS to set more explicit standards for different levels of threat in its priority system; the Friends of the Wild Swan, Inc. and the Alliance for the Wild Rockies, Inc. simply caught the USFWS in a clear contradiction. Jack Tuholske, one of the lawyers who brought the bull trout case, believes that the "warranted but precluded" category win not go away because of this case, but that the USFWS will "have to be more careful" in the future.(203) In other words, this holding may not force the USFWS to follow the law better; in actuality, it may merely result in the USFWS being more cautious in the reasons it gives for future listing decisions.

The political nature of "warranted but precluded" determinations is disturbing because meritorious species often wait a long time in the "warranted but precluded" category before they are finally listed. In 1992, the General Accounting Office (GAO) found that 114 species had been designated as "warranted but precluded" for two or more years since the category was created in 1982.(204) Seventy-seven of the species still awaited a listing proposal when the study was done in 1991, and eighty-five species had lingered in the category for five or more years before either the USFWS acted upon the petition or the GAO study was completed.(205) Applying the understanding garnered from the bull trout case into the pliability of the USFWS priority system, and considering the mass number of historical "warranted but precluded" findings, the degree to which political and economic considerations could have influenced USFWS listing decisions is startlingly large.

A recent stipulation of agreement between Fund for Animals, Inc. (FFA) and the USFWS (FFA Stipulation)(206) provides some protection against improper economic and considerations in the priority-setting process. In 1992, under threat of a massive lawsuit by various environmental organizations, the USFWS agreed to process over 400 candidate species by September 30, 1996.(207) However, the moratorium(208) and 1996 Guidelines(209) prevented the completion of the settlement by the USFWS, and approximately eighty-five species still remained to be considered when the 1996 Guidelines were adopted.(210) In 1996, the Service, represented by the United States Department of Justice, filed a motion in the United States District Court for the District of Columbia under Rule 60(b)(211) to vacate the settlement, claiming that the government had no further obligation with regard to the remaining settlement species.(212)

On August 19, 1996, Eric Glitzenstein, the lawyer for FFA, filed an opposition against the Service's motion and sought to enforce the settlement against the USFWS.(213) District Court Judge Stanley Sporkin ordered the parties to settle the matter(214) and sent the parties to a magistrate to mediate an acceptable resolution.(215) As a result of these negotiations, on January 30, 1997, the parties filed a stipulation of agreement which set a new deadline for the consideration of the settlement candidate species.(216) Most importantly, Glitzenstein was also able to get the USFWS to agree to greater public review of its priority setting activities. In the FFA Stipulation, the USFWS agreed to make "listing priority forms" and "listing priority determinations for proposed species ... available within a reasonable time to the general public upon request."(217) This should help encourage greater public review of the USFWS priority setting decisions to better assure that they are biologically based.

2. USFWS Avoidance of Emergency Listings

Congress has stressed the importance of the emergency listing provision to the proper functioning of the ESA. In the 1988 ESA amendments, Congress explicitly stated that the USFWS is to monitor all candidate species and use its emergency listing authority to "prevent a significant risk to the well-being of any such species."(218) Arguably, this mandates two duties to the USFWS: 1) to monitor candidate species, and 2) to emergency list them at a certain point of endangerment. However, the USFWS has poorly followed both of these congressional requirements.

The Service has continually denied critically imperiled candidate species this important congressionally-mandated emergency listing protection. Despite the strong 1988 congressional mandate to use its emergency listing authority, the USFWS has actually decreased its use of the provision since then. From 1980 through 1988, the Service listed ten species under the emergency provisions.(219) From 1988 through 1995, the Service listed only six species under the emergency provisions.(220) Since 1995, the Service has not listed a single species under the emergency listing provisions, despite giving highest priority to emergency listings under the 1996 Guidelines.(221) In pad, the USFWS can escape emergency listing species because the Service has never defined a "significant risk to the well-being" of a species. This lack of standards and criteria gives the Service the ability to draw the line wherever it wants on a case-by-case basis.(222) Surely, the USFWS cannot argue that there are no species that currently warrant emergency listing when evidence suggests that extinctions in the United States continue at an unprecedented rate.(223)

Furthermore, the USFWS does not appear to even monitor candidate species for possible emergency listings. First, the USFWS has recently cut a large portion of its candidate list.(224) For the USFWS to monitor or consider for emergency listing ex-C2 species, many of which were highly imperiled, it must receive a new petition from an interested party.(225) Second, the Service has also shown no indication that it monitors currently recognized candidate species for possible emergency listings. The Service publishes in the Federal Register "reviews of plant and animal taxa that are candidates for listing" in order to identify candidate species to the public, to "request additional status information," and to "help the Service monitor changes in the status of candidate species."(226) However, the USFWS does not say that it will emergency list those species at significant risk or identify candidate species that might be eligible for an emergency listing, nor does the USFWS define any standards by which to emergency list them. Therefore, it appears that the Service is not even monitoring those species that are maintained on the candidate list for possible emergency listing. Once again, this appears to be in contradiction to Congress's desire that the Service monitor the candidate species in order to determine whether to emergency list them.

Interested parties continually petition the USFWS to emergency list gravely imperiled species, but the Service chooses not to respond to these petitions. The California mountain yellow-legged frog is an excellent example of a species that warrants emergency listing, but one that the Service has continually denied protection. Petitioned in July 1995,(227) the Service refused to list the yellow-legged frog as a Tier 1 emergency listing under the 1996 Guidelines, even though a National Biological Survey scientist found that the amphibian's eight remaining populations included fewer than ten frogs each.(228) Further, the species' habitat of Southern California streams in the San Gabriel Mountains and tributaries of the San Jacinto River system face immediate disturbance threats from placer mining, water draw for ski resorts, road construction, off-road vehicles, camping, and recreation.(229) Possible political pressure comes from the fact that the listing of this species will prohibit or limit many of these important economic activities.

To force the Agency to either list the species under the emergency listing provision or to consider the species despite the 1996 Guidelines bar (since the frog was a candidate species, it fen under a Tier 3 activity, which meant that the Service could not begin processing the petition until April 1, 1997),(230) Biodiversity Legal Foundation (BLF) brought suit against the Secretary and the USFWS in the U.S. District Court in Washington, D.C.(231) The court found that the Service had no reason not to consider the listing petition. Therefore, the court set a date by which the Service had to make the 90-day ruling on whether the petition represented substantial information.(232) The court did not directly address the emergency listing issue, but did note the Agency's stalling behavior was illegal and the "[d]efendant's blaming their failure to act on a budget moratorium that ended almost one year ago is insufficient to relieve them of their statutory obligations under the ESA."(233) Clearly, with a population level of less than 100 individuals, the yellow- legged frog is the prototypical imperiled species for which the emergency listing provision was created.

Courts have already recognized the importance of the 1988 ESA amendments in imposing a duty on the Secretary and the Service to monitor and emergency list needy candidate species. The City of Las Vegas and land developers challenged the emergency listing of the Mojave Desert population of the desert tortoise as arbitrary and capricious under the APA. Upon losing in district court, the plaintiffs appealed to the District of Columbia Circuit.(234) The D.C. Circuit held that the Secretary could emergency list a species using less evidence and a less vigorous investigation than would otherwise be required under a normal listing.(235) Part of the authority cited to by the D.C. Circuit in its holding came from the 1988 amendments to the ESA. The court held that the Secretary, at least with respect to "warranted but precluded" candidate species, was to "shoot first and ask [all of the] questions later."(236) The court reinforced the congressional mandate that the USFWS monitor all "warranted but precluded" candidate species and emergency list the imminently endangered ones.(237)

The existence of the Agency's duty to monitor and emergency list endangered species was once again addressed in the lawsuit to list the bull trout.(238) The plaintiffs who challenged the priority ranking of the bull trout also challenged the denial of an emergency listing for the fish.(239) Judge Robert Jones applied the statutory language of ESA section 1533(b)(3)(C)(iii) and held that "Congress's use of `shall' indicates that it imposed a legal duty--not a discretionary power--upon [the US]FWS"(240) to use the emergency listing authority in regard to "warranted but precluded" candidate species. Judge Jones further held that "[the USFWS] duty to consider emergency listings is now part of the petitioning process."(241) In other words, Judge Jones established that a petitioner need only submit a petition for normal listing to commence the Service's duty to consider the species for emergency listing. Since the USFWS had not given any reasons why it denied the petition to emergency list the bull trout, Judge Jones held that the USFWS was arbitrary and capricious in light of the heightened duties towards "warranted but precluded" candidate species.(242) This holding has huge legal implications because it arguably forces the USFWS to view each petition as a petition for emergency listing as well. Further, each time the Service automatically reconsiders the priority status of the previous year's "warranted but precluded" candidate species, the Service should also reconsider those same species for immediate emergency listing. This holding may create a larger legal duty on the USFWS to monitor and "emergency list" imperiled species, which might force the Service to make more emergency listings.

To conclude, candidate species can only get federal protection through an emergency listing or a formal listing proposal. The practical effect of the Service's recent reluctance to use the emergency listing provision is to remove one of the most important pathways for an imperiled candidate species to gain federal protection. Without an affirmative duty to monitor and "emergency list" highly imperiled species at a certain defined critical point, the USFWS can indefinitely maintain species in regulatory limbo as a "warranted but precluded" candidate species by using its priority guidelines.(243) Even though there are no assurances of recovery of a listed species, USFWS may be able to help the mostly highly imperiled species evade immediate extinction through greater use of the emergency listing provision. This conclusion finds merit in evidence suggesting that by 1990, as many as 300 species had already gone extinct while awaiting ESA protection.(244)

3. The FFA Settlement and Stipulation: Evidence that the USFWS Has Slowed the Rate of Species Listings

Evidence suggests that the USFWS has not been diligent in listing species at the maximal rate possible. The Fund for Animals, Inc. (FFA) settlement(245) provides a great example of both the past unwillingness of the USFWS to list species and its ability to speed up the listing rate if it so desires. The effect of the 1992 settlement, which required the Service to process 400 candidate species by September 30, 1996, was dramatic. Between 1986 and 1991, the USFWS had listed an average of forty-four species a year.(246) However, between 1992 and April 10, 1995,(247) the USFWS listed an average of eighty-nine species a year.(248) Arguably, part of this incredible increase was due to a funding increase,(249) but the fact that more money was appropriated to listing could have been a direct result of the Agency soliciting more funds to comply with the settlement.(250) The USFWS was on track to comply with all the terms of the agreement when the listing moratorium hit, which stopped the processing of approximately eighty-five of the settlement candidate species.(251) After the congressional listing moratorium was lifted, the 1996 Guidelines continued the candidate species listing moratorium, so the settlement candidate species remained stuck in place.(252) This seemed to be a political move by the USFWS to once again slow the listing process and to avoid listing many of the politically controversial settlement species that still remained on the candidate list, such as the Florida black bear.(253)

However, judicial action has once again impelled the USFWS to consider these species. The recent FFA Stipulation mandates a new timetable for the consideration of the rest of the candidate species.(254) The Stipulation requires the government to make listing decisions on forty-one of the remaining candidate settlement species with priority numbers of two or three by no later than April 1, 1998.(255) The USFWS will then consider another forty-three species by December 31, 1998 according to rankings established under the 1983 Guidelines.(256) Finally, the USFWS promised to process the listing candidacy for the Florida black bear by July 1, 1998.(257) Once again, this forces the USFWS to speed up its process of listing. Furthermore, the USFWS has said that it will fulfill these duties as long as it receives a yearly listing budget of five million dollars.(258) This is strong evidence that the USFWS can increase the efficiency and speed of its listing rate if it so desires, and that it has not been as diligent as it could have been in past efforts to list species.

4. USFWS Promulgation of the Possibly Illegal 1996 Guidelines

The 1996 Guidelines temporarily modified the 1983 Guidelines. It appears that the 1996 Guidelines were illegal because they prioritized species by type of activities,(259) rather than the biological needs of a species as ordained by Congress.(260) Also, the 1996 Guidelines ignored the judicial FFA settlement,(261) thus violating a court-made settlement.

In the 1982 ESA amendments, Congress strongly stated that the USFWS must create a "scientifically based" priority system.(262) This language seems to imply that the species that are most imperiled and in need of protection should be given primary consideration in listing activities, regardless of where they are in the listing process. The USFWS, in its 1996 Guidelines, has established a priority system based not on the biological needs of a species, but on administrative efficiency.(263) Under the 1996 Guidelines, already proposed listings which are Tier 2 activities take precedence over new proposed listings for candidate species which are Tier 3 activities.(264) The practical effect is that a species with less priority, but that had already been proposed for listing, could be given consideration over a candidate species with greater priority. This is disturbing, especially considering that as of December 5, 1996, 105 of the 184 candidate species had a USFWS-established listing priority number of one, two or three.(265) The promulgation of the 1996 Guidelines is illegal because the USFWS ignored the congressional mandate to first protect the most imperiled species.

The USFWS best source of authority to promulgate the 1996 Guidelines is based on the fact that it needed to focus its resources on final listings to fulfill the one-year duty to consider already proposed listings. However, there are two responses to this argument. First, Congress indicated that one type of listing activity should not take precedence over another. Congress mandated that the USFWS must, to the "maximum extent practicable," make a ninety-day "finding as to whether [a] petition presents substantial scientific or commercial information indicating" the listing of a species may be warranted.(266) In a 1982 house report, Congress said that consideration of a petition to the "maximum extent practicable" means that there is a lack of other "pending or imminent proposals to list species subject to a greater degree of threat."(267) This definition requires the USFWS to prioritize listing activities for petitioned species against listing activities for other species only by considering each species's relative threat of extinction. Second, the USFWS can properly use the "warranted but precluded" category to legally free up resources to concentrate on needier candidate species. As long as the candidate species has higher biological priority, and the USFWS can prove it is making expeditious progress to list species, then the USFWS can properly assign the lesser imperiled proposed species to the "warranted but precluded" category.(268)

In addition to the ultra vires nature of the policy of the USFWS to prioritize by type of activity, the 1996 Guidelines are also illegal because they disregard the important FFA judicial settlement.(269) The pro-cessing of candidate species was given a lower priority than final rulings for already proposed species, which meant the USFWS would not consider the remaining eighty-five candidate species specified in the FFA settlement before the judicially-imposed September 1996 deadline.(270) Many of those candidate species had extremely high listing priority rankings and were in need of immediate protection.(271) To further support its policy, the USFWS appealed to the United States Department of Justice (DOJ) to "seek appropriate relief from the courts to allow the highest priority proposed species to be processed . . . consistent with the provisions of [the 1996 Guidelines]."(272) Essentially the USFWS was asking DOJ lawyers to request that the court modify the settlement so that FFA could not enforce it against the USFWS.(273) District judge Stanley Sporkin recognized that the Service was just "walking away" from its settlement responsibility, and expressed his displeasure at such behavior.(274)

Another example where a court acknowledged the illegality of the 1996 Guidelines occurred when the District of Columbia district court admonished the Service for using a listing moratorium that expired over a year ago to avoid a ninety-day finding on the petition to list the yellow-legged frog.(275) Based on these judicial rulings, the USFWS should have been aware that the 1996 Guidelines were in direct conflict with the Service's statutory listing duties.

To the credit of the USFWS, it finally agreed to process the remaining settlement candidate species in the FFA Stipulation. However, compliance with the original FFA settlement was greatly delayed due to the 1996 Guidelines. The FFA Stipulation assured that some needy candidate species would be processed over a two-year period; however, the illegal 1996 Guidelines remained in force at least until April 1, 1997, precluding consideration of many other needy species.(276)

5. Improper Use of the Five Statutory Listing Criteria

The USFWS appears to have misapplied the five listing criteria in order to allow politics to enter through the back door. In fact, several courts have recently castigated the Service for this very behavior. The ESA sets listing criteria for the Service to consider in its listing decisions,(277) but does not give much guidance in applying them. Once again, the Service has used this wiggle room at times to avoid listing controversial species. In making political "not warranted" findings, it seems like the Service has most heavily misapplied the factor which allows it to consider the existence of other regulatory programs to list a species.(278) At least three recent cases illustrate this abuse.

The Barton Springs salamander case provides a good model of how the Service has misused the listing criteria. The Service made an initial decision to list the species in 1994.(279) However, the Service purportedly considered a new conservation agreement with the State of Texas to withdraw the species from consideration under the guise that the new conservation agreement, as part of the Service's investigation of state regulatory mechanisms as allowed under the Act, "significantly reduces the risk to the species."(280) But the court noted two problems with the Service's reasoning. First, the Service had clearly highlighted the inadequacies of the existing state regulatory system in its original proposal to list the species.(281) However, the court found that the new conservation agreement neither addressed those regulatory inadequacies nor consisted of "tangible steps to reduce the immediate threat to the species."(282) Second, even if the conservation agreement was adequate, it was never exposed to public notice and comment and therefore could not adequately be relied upon.(283) In short, the court found that the "Secretary cannot use promises of proposed future actions as an excuse for not making a determination based on the existing record."(284) By relying on the agreement, which had no proven record, the Secretary had "considered political factors in making his decision."(285) This provides evidence that the Service considers speculative regulatory mechanisms to reduce the potential risk, when it is only authorized by the ESA to consider existing regulatory mechanisms. As a result, the Service does not list species that otherwise warrant protection under the other criteria.

The other examples of how the Service has misapplied the consideration of "existing regulatory mechanisms" criteria in making listing determinations(286) were the "not warranted" rulings that it made for the listing petitions of the Queen Charlotte's goshawk(287) and the Alexander Archipelago Wolf.(288) Both species live in Alaska's Tongass National Forest, which is managed by the United States Forest Service (USFS) under the Tongass Land Management Plan (TLMP). The Service found that the current TLMP inadequately protected both the wolf(289) and the goshawk,(290) which are both imperiled because of the "threatened destruction" of their old growth forest habitat from over-timbering, but still decided that the listing was not warranted.(291)

Environmental groups challenged both of the Service's "not warranted" listing determinations.(292) Because the Service used a similar analysis with both petitions, the court used a similar judicial analysis in each lawsuit. Judge Stanley Sporkin of the District of Columbia district court held that in both listing determinations, the Service misapplied the five listing criteria by violating the clear language of the ESA.(293) The ESA allows consideration of "existing regulatory mechanisms" in making a listing determination,(294) but the Service ignored the plain language of the statute and instead relied upon possible future proposed revisions and implementation methods of the TLMP that might benefit the two species.(295) Once again, it appears as if the Service was influenced by local and regional political pressures not to list these two species, largely because of the impact that the listing would have on the timber industry in Alaska. In support of the view that the USFWS improperly considered politics in these listing decisions, the court noted that the USFWS Alaska field office, during consideration of the proposed listing for the Alexander Archipelago wolf, circulated a briefing paper at a meeting which listed the "pros" and "cons" of a "not warranted" finding.(296) On the "pros" side, the Service found that such a ruling would be the "[l]east controversial option with agencies, industry, and the Alaskan delegation to Congress," while the "cons" side stated that such a ruling would not be "consistent with [the Service's] analysis of the" five listing criteria.(297) This demonstrates the Service's blatant consideration of illegal factors in this instance and highlights how it can misuse the five listing criteria to consider political factors.

C. USFWS Motive to Avoid Political Controversy

The exact political motives underlying the recent improper behavior of the USFWS in regards to listing activities are difficult to ascertain, but the current political balance of power at the federal level may provide some insight into those motives. The ESA continues to be a highly controversial statute which often pits conservation of a variety of organisms against the rights of landowners to use their land free of regulation.(298) The ESA has come under increasing attack by corporations, conservative members of Congress, and local landowners as a law that unfairly infringes upon their rights.(299) In order to protect the ESA from congressional weakening and to placate opponents, the current Clinton Administration seems to be avoiding new species listings that may ignite land use controversy.(300) The administrative structure of the USFWS has enabled the administrators in Washington, D.C. to modify listing decisions in order to fit their needs.(301) An analysis of the process of a USFWS listing decision gives insight into the top-down nature of these possible political influences.

The listing process first entails local field offices collecting scientific information and receiving comments. These offices then make an initial recommendation to a regional office.(302) The regional office reviews the record and makes a recommendation to the USFWS director in Washington D.C., who then makes the final "warranted" or "not warranted" decision.(303) Invariably, decisions to list a species made by local and regional offices are overturned by the National Director or national headquarters, possibly because of political considerations. Fortunately, this pattern is easy to recognize in the listing arena because the final decision to not list a species often directly counters the USFWS own agency record created by the local and regional offices. A great example of this dynamic can be seen in the USFWS decision not to list the United States portion of the Canada lynx.

In October 1994, the Region 6 USFWS office, after collecting data and evidence from the public and independent biologists, concluded that "[l]ynx habitat is currently being destroyed, degraded, and fragmented by a number of factors including timber harvest, fire suppression, road construction, and clearing of forests for urbanization, ski areas, and agriculture."(304) The office proposed that the United States-based Canada lynx population be listed since it met four of the five listing criteria.(305) Significantly, after the report was dispersed to all the regions, not a single USFWS biologist disagreed with the Region 6 recommendation to list the lynx.(306) However, the National Director made a conclusory finding that the lynx population did not merit listing.(307) District court Judge Gladys Kessler quickly tore apart the Director's reasons for not listing the lynx and held that the finding of the Service and the Secretary was arbitrary and capricious.(308)

It appears that because the centralized bureaucracy could not find easy loopholes to legitimately avoid the listing decision of the lynx, it relied on outright illegal methods. The Director concluded that the proposed rule "did not provide any conclusive evidence of the biological vulnerability or real threats to the species," a standard that Judge Kessler found to be in direct contradiction with the lower ESA standard of "best available data."(309) In addition, Judge Kessler found that the Director "ha[d] consistently ignored the analysis of [the USFWS] expert biologists as to each of the five statutory factors, basing [the USFWS] decision on unsupported conclusory statements as well as facts which [we]re directly contradicted by undisputed evidence in the Administrative Record."(310) This provides a stark example of how the centralized leadership of the USFWS can misdirect the listing activities of an agency which should be making listing decisions based on "science," not politics.

It appears as if the Clinton administrators in Washington, D.C. have decided not to list certain species because of the political controversy that would ensue due to dissent from congressional and state-level opponents. Glitzenstein argues that "the [A]gency is resorting to virtually every trick in the book not to go forward with listing[s], particularly [in regard to] controversial species that might affect land use decisions."(311) John Albright, head of the Atlantic Salmon Federation, says that the recent USFWS decision not to list the Atlantic Salmon was clearly political.(312) He believes the political incentive not to list species--especially controversial, widespread species--comes from the fact that the Act is up for reauthorization.(313) A recent article circulated by the Associated Press states that "the Clinton Administration increasingly is striking deals with states and private companies to protect fish and wildlife, ditching the Endangered Species Act as a regulatory club except in the most dire circumstances."(314) As documented by this article, the tragic consequences of the Clinton Administration's new direction have been the failure of the U.S. government to properly implement the ESA. Ironically, by allowing political pressure to prevent important species listings, the administration has accomplished the very evil that it hopes to avoid--the dismantling of the protection of the ESA for imperiled species.(315)

Whatever the motivation may be, the results are very clear: imperiled species are not receiving the dire protection that they deserve under the ESA. Politics have influenced the Service to 1) hide worthy species indefinitely in the "warranted but precluded" category through the use of undefined, nebulous priority criteria, 2) not use the vital emergency listing provision nor define the criteria necessary to emergency list, 3) slow the overall rate of listing of species, 4) create a self-imposed listing moratorium through the possibly illegal 1996 Guidelines, and 5) misapply the five listing criteria. The USFWS is an agency with the knowledge, conservation mandate, manpower, and political might to properly implement and enforce the listing provisions of the ESA. It is time that the USFWS correct its past mistakes, live up to its mandate as America's premier conservation organization, and become true stewards of our natural heritage through reformation of the listing process.

IV. CONCLUSION AND RECOMMENDATIONS: HOW To TAKE THE POLITICS OUT OF AGENCY LISTING DETERMINATIONS

The Endangered Species Act (ESA) is currently awaiting congressional reauthorization and no one is sure what changes will be made to the Act.(316) Even under a reauthorized ESA, the United States Fish and Wildlife Service (USFWS or Service) is likely to retain broad discretion in the construction of its priority system and in how it lists species. However, too much agency discretion, coupled with poor reviewability and undefined standards, has at times allowed political and economic influences to shape the listing activities of the USFWS. Recent legal proceedings, such as the bull trout, Canada lynx, and Barton Springs salamander litigations, and the Fund for Animals, Inc. (FFA) Stipulation, have been important in exposing these political influences and assuring that the USFWS follows the law as laid out by Congress. However, these judicial proceedings are not enough to reshape how the USFWS lists species, and countless hours and dollars are being wasted in courtrooms litigating agency listing decisions. The USFWS will ultimately have to make the tough decision to reform its delinquent listing behavior. The USFWS must take the initiative to reform its listing behavior to better conform with its federal mandate. It can take a number of immediate actions to assure that its listing decisions are based solely on the biological needs of species and to speed up the rate of new listings to reduce the large backlog of waiting species.

A. USFWS Should Recognize that Politics Influences Its Listing Decisions and Attempt to Limit the Impact of These Illegal Considerations

The evidence of intermeddling of political considerations in listing decisions is overwhelming. However, the Service has still never publicly acknowledged that politics affects or may affect its listing decisions.(317) As a preliminary requirement of reform, it is necessary that the USFWS recognizes the role of politics in past listing decisions and dedicates itself to reducing or eliminating consideration of such political factors in future listing decisions. Without an admission by the USFWS that it has considered politics in the past, it will continue to be difficult to separate politics from future listing decisions because of the cryptic manner in which politics can intermingle with agency decisions. The Service, as trustee of our biological wealth, should work in accordance with the laws of this country and the needs of the people, and should make listing decisions in the best interest of the voiceless myriad of imperiled organisms that depend upon the Service and the ESA for protection. If the Service is not properly serving its duty by modifying its species-listing behavior due to influence from developers, industrial leaders, and politicians, then a great injustice is being done to the American legal system, the American natural environment, and the countless environmentally concerned American citizens who have put their trust in the proper functioning of the American federal system, laws, and the USFWS.

B. USFWS Should Modify Its 1983 Priority Guidelines

1. Consolidate and Define Imminence and Magnitude of Threat

The USFWS has neither sufficiently defined the difference between imminence and magnitude of threat, nor has it set any sort of standards for either factor. These factors are incredibly significant since they are the two most influential considerations in determining the priority rankings of a species.(318) These nebulous standards may allow improper political and economic considerations to shape how the Service defines the threat to an imperiled species, and ultimately, to determine what priority ranking the Service gives a candidate species. Furthermore, the undefined standards give the Agency a great deal of latitude to justify errant listing decisions, thus making it extremely hard to detect political influences. Both the Fund for Animals, Inc. Stipulation and the bull trout ruling should make the USFWS more wary in using the 1983 Guidelines, but neither judicial action changes the malleable nature of the system to guarantee less future political tampering.

The Service should have only one factor that considers the type of threat to a species, perhaps calling it "level of risk" or "degree of threat." The Service can use levels of either magnitude or imminence of threat to a species to justify a determination that the species has either a high, moderate, or low degree of threat. Furthermore, the Service should define what factors could place a species in each of these different risk categories. These definitions need not be rigid, but can be qualitative standards that give the USFWS strong guidance. As such, these changes Will not abolish the Service's ability to make discretionary calls on how to prioritize species, in recognition that discretion plays an important role in how the Service fulfills its job. However, the changes will both focus that discretion by setting more concrete standards and minimize it by consolidating two highly subjective criteria into one better-defined criteria.

2. Ecosystem Factor

The priority guidelines of the USFWS must be redone to reflect current biological knowledge by including an ecosystem factor. Habitat destruction represents the primary menace to the dwindling natural biodiversity.(319) Habitat loss is rarely uniform across all types of ecosystems and often results in a greater threat to certain types of ecosystems than others. Both old-growth forests in the Pacific Northwest and natural grasslands throughout the United States have been almost completely wiped out.(320) A recent Defenders of Wilderness report found that hundreds of ecosystems are near their "biological breaking point" due to small sizes and the continued existence of high threat.(321) Laws must be created to concentrate protection efforts on the most endangered ecosystems.

Although many biologists and politicians now preach an ecosystem approach to conservation, creating laws that protect whole ecosystems is sometimes difficult. Ecosystems are defined as "collections of different species, interacting with each other ... set in [their] non-living or abiotic environment."(322) Ecosystems are amorphous, complex entities that are hard to define, hard to study,(323) and for which protective legislation is difficult to write and implement.(324) Some scientists argue that saving individual species, which the ESA does, still remains preferable over new ecosystem legislation.(325) They reason, among other things, that "species provide a more objective means of determining the location, size, and spacing of protected areas necessary to conserve biodiversity" than do less discrete ecosystems, and that "population declines of individual species ... may indicate the presence of stress to an ecosystem before it is obvious system wide."(326) Ecosystem protection legislation is clearly important and seems to be the future of environmental protection.(327) However, until more holistic legal approaches exist, the USFWS can intervene to efficiently protect endangered ecosystems by choosing the right species to protect.

The Environmental Defense Fund (EDF), in its comments on the proposed 1983 Guidelines, recommended an "ecosystem criterion" be incorporated into the guidelines.(328) Even at that time, the USFWS recognized the importance of "ecologically significant" groups, but refused to add an ecosystem criterion in the priority system because the "[ecosystem] information is seldom available at the time a species is considered . . . ."(329) The Service retained its power to consider "ecosystem importance" on an ad hoe basis.(330) But things have changed since the promulgation of the 1983 Guidelines; science has increased its knowledge about ecosystems,(331) and the Service has more strongly dedicated itself to conserving ecosystems.

The USFWS has recently repeatedly obligated itself to take an ecosystem approach to species protection. In 1994, the USFWS adopted an ecosystem approach for sections of the ESA.(332) The USFWS planned to make "[g]roup listing decisions on a geographic, taxonomic, or ecosystem basis where possible."(333) Also, a 1995 Endangered Species Bulletin said that "[t]he [US]FWS is increasing its efforts to think and act in terms of systems, relationships, and processes to recognize that, in some way, all things are connected"(334) and that it will address the "needs of larger, natural systems rather than concentrating on individual species. . . ."(335) Finally, as part of its settlement agreement with FFA, the "[US]FWS made an explicit commitment to pursue a `multi-species, ecosystem approach' to its listing responsibilities."(336) The time seems ripe for the USFWS to honor its new policy and put an ecosystem factor in its priority guidelines.

The following are classes of organisms that should receive higher priority under an ecosystem factor:

a. Keystone Species

A keystone species is one that plays a "crucial role within [a] community."(337) The loss of this species, on which many other species depend, may collapse the structure of the community and cause the extinction of the dependent species.(338) Conversely, protecting the keystone species protects the rest of the ecosystem. Pollinating insects, large fruit bearing trees, and wide-roaming predators are all examples of keystone species.(339)

b. Indicator Species

Indicator species are those species that are highly sensitive to environmental changes.(340) Protection of these species assures that an ecosystem will be free from pollution or adverse human modifications. Common examples of these species are freshwater invertebrates or fish, such as the bull trout, that are highly sensitive to water pollution or stream conditions.

c. Species Located in Rare or At-Risk Ecosystems

Species solely dependent upon rare, sensitive, or highly threatened ecosystems should receive priority as a means to protect the ecosystem. These species can be identified by determining if the type of habitat in which it lives belongs to one of a class of highly endangered, currently unprotected ecosystems. The vernal pool fairy shrimp exemplifies this sort of organism. Protection of the shrimp has resulted in protection of the highly imperiled California's Central Valley vernal pool ecosystem,(341) a natural wetland ecotype threatened by agricultural and grazing practices in the Central Valley of California.

d. Umbrella Species

An umbrella species is one that has either a large home range or a low population density.(342) Prioritizing endangered species with large home ranges maximizes the overall natural habitat area protected, thus maximizing the number of species protected.(343) The northern spotted owl is an example of an umbrella species because it has a both a wide range and low density.(344)

The benefits of incorporating an Ecosystem Factor can be numerous. First, it would be more cost effective for the Service because it would maximize the number of species protected per listing. This would mean fewer listings in the future through protection of ecosystems that house many declining species that have not yet reached critical population levels. This approach is in accordance with a report prepared by the National Academy of Sciences which studied the success of the ESA and noted that "[t]he expected rapid pace of new listings coupled with funding limitations places a premium on approaches that address the needs of different species simultaneously."(345) Second, recovery plans for ecologically significant species will normally benefit other listees or potential listees in the area, thus increasing agency efficiency and effectiveness per dollar spent in recovery of species.(346) Third, USFWS efforts would be more aligned with the ecosystem conservation goals mandated by its own mission statement, its current stated policy, the court mandate in the FFA settlement, and the goals of the ESA.

C. USFWS Should Increase the Number of Emergency Listings by Defining Standard and Better Monitoring Candidate Species

The USFWS must use the emergency listing provision more than it has in the past. Congress has expressed its desire that the USFWS monitor candidate species and emergency list them "to prevent a significant risk to [their] well-being."(347) However, the Service has never defined this standard, and as a result, has once again used a lack of discrete standards to allow politics to creep into its decisions,(348) as is the case with the use of the 1983 Guidelines. First, the USFWS should define "significant risk to the well-being" of a species because, without better defined standards, the Service will continue to use the provision in a political manner. Second, the Service should make emergency listing considerations a normal part of its candidate species monitoring review, as the 1988 congressional amendments mandated(349) and Judge Jones ordered in his bull trout ruling for "warranted but precluded" candidate species.(350) The Service should also give a short reason why each candidate species either does or does not meet the new emergency listing criteria. These changes would help assure that the Service properly uses the emergency listing provision.

D. USFWS Should Not Prioritize Listing Decisions by Activity Types

The USFWS should retract the 1996 Guidelines and pledge never to reinstate an equivalent listing priority guideline in recognition that such a guideline is ultra vires and not in the best interest of imperiled species. Congress only authorized the USFWS to prioritize by considering the biological needs of a species, not the type of listing activity.(351) The USFWS created a self-imposed listing moratorium on processing of candidate species, many of which badly needed protection.(352) The recent FFA Stipulation(353) has partly reduced the detrimental impact of the 1996 Guidelines, but a full retraction of the regulations, a promise to never reinstate them, and recognition of their illegality would be best for both the USFWS and proper implementation of the ESA.

E. USFWS Should Speed Up the Listing Rate by Requesting More Funds for Listing Determinations

Finally, it is vitally important that the USFWS has adequate funds to make all of the necessary listing determinations. The USFWS should request from either Congress or the current Clinton Administration an increase in appropriations for listing determinations, as well as more funds for other ESA duties.(354) These funds are necessary to assure the proper implementation of the crucially important ESA. An increase in funding, in conjunction with implementation of some or all of the previous recommendations, should increase the efficiency and effectiveness of the implementation of the listing portion of the ESA and should also increase the overall rate of species listings to better match the present extinction rate. These changes will result in greater protection of this nation's shared biological heritage, and will reduce the chance that politics will influence future listing decisions.

(1) Endangered Species Act of 1973, 16 U.S.C. [sections] 1533(b)(1)(A) (1994).

(2) Bruce Babbitt, Between the Flood and the Rainbow, in 62 Vital Speeches of the Day 281 (1996).

(3) Letter from Eric Glitzenstein, Attorney, Meyer & Glitzenstein, to Ivan Lieben (May 5, 1997) (on file with author). Mr. Glitzenstein is a Washington, D.C. lawyer who does Endangered Species Act litigation for various conservation groups.

(4) See generally MDNM Report Says 33 Percent of U.S. Species Endangered (National Public Radio broadcast, Jan. 6, 1996), available in 1996 WL 7992544 (interviewing the lead scientist of the Nature Conservancy study which shows that 33% percent of United States species are in danger of becoming extinct) [hereinafter MDNM Report]. Five major mass-extinction events, as detected for marine invertebrates, have previously hit Earth. David Jablonski, Extinctions in the Fossil Record, in Extinction Rates 25, 26 (John H. Lawton & Robert M. May eds., 1995). These five extinction events occurred at the end of the Ordovician age (439 million years ago), the end of the late Devonian age (367 million years ago), the end of the Permian age (245 million years ago), the end of the Triassic age (208 million years ago), and the end of the Cretaceous age (65 million years ago). Id. Jablonski cautions that "[p]alaeontological extinction data are extremely difficult to compare to present-day extinction rates" and that the "larger problem ... is how to generalize from the marine-based history of global biodiversity to today's situation, where most data and the most rapid and extensive species losses are terrestrial." Id. at 30, 31. However, he acknowledges the "potential for long-term losses of similar scope and evolutionary impact to the major mass extinctions of the fossil record." Id. at 33.

(5) Paul R. Ehrlich, The Scale of the Human Enterprise and Biodiversity Loss, in Extinction Rates, supra note 4, at 214, 223. Ehrlich calculated the potential species extinction by correlating increasing energy consumption with habitat loss. He then extrapolated species loss from habitat loss, which would make increase in energy consumption proportional to species loss. Ehrlich's calculations seem to correspond with predicted future extinction rates using other methods. Id. at 219-23.

(6) 16 U.S.C. [subsections] 1531-1544 (1994).

(7) Id. [sections] 1531(b).

(8) Id. [sections] 1532(15).

(9) Nathaniel P. Reed & Dennis Drabelle, The United States Fish and Wildlife Service 11 (1984).

(10) Id. at 10.

(11) Id. at 12. Nathaniel P. Reed, who served as the Assistant Secretary of the Interior for the USFWS and the National Park Service during the Nixon and Ford administrations, aptly and eloquently expressed the ideals that the USFWS should live up to:

Plants and animals, then, are not supplements to our lives-nor should they

be considered such if we are to respect our own phylogeny and history. They

are our neighbors, our sustenance, our predecessors, in a sense our

parents. If we continue to detach ourselves from them, if we so radically

separate ourselves from animals that whether they live or die as species

becomes a mere matter of workaday convenience, then we are in a real sense

repudiating ourselves.

Id. at 150.

(12) See infra notes 143-55, 189-203 and accompanying text (describing the plight of the bull trout and recent efforts to list it).

(13) See infra notes 227-33 and accompanying text (discussing how as few as one hundred individuals may remain and that the USFWS refuses to emergency list the yellow-legged frog).

(14) See infra notes 175-83 and accompanying text (discussing the highly political nature of the battle to list this almost extinct species).

(15) See infra notes 253-57 and accompanying text (discussing recent efforts to get the USFWS to list this species that has been on the "warranted but precluded" list for years).

(16) See infra notes 156-66, 304-10 and accompanying text (discussing the population status of the lynx and the highly political nature of the Service's decision not to list it).

(17) See infra notes 288-89, 291-97 and accompanying text (discussing how the USFWS reached a "not warranted" listing decision that was later judicially overturned).

(18) See infra notes 287, 290, 291-95 and accompanying text (discussing how the USFWS reached a "not wan-anted" listing decision that was later judicially overturned).

(19) See infra notes 167-74, 279-85 and accompanying text (discussing how the USFWS caved into pressure from the Governor and land developers of Texas to withdraw a proposed listing for the salamander).

(20) See infra note 142.

(21) 16 U.S.C. [sections] 1533(b)(1)(A) (1994).

(22) H.R. Conf. Rep. No. 97-835, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2862. 23 Ray Vaughan, State of Extinction: The Case of the Alabama Sturgeon and Ways Opponents of the Endangered Species Act Thwart Protection for Rare Species, 46 Ala. 1. Rev. 569, 585 n. 100 (1995). The three major settlements were: 1) Fund for Animals, Inc. v. Lujan, No. 92-800 (D.D.C.1992) [hereinafter FFA Settlement], where the USFWS agreed to make a formal proposal to list or drop from consideration 401 candidate species by September 1996, 2) California, Native Plant Soc'y v. Lujan, No. F-91-0038 (E.D. Cal. Aug. 22, 1991), where the USFWS agreed to make a listing decision on 159 species of California plants found on the Category 1 list of candidate species, and 3) Conservation Council for Hawaii v. Lujan, No. 89-953 (D. Haw. May 9, 1991), where the USFWS agreed to make a preliminary listing decision on 189 species of Hawaiian plants and animals. Id.; see also infra Part III.B.3 (discussing in more detail the FFA settlement and the disturbing evidence that the case presents supporting past USFWS behavior to slow the listing process).

(24) The USFWS has a strong congressional mandate to use the emergency listing provision of the ESA to "prevent a significant risk to the well-being of any such species." Endangered Species Act Amendments of 1988, Sen. Rep. No. 100-240, at 7 (1987), reprinted in 1988 U.S.C.C.A.N. 2700, 2707.

(25) Endangered and Threatened Species Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43, 098 (Sept. 21, 1983) [hereinafter 1983 Guidelines].

(26) 16 U.S.C. [sections] 1533(b)(3)(B)(iii) (1994).

(27) Restarting the Listing Program and Final Listing Priority Guidance, 61 Fed. Reg. 24,722 (May 16, 1996) [hereinafter 1996 Guidelines].

(28) Testimony on Behalf of the Fund for Animals, Inc., Defenders of Wildlife and the Biodiversity Legal Foundation Before the Committee on Resources of the U.S. House of Representatives, 104th Cong., 2nd Sess. (1996) (statement of Eric R. Glitzenstein), available in 1996 WL 10828830 [hereinafter Glitzenstein Testimony].

(29) The five statutory listing criteria are discussed infra Part II.A. See Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, 52 (D.D.C. 1996) (overturning the decision not to list the Queen Charlotte's goshawk); Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 26 (D.D.C. 1996) (overturning the decision not to list the Alexander Archipelago wolf); Save Our Springs v. Babbitt, No. MO-96-CA-168 (D. Tex. Mar. 25, 1997) (overturning the decision not to list the Barton Springs salamander). After the courts forced the USFWS to reconsider listing for the goshawk and wolf, the USFWS still found listing unwarranted in recent decisions. 12-Month Finding for a Petition to List the Alexander Archipelago Wolf as Threatened and to Designate Critical Habitat, 62 Fed. Reg. 46,709 (Sept. 4, 1997); 12-Month Finding for a Petition to List the Queen Charlotte Goshawk as Endangered and to Designate Critical Habitat, 62 Fed. Reg. 46,710 (Sept. 4, 1997).

(30) Endangered Species Act of 1973, Sen. Rep. No. 93-307, at 1 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2989.

(31) The Supreme Court of the United States also recognized the strong congressional mandate to protect imperiled species. In TVA v. Hill, 437 U.S. 153 (1978), the Court ruled to enjoin the opening of a massive new dam that would have wiped out the habitat of the snail darter, a small minnow species found only in the stretch of river that would become the dam's reservoir. The Court held that "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities ...." Id. at 194.

(32) John D. Dingell, Foreword to Daniel Rohlf, The Endangered Species Act: A Guide to its Protections and Implementations 1 (1989). John D. Dingell was the Chairman of the Subcommittee on Fisheries and Wildlife Conservation and Environment of the House Committee on Merchant Marine and Fisheries when the ESA was introduced and enacted, and is recognized as the "father" of other important environmental statutes such as the National Environmental Policy Act, the Marine Mammal Protection Act, the National Wildlife Refuge System, and the Clean Air Act. Id.

(33) 16 U.S.C. [sections] 1532(15) (1994).

(34) U.S. General Accounting Office, Endangered Species: Management Improvements Could Enhance Recovery Program 12 (1988). The Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS), is in charge of marine species. Id.

(35) 16 U.S.C. [sections] 1533(a)(1) (1994).

(36) See, e.g., 16 U.S.C. [sections] 1536(a)(2) (1994) ("Each Federal agency shall ... insure that any action ... is not likely to jeopardize the continued existence of any endangered species or threatened species ...."); 16 U.S.C. [sections] 1538(a)(1)(B) (1994) ("[W]ith respect to any endangered species ... it is unlawful for any person ... to ... take any such species ....").

(37) Id. [sections] 1533(a)(2)(A).

(38) Id. [sections] 1533(b)(3)(A).

(39) U.S. General Accounting Office, Endangered Species Act: Types and Number of Implementing Actions 24 (1992) [hereinafter Types and Number].

(40) 16 U.S.C. [sections] 1533(b)(3)(A) (1994).

(41) Id. [sections] 1533(b)(3)(B). Congress put these tough time limits on the listing process in the 1982 ESA amendments to counter long delays by the USFWS in both responding to petitions and in reaching final decisions to list or not list a species. H.R. Conf. Rep. No. 97-835, at 20 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2861-62.

(42) An endangered species is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. [sections] 1532(6) (1994).

(43) A threatened species is one that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. [sections] 1532(20).

(44) Id. [sections] 1533(b)(5).

(45) Id. [sections] 1533(b)(6)(A).

(46) Since the protection received by both endangered and threatened species is largely the same, this Comment will discuss them together generally as "imperiled" or "listed" species.

(47) Congress first used this language in the 1982 amendments to the ESA. H.R. Rep. No. 97-567, at 10 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2810.

(48) 16 U.S.C. [sections] 1533(b)(1)(A) (1994).

(49) H.R. Conf. Rep. No. 97-835, at 19 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2860. Congress added this provision in the 1982 amendments to speed up the listing process as a reaffirmance of its importance to the overall success of the ESA. Id.

(50) 16 U.S.C. [sections] 1533(b)(7) (1994).

(51) Id.

(52) See Endangered Species Act Amendments of 1988, Sen. Rep. No. 100-240, at 8 (1988), reprinted in 1988 U.S.C.C.A.N. 2700, 2707 (directing the USFWS to both monitor and emergency list imperiled candidate species); see also infra note 218 and accompanying text (discussing the purpose of the emergency listing provision).

(53) 16 U.S.C. [sections] 1536(a)(2) (1994). Furthermore, it requires agency consultation with the USFWS to determine whether a listed species is present in an agency project area or a federally-permitted project area, and if so, whether the project will adversely affect the species. Id. [sections] 1536(a)(3).

(54) 16 U.S.C. [sections] 1532(19) (1994). Even though section 9 of the ESA does not directly protect threatened species, section 4(d) requires the Secretary to issue regulations that are "necessary and advisable to provide for the conservation of (threatened] species." Id. [sections] 1533(d). The Secretary's duty often extends to a requirement to prohibit takings of threatened species, which is similar to the protection provided to endangered species. Id. In other words, the Secretary must explicitly extend some of the section 9 protections to threatened species upon the listing of that species.

(55) See H.R. Conf. Rep. No. 97-835, at 20-21 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2861-62; see also supra notes 40-49 and accompanying text (describing the current time limits on listing decisions).

(56) H.R. Conf. Rep. No. 97-835, at 21, reprinted in 1982 U.S.C.C.A.N. 2862. The 1979 amendments to the ESA first required the USFWS to create a priority system for species awaiting consideration. Rohlf, supra note 32, at 46. The first priority system adopted by the USFWS gave greater priority to higher life forms, but Congress prohibited consideration of level of life form in its 1982 amendments. H.R. Conf. Rep. No. 97-835, at 21, reprinted in 1982 U.S.C.C.A.N. 2862.

(57) 1983 Guidelines, 48 Fed. Reg. at 43,102-43,103.

(58) Id.

(59) Id. at 43,103.

(60) Id.

(61) Id.

(62) Id.

(63) Id.

(64) Id.

(65) Id.

(66) Id.

(67) H.R. Conf. Rep. No. 97-835, at 21-22 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2862-63.

(68) See id. at 21-22; 16 U.S.C. [sections] 1533(b)(3)(B)(iii) (1994).

(69) H.R. Conf. Rep. No. 97-835, at 21, reprinted in 1982 U.S.C.C.A.N. 2860, 2862.

(70) H.R. Conf. Rep. No. 97-835, at 22, reprinted in 1982 U.S.C.C.A.N. 2863. Courts have reinforced Congress's mandate that the USFWS shows the existence of these two conditions when it decides to place a species in the "warranted but precluded" category. In 1995, environmental groups challenged the USFWS decision that a reclassification of the Cabinet/Yaak grizzly bear population from threatened to endangered was "warranted but precluded." Carlton v. Babbitt, 900 F.Supp. 526 (D.D.C. 1995). The court ruled that the USFWS must show that it is actively working on other pending proposals and that it must be making expeditious progress in other listing activities. Id. at 536. Further, the court ruled that the USFWS must publish its findings regarding its progress on other listings. Id. Since the USFWS had not published any documents showing progress on other listing activities, the court found that it had improperly used the "warranted but precluded" category and that it must reconsider the matter. Id. at 536-37.

(71) 16 U.S.C. [sections] 1533(b)(3)(C)(i) (1994).

(72) H.R. Conf. Rep. No. 97-835, at 22, reprinted in 1982 U.S.C.C.A.N. 2860, 2863.

(73) See Bob Benenson, Senators Introduce Restraints on Endangered Species Act, Cong. Q. Wkly. Rep., May 13, 1995, at 1324 (discussing a proposed bill submitted by three senators, which would require social and economic considerations in ESA decisions).

(74) Endangered Species Act, Cong. Q. Wkly. Rep., Jan. 6, 1996, at 36

(75) A recent study by Massachusetts Institute of Technology Political Science Professor Stephen Meyer examined the economic impact of the ESA on the economies of all 50 states from 1975 through 1990. Not only did he find no adverse economic impact of ESA species' listings in the states with the most listed species, but many of these states actually had higher economic growth. David Brittan, Defending an Endangered Act, TECH. Rev., Aug.-Sept. 1995, at 13. "[T]he data revealed a clear and consistent positive relationship between the states' environmental effort and their economic performance.... This surprising yet solid finding allows us to dismiss the environmental impact hypothesis with even greater confidence." Vaughan, supra note 23, at 582 n.85.

(76) See Laura Spitzberg, The Reauthorization of the Endangered Species Act, 13 Temp. Envtl. L. & Tech. J. 193, 195 (1994) (discussing the different political factors behind the pending bills for ESA reauthorization).

(77) Margaret McMillan, Report From the Field: Effects of the Moratorium on Listings Under the Endangered Species Act, Endangered Species Update, Mar. 1996, at 5. Senator Kay Bailey Hutchinson (R-Tex.) sponsored the original moratorium amendment. Id.

(78) Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-06, 109 Stat. 73, 86 (1995). However, Fund for Animals, hie. (FFA), an environmental organization seeking to enforce a judicial settlement where the USFWS agreed to increase the processing of candidate species, argues that the moratorium only prevented the USFWS from making "final determinations" and therefore freed up funds to process candidate species and listing petitions. Candidate Species Deserve Decisions, Fund Argues, Endangered Species & Wetlands Rep., Sept. 1996, at 1, 2 [hereinafter Candidate Species Deserve Decisions].

(79) Candidate Species Deserve Decisions, supra note 78, at 2.

(80) Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996).

(81) Final Listing Priority Guidance for Fiscal Year 1997, 61 Fed. Reg. 64,475, 64,476 (Dec. 5, 1996).

(82) FWS Moves Cautiously to Restart Listing Program, Endangered Species & Wetlands Rep., June 1996, at 4.

(83) 1996 Guidelines, 61 Fed Reg. at 24,722.

(84) Id. at 24,727.

(85) Id.

(86) Id. at 24,727-24,728.

(87) Final Listing Priority Guidance for Fiscal Year 1997, 61 Fed. Reg. 64,475, 64,476 (Dec. 5, 1996).

(88) During this time, the USFWS also withdrew three proposed listings--two plants and the Barton Springs salamander. Id.

(89) Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996). President Clinton had requested $7.483 million. 61 Fed. Reg. at 64,476.

(90) 61 Fed. Reg. at 64,476, 64,480.

(91) Id. at 64,477; see also Final FWS Listing Guidance Seeks Balance, Endangered Species & Wetlands REP., Dec. 1996, at 11.

(92) 61 Fed. Reg. at 64,476, 64,480.

(93) See id. at 64,477.

(94) See Glitzenstein Testimony, supra note 28 (arguing that "the Congressional moratorium on final listing decisions ... decimated the Service's entire listing program" and that the "wounds" caused by the "breakdown in the listing process" were "self-inflicted" by the Administration).

(95) 61 Fed. Reg. at 64,479.

(96) See Amending the Endangered Species Act of 1973: Hearings, Serial No. 95-H60 Before the Senate Comm. on Environment and Public Works, 95th Cong. 85 (1978), reprinted in CIS S32142 (referring to the GAO report).

(97) Steven Lewis Yaffee, Prohibitive Policy (1982).

(98) Id. at 88.

(99) Id. at 89.

(100) Id. at 90-91 see also 16 U.S.C. [section] 1532(3)(1994) (authorizing limited takings of fisted species when it may improve the conservation of a species by relieving population pressures within a given ecosystem).

(101) See Wayne Slater, Fate of the Grizzly Divides Montanans: Environmentalists Fear for Bears; Ranchers Want to Protect Cattle, Dallas Morning News, Dec. 8, 1985, at A1 (estimating total grizzly bear population at 900 individuals in 1985).

(102) Fund For Animals, Inc. v. Rimer, No. Civ.A.91-2201-MB, available in 1991 WL 206232 (D.D.C. Sept. 27, 1991).

(103) The USFWS gave various reasons why the hunting was necessary. It argued that observations of bears outside their traditional range meant that the bears were overpopulated. The court countered that this movement could be due to a number of other factors, such as loss of habitat, artificial food sources, or dispersal behavior. Therefore, no conclusion could be reasonably made that the ecosystem was overpopulated. Id. at *4. Then, the USFWS tried to define "population pressure" broadly to mean any pressure that "create[s] conflict between bears and humans living in the same area," and thus the Service need only show conflict between humans and bears. Id. at *5. However, the court did not agree with that argument and held that Congress meant "population pressure" to be viewed in a "limited ecological sense--where the animal `exceeds the carrying capacity of its particular ecosystem.'" Id. Furthermore, the Agency's own record for the grizzly bear recovery plan flatly stated that there is "no evidence to indicate the numbers of grizzly bears in the [NCDE] are increasing." Id. For these reasons, the court found the Service's regulation to be arbitrary and capricious because the Agency did not provide a rational basis for its action, and the court ordered an injunction on grizzly bear hunting. Id. at *7-*9.

(104) Yaffee, supra note 97, at 91.

(105) Id.

(106) See Mark Bonnett & Kurt Zimmerman, Politics and Preservation: The Endangered Species Act and the Northern Spotted Owl, 18 Ecology L.Q. 105, 111-13 (1991).

(107) Id. at 118.

(108) Id. at 115.

(109) Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects For Reform, 24 Cumb. L. Rev. 1, 57 (1994) (citing a study by an independent accounting firm). However, new data have strongly shown that listings of species might actually have very little economic impact on states, which counteracts Sugg's analysis. See Brittan, supra note 75, at 13 (describing how an MIT study not only found no adverse economic impact of ESA species' listings in the states with the most listed species, but many of these states actually had greater economic growth than states with fewer listed species).

(110) Bonnett & Zimmerman, supra note 106, at 125.

(111) Id.

(112) Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988).

(113) Bonnett & Zimmerman, supra note 106, at 126.

(114) Northern Spotted Owl, 716 F. Supp. at 483.

(115) Review of Plant and Animal Taxa That Are Candidates for Listing as Endangered or Threatened Species, 61 Fed. Reg. 7596, 7597-98 (Feb. 28, 1996) (codified at 50 C.F.R. pt. 17) ("[T]he Service relies on information from status surveys conducted for candidate assessment and on information from ... State and Federal Agencies.... knowledgeable scientists, public and private natural resource interests, and comments received ....").

(116) Id. at 7597.

(117) Id.

(118) Policy on Candidate Categories Relative to Petition Findings, 58 Fed. Reg. 28,034, 28,035 (May 12, 1993); see also 61 Fed. Reg. at 7598 (suggesting that each candidate species has a priority number).

(119) See 58 Fed. Reg. at 28,035 (placing all "warranted but precluded" candidate species in Category 1). In 1993, as a result of the FFA settlement, the Service officially recognized that it was placing some of the "warranted but precluded" candidate species in Category 2. Recognizing the arbitrariness of this policy, and bound by the FFA settlement, the Service decided to terminate this discretionary practice. Id. at 28,035. This pre-1993 policy of placing "warranted but precluded" species in Category 2 might also have had political implications, because the Service was further burying species that it deemed warranted for listing, but perhaps for political reasons did not want to list.

(120) See supra text accompanying note 116 (defining a Category 1 species).

(121) Endangered Species Act Amendments of 1988, S. Rep. No. 100-240, at 8 (1988), reprinted in 1988 U.S.C.C.A.N. 2700, 2707. However, a 1990 audit report by the Office of the Inspector General in the Department of the Interior found that it would take 38 to 48 years for the USFWS to list all of the C1 and C2 species at the time "estimated to qualify for protection under the Act." Audit Report: The Endangered Species Program - U.S. Fish and Wildlife Service, Office of the Inspector General, U.S. Department of the Interior, Sept. 1990, at 7 [hereinafter Audit Report].

(122) S. Rep. No. 100-240, at 8.

(123) Id. at 7.

(124) Id. at 8.

(125) Section 10 allows the USFWS to issue "take" permits when the take is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. [section] 1539(a)(1)(B) (1994). The applicant must submit an HCP which must be approved by the USFWS, after it considers the well-being of listed and candidate species.

(126) Agencies must consult with the USFWS to insure that their actions are not likely to jeopardize the continued existence of any endangered species. Id. [section] 1536(a)(2). Impacts on candidate species are routinely considered as part of the Service's review. 50 C.F.R. [section] 402.12(d) (1996).

(127) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1994); see Howard M. Crystal, The Elimination of the Category 2 Candidate Species List: A Prescription for Environmental Train Wrecks, Endangered Species Update, Jan.-Feb. 1997, at 7, 8.

(128) Crystal, supra note 127, at 7.

(129) Id.

(130) FWS Sued Over Removal of Category 2 List, Endangered Species & Wetlands Rep., Apr. 1996, at 12 [hereinafter FWS Sued); see also Review of Plant and Animal Taxa That Are Candidates for Listing as Endangered or Threatened Species, 61 Fed. Reg. 7596, 7597 (Feb. 28, 1996) ("[C]andidate species are those species for which the Service has on file sufficient information ... to support issuance of a proposed rule to list .... The Service encourages other Federal agencies to give consideration to these taxa in environmental planning.").

(131) See generally Crystal, supra note 127, at 7 (discussing the detrimental effect on the conservation of the Category 2 species when they were dropped from official USFWS recognition).

(132) 61 Fed. Reg. at 7597. This new rule by the USFWS prompted a lawsuit by Biodiversity Legal Foundation (BLF) because the USFWS did not use notice and comment rulemaking procedures. FWS Sued, supra note 130, at 12. The USFWS agreed to accept notice and comment for a month and then published a final ruling on December 5, 1996, which addressed the comments but maintained the rule. Notice of Final Decision on Identification of Candidate Species for Listing as Endangered or Threatened, 61 Fed. Reg. 64,481 (Dec. 5, 1996).

In reinstating the elimination of the C2 species, the Service reasoned that species lists like those maintained by state natural resource departments and agencies and Natural Heritage Programs more accurately tracked the status of the C2 species, and would therefore be used in the future in place of the Service's list. Id. However, as pointed out by critics of the Agency's action, the Service "failed to articulate how these lists will be used to substitute for the many functions of the C2 [l]ist." Crystal, supra note 127, at 8. In support of this criticism is the fact that no provisions were set up for these other lists to be incorporated into section 10 or section 7 considerations, or to be used in NEPA analyses. Until these species make it to the C2 list, they appear to be lost from "public view" and denied even minimal protection. Id. at 8, 14.

(133) Crystal, supra note 127, at 7.

(134) U.S. Fish and Wildlife Service Issues Revised List of "Candidates" for Endangered Species List, U.S. Fish and Wildlife Service, U.S. Department of the Interior, News Release, Feb. 27, 1996, available in 1996 WL 87666.

(135) See generally 61 Fed. Reg. at 64,481 (making no mention of any scientific reasons for the action). Eric R. Glitzenstein, an attorney who litigates ESA issues, argues that there was no biological reason for the dismantling of Category 2, and that the final result is that many needy species will not even receive the informal protection of candidate status. Glitzenstein Testimony, supra note 28. Furthermore, reinforcing the fact that this decision was not based on biological reasoning, after the Service put the action up for notice and comment, 159 of the 163 comments received expressed concerns over the USFWS action. 61 Fed. Reg. at 64,482. Commentors expressed a range of concerns such as unease at the loss of candidate species protection for the Category 2 species, how the USFWS was going to choose which species to be dropped and which to stay on as candidate species, the lack of clarity in how to define candidate species, and the belief that "public confusion" was not a "reasonable basis" for eliminating the Category 2 list. Id. at 64,482-64,484.

(136) The 1990 Inspector General Audit Report recognized that between 1,300 to 1,800 of the 3,033 Category 2 species "will eventually qualify for the Act's full protection." Audit Report, supra note 121, at 6.

(137) See supra note 35 and accompanying text (explaining the factors upon which the USFWS can rely when listing species).

(138) See infra part III.B.

(139) Friends of the Wild Swan, Inc. v. United States Fish and Wildlife Serv., 945 F. Supp. 1388 (D.Or. 1996).

(140) Save Our Springs v. Babbitt, Civ. No. MO-96-CA-168 (W.D.Tex. 1997), aff'd on other grounds, 115 F.3d 346 (5th Cir. 1997).

(141) Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 1997).

(142) Also, the Southwest Center for Biological Diversity recently won a case in Arizona to force the USFWS to fist the jaguar on the endangered species list. Steve Yozwiak, Judge Sets Land Aside for Wildlife-Jaguar Placed on Endangered Species List, Ariz. Republic, Mar. 25, 1997, at Al. Since the United States portion of the jaguar population depends on the last of Arizona's free-flowing rivers and on rare desert marshes called cienegas which could be used for grazing purposes and urban development, and because the state has strongly opposed listing the jaguar since the state prefers voluntary conservation agreements with ranchers to protect the cat, id., it appears highly likely that the USFWS stalling behavior to list the jaguar was politically motivated. Since the case had not been published in the federal digests or on Westlaw by the time that this Comment went to press, the ruling will not be further discussed.

(143) Memorandum from Regional Director, USFWS Region 1, to Director, USFWS, Warranted But Precluded Administrative 12-Month Finding on a Petition to List the Bull Trout Under the ESA 3 (June 8, 1994) (on file with the Lewis & Clark College Law Library) [hereinafter 1994 Bull Trout Finding].

(144) The 1994 findings were in response to a joint 1992 petition from Alliance for the Wild Rockies, Inc., Friends of the Wild Swan, and Swan View Coalition to list the bull trout. Id. at 2.

(145) Id. at 3.

(146) Id. at 2-3.

(147) Id. at 23.

(148) Id. at 24. A metapopulation is defined as "a set of linked local populations, each in its own separate patch of habitat." Charles C. Mann & Mark L. Plummer, Are Wildlife Corridors the Right Path?, 270 Science 1428 (1995).

(149) 1994 Bull Trout Finding, supra note 143, at 24.

(150) Id. at 17.

(151) Jonathan Brinckman, Federal Judge Orders New Look at Bull Trout, Oregonian, Nov. 14, 1996, at D1.

(152) Id.

(153) See supra notes 106-14 and accompanying text (discussing the controversy around the listing of the northern spotted owl).

(154) Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988) (holding that the USFWS unwarranted ruling to list the spotted owl was arbitrary and capricious); Marbled Murrelet v. Lujan, No. C91-522R (W.D. Wash. Sept. 17, 1992) (forcing the listing of the marbled murrelet).

(155) See generally Elliot Diringer, Deadline Near on New Test Of Endangered Species Act, S.F. Chron., Sept. 18, 1992, at A9 (comparing the political conflict between environmentalists and loggers to list the marbled murrelet with the one for the northern spotted owl).

(156) Defenders of wildlife v. Babbitt, 958 F. Supp. 670, 674 (D.D.C. 1997).

(157) Id. at 673.

(158) Id.

(159) Id. at 674,

(160) Id.

(161) Id.

(162) Brad Knickerbocker, Thinning Forests Lead to Missing Lynx: Environmentalists Say US Wildlife Agency Put Politics Ahead of Endangered Species, Christian Sci. Monitor, Feb. 2, 1996, at 4.

(163) Under the ESA, the USFWS must also list population segments of species that warrant listing. 16 U.S.C. [sections] 1532(16) (1994).

(164) Defenders of Wildlife, 958 F. Supp. at 675.

(165) 12-Month Finding for a Petition to List As Endangered or Threatened the Contiguous United States Population of the Canada Lynx, 59 Fed. Reg. 66,507 (Dec. 27, 1994) (codified at 50 C.F.R. pt. 17).

(166) Defenders of Wildlife, 958 F. Supp. at 677.

(167) Withdrawal of Proposed Rule To List the Barton Springs Salamander as Endangered, 61 Fed. Reg. 46,608 (Sept. 4, 1996).

(168) Proposal To List the Barton Springs Salamander as Endangered, 59 Fed. Reg. 7968 (Feb. 17, 1994).

(169) Id.

(170) Save Our Springs v. Babbitt, Civ. No. MO-96-CA-168, at 11 (W.D. Tex. Mar. 25, 1997).

(171) Id. at 10.

(172) Id. at 11. Even the Secretary's Deputy Chief of Staff, Susan Rieff, noted in an e-mail letter that the listing decision was a "hot" issue. Id.

(173) Withdrawal of Proposed Ride To List the Barton Springs Salamander as Endangered, 61 Fed. Reg. 46,608 (Sept. 4, 1996).

(174) Save Our Springs, Civ. No. MO-96-CA-168, at 11.

(175) Vaughan, supra note 23, at 604. Vaughan's law review article provides an extensive overview of the past historical events, political issues, and legal problems of the Alabama sturgeon controversy. See id. at 604-35. Vaughan is the attorney for Biodiversity Legal Foundation (BLF), which has brought suit to force the USFWS to list the Alabama sturgeon. Alabama Sturgeon on Comeback Trail, Endangered Species & Wetlands Rep., Aug. 1996, at 10.

(176) Vaughan, supra note 23, at 604.

(177) Id. at 607, 614-15.

(178) Id. at 624.

(179) Id. at 605.

(180) Id. at 605-32. A scientific review panel, formed at the direction of Secretary of the Interior Bruce Babbitt, found that the Alabama sturgeon was both a distinct species and not yet extinct. Id. at 615-19. This report would have provided a strong scientific basis to finally list the species. However, the industry coalition won a lawsuit that prevented the USFWS from using the report because the Agency violated the Federal Advisory Committee Act (FACA). Alabama-Tombigbee Rivers Coalition v. Department of the Interior, 26 F.3d 1103 (11th Cir. 1994).

(181) Alabama Sturgeon on Comeback Trail, supra note 175, at 10; see also Withdrawal of Proposed Rule for Endangered Status and Critical Habitat for the Alabama Sturgeon, 59 Fed. Reg. 64,794 (Dec. 15, 1994).

(182) Vaughan, supra note 23, at 624.

(183) Alabama Sturgeon on Comeback Trail, supra note 175, at 10.

(184) 1983 Guidelines, supra note 25.

(185) Policy on Candidate Categories Relative to Petition Findings, 58 Fed. Reg. 28,034, 28,035 (May 12, 1993).

(186) H.R. Conf. Rep. No. 97-835, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2862.

(187) See supra Part II.B (explaining how the 1983 Guidelines work).

(188) Recall that the magnitude of threat is defined as "a threat to [the species'] continued existence." Immediacy of threat is defined as "actual, identifiable, threats" versus "threats [that] are only potential." The distinctiveness or isolation of a gene pool is the third criterion considered. This is the extent of the definitions and standards laid out in the 1983 Guidelines. 1983 Guidelines, 48 Fed. Reg. 43,098 (Sept. 21, 1983).

(189) 1994 Bull Trout Finding, supra note 143, at 26. A moderate threat will put the priority number between seven and twelve. The fact that the threat is imminent narrows the number between seven and nine. Since the U.S.-based bull trout is only a population of the entire species, then the ranking is further refined to a priority number of nine. See supra notes 59-66 and accompanying text (describing how to determine priority rankings).

(190) 1994 Bull Trout Finding, supra note 143, at 25.

(191) Id. at 25, 26.

(192) Friends of the Wild Swan, Inc. v. United States Fish and Wildlife Serv., 945 F. Supp. 1388 (D. Or. 1996). The organizations filed suit on November 1, 1994, to challenge the USFWS "warranted but precluded" bull trout finding of that year as arbitrary and capricious. Id. at 1392-93. While the suit was pending, the USFWS changed the priority ranking of the bull trout from nine to three which resulted in a stay of the lawsuit. Id. at 1393. However, five months later, the USFWS once again published in the Federal Register that the listing of the species was "warranted but precluded" due to a priority ranking of nine. Id. The District Court then issued an order declaring plaintiffs' challenge of the USFWS 1994 finding moot, because the plaintiffs did not address the 1995 finding in their pleadings. Id. The Ninth Circuit, however, reversed the holding and remanded back to the District Court because the plaintiffs' challenge "falls within the exception to the mootness doctrine for claims that are capable of repetition yet evading review." Friends of the Wild Swan, Inc. v. United States Fish and Wildlife Serv., No. 95-35916, 1996 WL 155143, at *2 (9th Cir. 1996).

(193) Friends of the Wild Swan, 945 F. Supp at 1400.

(194) Id. at 1401-02. The USFWS had four months from the time of the holding to reconsider the priority number and it could only use the information that it had when it made the 1994 finding. Id. Reportedly, the Service has decided not to appeal the case. Jonathan Brinckman, Agency Takes 2nd Look at Listing of Bull Trout, Oregonian, Jan. 16, 1997, at E3. On March 11, 1997, the USFWS completed its reconsideration. Memorandum from Regional Director, USFWS, Region 1, Portland, Oregon, to Director, USFWS, Washington D.C. (Mar. 11, 1997) (on file with author). It split the bull trout population into five distinct population segments: Klamath River, Columbia River, Coastal/Puget Sound, Jarbidge River, and Saskatchewan River. Id. at 6. Based on the 1994 Agency record, the Service found the Jarbidge River population and Coastal/Puget Sound populations stable or increasing. Id. at 38, 40. It found that there was not enough data to make a listing determination for the Saskatchewan River population. Id. at 40. Finally, it found listing to be warranted for the Klamath River and Columbia River populations. Id. at 39. The Service assigned the Klamath River population a priority number of three due to massive habitat decimation and very low population numbers, and the Columbia River population a lesser priority number of nine due to the fact that it had a "wide range, scattered distribution, and diversity of life histories." Id. at 41. The Service asked the court for the authority to consider the latest data, and issue a new finding by August 15, 1997. Id. at 42. On June 13, 1997, the USFWS solicited new information concerning the bull trout in preparation for its new findings. Proposal to List the Klamath River Population Segment of Bull Trout as an Endangered Species and Columbia River Population Segment as a Threatened Species, 62 Fed. Reg. 32,268 (June 13, 1997) (to be codified at 50 C.F.R. pt. 17). However, there is no guarantee that these populations will be listed, and the USFWS made no mention that it was reconsidering current data for the other populations to determine whether they may now warrant listing as well.

(195) 5 U.S.C. [sections] 706(2)(A) (1994).

(196) O'Keeffe's, Inc. v. United States Consumer Product Safety Comm'n, 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

(197) Friends of the Wild Swan, 945 F. Supp. at 1397.

(198) Id.

(199) Id. at 1398.

(200) Id.

(201) Id. at 1399.

(202) The case was remanded to the USFWS by Judge Jones. See supra note 192 and accompanying text.

(203) E-mail Interview with Jack R. Tuholske, Attorney for Alliance for the Wild Rockies (Feb. 26, 1997).

(204) Types and Number, supra note 39, at 23. However, this number does not include species originally reported imperiled by the Smithsonian Institute. Many of these species of plants have continued to linger in the candidate categories as "warranted but precluded" listings. Id. at 23 n.4.

(205) Id. at 23.

(206) Fund for Animals, Inc. v. Babbitt, No. 92-0800 SS (D.D.C. 1997).

(207) Sept. 30 Deadline to Protect Florida Black Bear Passes, U.S. Newswire, Sept. 30, 1996, available in 1996 WL 12123224 (Sept. 30, 1996); see also Glitzenstein Testimony, supra note 28.

(208) See supra note 78 and accompanying text (discussing Congress's rescission of funding for listing determinations for more than a year).

(209) 61 Fed. Reg. 24,722 (May 16, 1996); see also supra notes 83-94 (discussing the 1996 Guidelines).

(210) Restarting the Listing Program and Final Listing Priority Guidance, 61 Fed. Reg. 24,722, 24,726 (May 16, 1996).

(211) Rifle 60(b) allows parties to petition the court to relieve them from a final judgment, order, or proceeding. Fed. R. Civ. P. 60(b).

(212) See Letter from Eric Glitzenstein, supra note 3.

(213) Fund for Animals, Inc. v. Babbitt, No. 92-0800 SS, at 1 (D.D.C. Jan. 30, 1997).

(214) See Letter from Eric Glitzenstein, supra note 3.

(215) Id.

(216) See Fund for Animals, No. 92-0800 SS.

(217) Id. at 5.

(218) Endangered Species Act Amendments of 1988, S. REP. No. 100-240, at 7 (1987), reprinted in 1988 U.S.S.C.A.N. 2700, 2707.

(219) The following is a list of the emergency listings during this time period: Astragalus yoder-williamsii, 45 Fed. Reg. 53,968 (Aug. 13, 1980); Ash Meadows speckled dace and Ash Meadows Amargosa pupfish (twice emergency listed), 48 Fed. Reg. 608 (Jan. 5, 1983), 47 Fed. Reg. 19,995 (May 10, 1982); Woodland Caribou of Idaho and British Columbia (twice emergency listed), 48 Fed. Reg. 1722 (Jan. 14, 1983), 48 Fed. Reg. 49,245 (Oct. 25, 1983); Guam Rail, 49 Fed. Reg. 14,354 (Apr. 11, 1984); Loch Lomond Coyote-thistle, 50 Fed. Reg. 31,187 (Aug. 1, 1985); Key Largo Woodrat and Key Largo Cotton Mouse, 48 Fed. Reg. 43,040 (Sept. 21, 1983). This information was gathered by a survey of the Federal Register using Westlaw.

(220) See generally Saint Francis' Satyr, 59 Fed. Reg. 18,324 (Apr. 18, 1994); Kanab Ambersnail, 56 Fed. Reg. 37,668 (Aug. 8, 1991); Mitchell's Satyr, 56 Fed. Reg. 28,825 (June 25, 1991); Pacific Pocket Mouse, 59 Fed. Reg. 5306 (Feb. 3, 1994); Mojave Population of the Desert Tortoise, 54 Fed. Reg. 32,326 (Aug. 4, 1989); Golden-cheeked Warbler, 55 Fed. Reg. 18,844 (May 4, 1990). This information was gathered by a survey of the Federal Register using Westlaw.

(221) Restarting the Listing Program and Final Listing Priority Guidance, 61 Fed. Reg. 24,722, 24,727 (May 16, 1996).

(222) The USFWS has not published a definition of what constitutes a "significant risk to the well-being" of a species in either the Federal Register or the Code of Federal Regulations.

(223) A recent Nature Conservancy study shows that as many as 33% of U.S. species are in danger of becoming extinct. MDNM Report, supra note 4. Furthermore, as evidence of the growing extinction crisis, scientists have shown that many species have gone extinct in the recent past. Forty of the known 950 U.S. freshwater fish species have become extinct in the past 100 years. Also, 21 of the 310 known species or subspecies of U.S. freshwater mussels have become extinct since the turn of the century. National Research Council, Science and the Endangered Species Act 33-34 (1995) [hereinafter Science and the ESA].

(224) See supra notes 132-136 and accompanying text (explaining how the USFWS eliminated the Category 2 list).

(225) Notice of Final Decision on Identification of Candidates for Listing as Endangered or Threatened, 61 Fed. Reg. 64,481, 64,483 (Dec. 5, 1996).

(226) Review of Plant and Animal Taxa That Are Candidates for Listing as Endangered or Threatened Species, 61 Fed. Reg. 7596, 7596 (Feb. 28, 1996) (discussing the purposes of the candidate review and listing all of the candidate and already proposed species).

(227) Plaintiffs Memorandum in Support of Motion for Summary Judgment, Biodiversity Legal Found. v. Babbitt, No. 96-1156 (D.D.C. Sept. 20, 1996), at 7-8.

(228) BLF Wants Protection for Imperiled Frog; Says Refusal to List Violates Guidance, Endangered Species & Wetlands Rep., Oct. 1996, at 12 [hereinafter BLF Wants Protection for Imperiled Frog].

(229) Suit Wants Response to Petitions on California Yellow-Legged Frog, Endangered Species & Wetlands Rep., June 1996, at 8.

(230) Final Listing Priority Guideline for Fiscal Year 1997, 61 Fed. Reg. 64,476, 64,479-64,480 (Dec. 5, 1996); see also supra note 86 and accompanying text (discussing the Tier 3 category).

(231) Plaintiff's Memorandum in Support of Motion for Summary Judgment, Biodiversity Legal Found. v. Babbitt, No. 96-1156 (D.D.C. Sept. 20, 1996).

(232) Biodiversity Legal Found. v. Babbitt, Civ. No. Ca 96-1156 (D.D.C. Mar. 27, 1997), at 7-8 (memorandum and order granting defendants' Motion for Stay and granting plaintiffs' Cross-Motion for Summary Judgment).

(233) Id. at 7.

(234) City of Las Vegas v. Lujan, 891 F.2d 927 (D.C. Cir. 1989).

(235) Id. at 932.

(236) Id.

(237) Id. at 930, 932.

(238) See supra notes 143-55, 189-203 and accompanying text (discussing background facts and part of the court's holding).

(239) Friends of the Wild Swan, Inc. v. United States Fish and Wildlife Serv., 945 F. Supp. 1388, 1394-95 (D. Or. 1996).

(240) Id. at 1395.

(241) Id.

(242) Id. at 1396.

(243) Oliver Houck, The Endangered Species Act and Its Implementation by the U.& Departments of Interior and Commerce, 64 U. Colo. L. Rev. 277, 286-87 (1993).

(244) See id.; T. H. Watkins, The Protocols of Endangerment, Wilderness, Summer 1991, at 8 (cited in Vaughan, supra note 23, at 578 n.61).

(245) Fund for Animals, Inc. v. Lujan, No. 92-800 (D.D.C. 1992); see supra note 207 and accompanying text.

(246) Types and Number, supra note 39, at 39.

(247) April 10, 1995, is the date when the listing moratorium became effective. See supra note 78 and accompanying text.

(248) At the end of fiscal year 1991, a total of 651 species were on the endangered or threatened species lists. Types and Number, supra note 39, at 24. When the moratorium was enacted on April 10, 1995, 962 species were on the list. Paul Rauber, An End to Evolution. The Extinction Lobby in Congress is Now Deciding Which Species Will Live and Which Will Die, Sierra, Jan. 1996, at 28. A simple math formula gives an approximate average: (962 651) / 3.5 years (only half of 1995 should be used in the calculation due to the moratorium) 89 species a year.

(249) The listing budget in 1991 was $4.3 million. Candidate Species Deserve Decisions, Fund Argues, Endangered Species & Wetlands Rep., Sept. 1996, at 1, 2. The listing budget in 1992 rose to $8.1 million. Houck, supra note 243, at 294 n. 115. It stayed about at the same level until the moratorium hit. Id.

(250) In fact, in a 1990 audit report, the Inspector General of the United States Department of the Interior continually suggested that the USFWS advise Congress of its current difficulties and ask for more funding. See Audit Report, supra note 121, at 9-10.

(251) Restarting the Listing Program and Final Listing Priority Guidance, 61 Fed. Reg. 24,722, 24,726 (May 16, 1996).

(252) See supra notes 90-95 and accompanying text.

(253) Sept. 30 Deadline to Protect Florida Black Bear Passes, U.S. Newswire, Sept. 30, 1996, available in 1996 WL 12123224. A male Florida black bear requires "approximately 15,000 acres of habitat for survival." Id. However, its habitat was quickly being carved apart by road constructions, and cars increasingly hit and killed the bears as they tried to cross the roads looking for food. Even if federal moneys do not currently exist to implement a recovery program, at least federal transportation agencies should be required to conform new road projects to the survival needs of the Florida black bear. Id.

(254) Fund for Animals, Inc. v. Babbitt, No. 92-0800 SS (D.D.C. Jan. 30, 1997).

(255) Id. at 2-3.

(256) Id. at 3-4.

(257) Id. at 4. The USFWS probably delayed listing this species due to its wide range and potential economic impact on the economy of Florida to curtail road intrusions into bear habitat. See supra note 253.

(258) Fund for Animals, No. 92-0800 SS, at 5.

(259) Restarting the Listing Program and Final Listing Priority Guidance, 61 Fed. Reg. 24,722 (May 16, 1996); see supra notes 83-86 and accompanying text (discussing promulgation of the 1996 Guidelines).

(260) H.R. Conf. Rep. No. 97-835, at 19 (1982), reprinted in 1982 U.S.C.C.A.N. 2860; see supra note 56 and accompanying text (discussing the mandates of the 1982 congressional amendments to use a scientifically based priority system).

(261) Fund for Animals, Inc. v. Lujan, No. 92-800 (D.D.C. 1992).

(262) H.R. Conf. Rep. No. 97-835, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2862.

(263) Final Listing Priority Guidance for 1997, 61 Fed. Reg. 64,475, 64,477 (Dec. 5, 1996) ("Given the large backlogs of proposed species pending final action, candidate species awaiting proposal, and petitions, it is extremely important for the Service to focus its efforts on actions that will provide the greatest conservation benefits to imperiled species in the most expeditious manner.").

(264) Id. at 64,479-64,480.

(265) Id. at 64,476.

(266) 16 U.S.C. [sections] 1533(b)(3)(A) (1994).

(267) H.R. Conf. Rep. No. 97-835, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2862.

(268) See supra notes 67-72 and accompanying text (explaining how the "warranted but precluded" category functions).

(269) Glitzenstein and BLF indirectly challenged the validity of the 1996 Guidelines in their suit to force the Service to consider their petition to list the yellow-legged frog. Biodiversity Legal Found. v. Babbitt, No. 96-1156 (D.D.C. 1997) (memorandum and order granting Defendants' Motion for Stay and granting Plaintiffs' Cross-Motion for Summary Judgment). Glitzenstein's major disagreement with the USFWS 1996 Guidelines was that they illegally created a self-imposed listing moratorium of candidate species that completely ignored the previous 1983 Guidelines, many of the USFWS section 4 duties, the FFA settlement, and the congressional mandate to use a "scientifically based" system. Glitzenstein Testimony, supra note 28. In the yellow-legged frog case, the court agreed with BLF and Glitzenstein that the Service had no reason to excuse "its duty to issue a 90-day finding for the Frog," and found that the Service's "blaming their failure to act on a budget moratorium that ended almost one year ago is insufficient to relieve them of their statutory obligations under the ESA." Biodiversity Legal Found., No. 96-1156, at 5, 7.

(270) 1996 Guidelines, 61 Fed. Reg. 24,722 (May 16, 1996); see also Candidate Species Deserve Decisions, supra note 249, at 1.

(271) 61 Fed. Reg. at 24,726. For example, as of June 1996, FFA settlement candidate species which were excluded from listing under the new USFWS guidelines included the Mariana Fruit Bat, which had a maximum of 200 individuals remaining, the Northern Idaho Ground Squirrel, which had 600-800 individuals remaining, and the Riparian Brush Rabbit, which might have had as few as 170 individuals remaining. Glitzenstein Testimony, supra note 28. Also, the Florida black bear, which had been a candidate species for 14 years, was denied federal protection even though its numbers might have been as low as 500 to 1000 as of September 1996. Candidate Species Deserve Decisions, supra note 249, at 2.

(272) 61 Fed. Reg. at 24,726.

(273) See supra note 211-17 and accompanying text (explaining the Service's efforts to void its settlement obligations).

(274) The following was the conversation between Judge Sporkin and Mr. John Marshall, the lawyer representing the USFWS:

THE COURT: But then you're walking away from this agreement, and that's not fair either.

MR. MARSHALL: No, Your Honor, we are not. What we are doing is committing --

THE COURT: Yes, you are.

MR. MARSHALL:--to address a particular number of species --

THE COURT: No, you're totally changing the agreement and that's not right.

Fund for Animals, Inc. v. Babbitt, No. 92-800, at 44 (D.D.C. Sept. 24, 1996) (transcript of hearing before the Honorable Stanley Sporkin, United States District Judge for the District of Colombia).

(275) See supra note 269 and accompanying text (summarizing the district court's criticism of the USFWS attempted use of an expired listing moratorium).

(276) Supra notes 88-95 and accompanying text.

(277) See supra note 35 and accompanying text (explaining which criteria the Secretary can consider to determine whether a species warrants listing).

(278) 16 U.S.C. [sections] 1533(a)(1)(D) (1994).

(279) Proposal to List the Barton Springs Salamander as Endangered, 59 Fed. Reg. 7968 (Feb. 17, 1994).

(280) Withdrawal of Proposed Rule to List the Barton Springs Salamander as Endangered, 61 Fed. Reg. 46,608 (Sept 4, 1996).

(281) 59 Fed. Reg. at 7975-76.

(282) Save Our Springs v. Babbitt, Civ. No. MO-96-CA-168 (W.D. Tex. 1997), at 9.

(283) Id. at 18.

(284) Id. at 17.

(285) Id. at 18.

(286) 16 U.S.C. [sections] 1533(a)(1)(D) (1994).

(287) 12-Month Finding for a Petition to List the Queen Charlotte Goshawk as Endangered, 60 Fed. Reg. 33,784 (June 29, 1995) (codified at 50 C.F.R. pt. 17) [hereinafter Queen Charlotte Goshawk]. The Queen Charlotte's goshawk is a large predatory raptor which resided primarily in ancient forests in southeast Alaska and the Pacific coast of British Columbia. It generally lives in treetops and comes down only to hunt small birds and rodents. Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, 50 (D.D.C. 1996).

(288) 12-Month Finding for a Petition to List the Alexander Archipelago Wolf as Endangered, 60 Fed. Reg. 10,056 (Feb. 23, 1995) [hereinafter Alexander Archipelago Wolf]. The Alexander Archipelago wolf is a subspecies of the gray wolf, and its primary prey is the Sitka black-tailed deer. Of central concern is the destruction of the deer's old-growth habitat due to unsustainable timber practices. Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 24 (D.D.C. 1996).

(289) Alexander Archipelago Wolf, supra note 288, at 10,057.

(290) Queen Charlotte Goshawk, supra note 287, at 33,785.

(291) Id. at 33,784; Alexander Archipelago Wolf, supra note 288, at 10,056.

(292) Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996); Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23 (D.D.C. 1996).

(293) Southwest Ctr., 939 F. Supp. at 52; Biodiversity Legal Found., 943 F. Supp. at 26.

(294) 16 U.S.C. [sections] 1533(a)(1)(D) (1994).

(295) "[T]he Secretary . . . cannot use promises of proposed future actions as an excuse for not making a determination based on the existing record." Southwest Ctr., 939 F. Supp. at 52 (overturning the decision not to list the Queen Charlotte's goshawk); Biodiversity Legal Found., 943 F. Supp. at 26 (overturning the decision not to list the Alexander Archipelago wolf).

(296) Biodiversity Legal Found., 943 F. Supp. at 25 n.4 (referring to the United States Fish and Wildlife Service, Wolf Briefing Agenda (Oct. 31, 1994)).

(297) See United States Fish and Wildlife Service, Wolf Briefing Agenda (Oct. 31, 1994).

(298) See generally Is the Endangered Species Act Fundamentally Sound?, Cong. Digest, Mar. 1996, at 76-95 (giving arguments from both environmentalists who support the ESA and industry backers who see the ESA as an ineffective statute that unjustly infringes upon private rights).

(299) See, e.g., Thomas Lambert, Endangered Species Act: Facing Stiff Opposition, USA Today, Mar. 1996, at 32-33 (viewpoint from a strong critic of the ESA).

(300) See Kathie Durbin, Wildlife Agency Director Reflects on His Tenure, Oregonian, June 27, 1994, at B1 ("Yet [Plenert] admits there is a limit to that cooperation [between agencies]. The [United States] Fish and Wildlife Service is supposed to work on behalf of wildlife. The activities of other agencies--and sometimes his own--can conflict with that mission."); Eric Pryne, Why Isn't Lynx on Protected List?: Environmentalists Say It's Politics, Seattle Times, Mar. 26, 1995, at B1 ("Internal agency documents show all agreed last fall that the long-legged forest cat should be proposed for listing. Instead, the [S]ervice announced in late December that the lynx didn't warrant such protection."); Rob Taylor, Fish Lined Up, As Endangered Species List is Restored to Life, Seattle Post-Intelligencer, May 3, 1996, at C3 ("Federal officials say they hope to avoid mandatory measures [for new listings], which would spark controversy and be hard to enforce. Instead, Oregon and Washington are working to develop voluntary agreements. . . ."); E-mail interview with Jack R. Tuholske, supra note 203 ("In my opinion, I think [the US]FWS felt enormous political pressure from the Clinton administration, timber, and other industrial interests and the U.S. Forest Service not to list the bull trout, and that led to the bogus `warranted but precluded' finding.").

(301) Yaffee, another ESA commentator, noted in his 1982 book that "[t]he lousewort case suggests that the administrative process breaks up into a hierarchical procedure in which political considerations are increasingly incorporated at higher levels of the bureaucracy." Yaffee, supra note 97, at 89. This seems to be as true today, especially when considering cases like the "not warranted" Canada lynx finding.

(302) See generally Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 24 n.3 (D.D.C. 1996) (describing the regulatory process of making listing determinations).

(303) Id.

(304) Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 676 (D.D.C. 1997). Region 6 proposed to list the Northwest and Northern Rockies populations as threatened, and the Southern Rockies, Great Lakes, and Northeastern population as endangered. Id.

(305) Id. at 683.

(306) Id. at 676.

(307) Id.

(308) Id. at 685. Ironically, on remand, the USFWS made a "warranted but precluded" finding even though it gave the lynx a priority number of three. Thus, the imperiled United States lynx population remains a candidate species until next year's reevaluation. Amazingly, the only evidence the Service gave that it is making expeditious progress in other listing activities, a requirement for a "warranted but precluded" finding, is that it has completed 131 final determinations (which includes withdrawals of proposed rules) since the moratorium was lifted on April 26, 1996. 12-Month Finding for a Petition to List the Contiguous United States Population of the Canada Lynx, 62 Fed. Reg. 28,653, 28,657 (May 27, 1997) (to be codified at 50 C.F.R. pt. 17). However, the USFWS never mentioned current activities in the region where the listing would be processed, nor did it mention how many species with equal or higher priority numbers are ahead of it. Once again, this seems like a decision made on shaky legal grounds with strong political undercurrents.

(309) Defenders of Wildlife, 958 F. Supp. at 679.

(310) Id. at 685. The Director's decision not to list the lynx did not adequately counter the Region 6 biologists' findings that 1) current timber practices threaten lynx habitat, 2) illegal poaching has increased with greater access to forested areas, 3) there has been a "manifest failure to adequately protect" the lynx under existing regulatory mechanisms, and 4) increased competition from generalist bobcats and coyotes due to habitat degradation has increased the threat to the lynx. Id. at 683-84.

(311) E-mail Interview with Eric Glitzenstein, ESA Attorney (Feb. 17, 1997) (on file with author).

(312) Andrew K. Weegar, Did Politics Sink the Salmon Listing?, Maine Times, Mar. 30, 1995, at Section 1. In fact, David Carle of Restore: The North Woods noted that he had been getting calls from USFWS employees apologizing for the decision. Id.

(113) Id.

(314) Scott Sonner, White House is Criticized for Not Using Endangered Species Act More, L.A. Times, May 18, 1997, at B-5.

(315) See Pryne, supra note 300 ("[T]he [A]dministration has spent much of the past two years finding ways to reduce the Endangered Species Act's impact on private property.... The [A]dministration is seeking to mollify the [A]ct's foes. But it also may be alienating its friends."); see also Glitzenstein Testimony, supra note 28 ("Sadly, rather than deflect Congressional criticism of the ESA as some Administration officials evidently anticipated these actions [of allowing political considerations to dominate individual listing decisions] have merely served to reinforce the perception that federal protection of an imperiled species is a horrible evil to be avoided at all costs.").

(316) See generally Spitzberg, supra note 76 (discussing different bills proposed for ESA reauthorization).

(317) See, e.g., supra text accompanying note 3 (discussing how acting Director Rogers denied that politics has any influence in the listing process).

(318) See supra Part II.B (explaining how the priority ranking system functions).

(319) Habitat can be lost directly by clear-cutting forests, plowing grasslands, and draining swamps. Figures show that 26% of total forest area has been lost in the United States, while an average of 68% has been lost in 40 sampled African nations and 69% in 14 sampled Asian nations. Ehrlich, supra note 5, at 216. Also, habitat can be destroyed or changed indirectly through invasion by exotic species. Id. at 217.

(320) Id. at 216.

(321) Ecosystems in Danger, Report Says, Endangered Species & Wetlands Rep., Jan. 1996, at 8.

(322) Alan Beeby, Applying Ecology 5 (1993).

(323) See id. at 6 ("For much ecological work, the domain of interest is defined as much by the practicalities of the study, as by its biological scale."); see also Science: and the ESA, supra note 221, at 180 ("Species are relatively easy to identify. Ecosystems are difficult to define and certainly more difficult to manage.").

(324) See, e.g., Robert B. Keiter, Beyond the Boundary Line: Constructing A Law of Ecosystem Management, 65 U. Colo. L. Rev. 293, 294-96, 303 (1994) ("Embedded in the concept of ecosystem management ... are enormous complexities that natural resources managers are just beginning to confront.").

(325) See, e.g., Thomas Eisner et al., Building a Scientifically Sound Policy for Protecting Endangered Species, 269 Science 1231 (1995).

(326) Id.

(327) See Richard Haeuber, Setting the Environmental Policy Agenda: The Case of Ecosystem Management, 36 Nat. Resources J. 1, 9 (1996) (discussing how 18 federal agencies are currently exploring the use of ecosystem approaches to management and protection of the environment).

(328) 1983 Guidelines, 48 Fed. Reg. 43,098, 43,100-43,101 (Sept. 21, 1983).

(329) Id. at 43,101.

(330) Id.

(331) See Haeuber, supra note 327, at 3, 13-14.

(332) Notice of Interagency Cooperative Policy for the Ecosystem Approach to the Endangered Species Act, 59 Fed. Reg. 34,273 (July 1, 1994).

(333) Id. at 34,274.

(334) Denise Henne, Taking an Ecosystem Approach, Endangered Species Bull., Jan.-Feb. 1995, at 6.

(335) Id. at 8.

(336) Glitzenstein Testimony, supra note 28.

(337) Beeby, supra note 322, at 206; see also Mary E. Power et al., Challenges in the Quest for Keystones, Bioscience, Sept. 1, 1996, available in 1996 WL 9002431, at *3 (asserting that a keystone species is "one whose impact on its community or ecosystem is large, and disproportionately large relative to its abundance").

(338) Beeby, supra note 322, at 206.

(339) See Power et al., supra note 337, at *9 (explaining the different types of keystone species).

(340) Beeby, supra note 322, at 53-54.

(341) Determination of Endangered Status for the Conservancy Fairy Shrimp, Longhorn Fairy Shrimp, and the Vernal Pool Tadpole Shrimp; and Threatened Status for the Vernal Pool Fairy Shrimp, 59 Fed. Reg. 48,136, 48,147 (Sept. 19, 1994) (describing the endangered status of the vernal pool habitat).

(342) Eisner et al., supra note 325, at 1232.

(343) The number of species of an area (S) has been shown to be dependent upon the area (A). Mathematically, it can be represented as: S=c[A.sup.z], where z has a variable value of between 0.2 and 0.4 depending upon the group of organism and the type of area. Normally, a tenfold increase in habitat area will double the number of species within it. Id.

(344) See Bonnett & Zimmerman, supra note 106, at 111-13. Although the characteristics of the owl seem to fit the definition of an umbrella species, note that the Forest Service lists the owl as an indicator species. Id. at 111.

(345) Science and the ESA, supra note 221, at 200.

(346) This is in accordance with a recommendation by the Inspector General of the United States Department of the Interior. "Among the resource considerations should be whether to focus the orientation of the program on protecting ecosystems rather than individual species. This could result in providing aid to `key species,' which would then benefit a large number of other species." Audit Report, supra note 121, at 13.

(347) Endangered Species Act Amendments of 1988, S. Rep. No. 100-240, at 7 (1988), reprinted in 1988 U.S.C.C.A.N. 2700, 2707; see supra note 52 and accompanying text (discussing the emergency listing duties of the USFWS).

(348) Interview with Professor Daniel Rohlf, Professor of Law at Northwestern School of Law of Lewis & Clark College (Feb. 16, 1997).

(349) Endangered Species Act Amendments of 1988, S. REP. No. 100-240, at 7, reprinted in 1988 U.S.C.C.A.N. 2700, 2707; see also supra note 218 and accompanying text.

(350) Friends of the Wild Swan, Inc. v. U.S. Fish and Wildlife Serv., 945 F. Supp. 1388, 1394-95 (D. Or. 1996); see also supra notes 23942 and accompanying text (discussing Judge Jones's ruling in relation to emergency listings).

(351) See supra notes 56 and 260 and accompanying text (discussing congressional intent in terms of processing of candidate species).

(352) See Glitzenstein Testimony, supra note 28; see also supra notes 259-65 and accompanying text (discussing the implications of the 1996 Guidelines).

(353) Fund for Animals, Inc. v. Babbitt, No. 92-0800 SS (D.D.C. Jan. 30, 1997).

(354) The Office of Inspector General of the United States Department of Interior, in its audit report, repeatedly recommends that the USFWS inform Congress of its heavy regulatory burden and request more funding. See Audit Report, supra note 121, at 9-10, 13.

Ivan J. Lieben, Student, Northwestern School of Law of Lewis & Clark College, J.D. and Certificate in Environmental and Natural Resources Law expected 1998; Teaching Credential 1993, San Francisco State University; B.A., 1991, Biology, University of California at Berkeley. I wish to thank Professor Daniel Rohlf, who acted as a faculty advisor, for his lively discussions and his expert guidance in forming and polishing this Comment. I would also like to give special thanks to Eric Glitzenstein for assuring the accuracy of this paper and sharing his personal thoughts on ESA litigation. Many species are currently protected under the ESA due to Mr. Glitzenstein's valiant efforts in the courtroom as an advocate for those who have no voice. The Author greatly appreciates the staff of Environmental Law, especially Garry Breckon and Mike Supancich, for helping to edit this Comment. And finally, the author would like to thank his lovely wife, Karina, for putting up with endless hours of his being lost in front of the computer.