Endangered species logjam broken
Copyright 2001 Arizona Daily Star
June 21, 2001
By HOWARD FISCHER
Interior Secretary Gale Norton can't drag her feet and refuse to act on efforts to list animals as endangered species, the 9th U.S. Circuit Court of Appeals ruled Wednesday. The three-judge panel rejected contentions by the Department of Interior that simply saying it was considering a species for protection allows it to avoid the deadlines set by Congress to make a decision. Wednesday's ruling most immediately orders Norton to consider the Gila chub, a minnow living in the rivers of central and southeast Arizona which has been a "candidate" for listing for 19 years. The Tucson-based Center for Biological Diversity sued in 1999 after Bruce Babbitt, Norton's predecessor, failed to act. But Kieran Suckling, the center's executive director, said that by voiding Department of Interior policy the ruling should clear the way for action on 149 species that are listed as candidates. "The 'candidate' list has become a bureaucratic limbo," said Suckling. In fact, he said, 39 species which have been on that list -- some for as much as 20 years -- have gone extinct waiting for government action. "This is going to be a watershed event in the Endangered Species Act," Suckling said, with the ability now to force the Bush administration to act.
Joan Moody, a publicist for the Department of Interior, said her agency was still reviewing the ruling and would not comment. Federal law allows individuals or groups to petition for species protection. Once a petition is filed, the Interior Secretary has 90 days to decide whether there is "substantial scientific or commercial information" showing the petition may be warranted. If that is true, she has an additional nine months to decide whether the species should get protection, whether listing is unwarranted, or if protection is appropriate be precluded by other proposals. The chub, a minnow averaging 5 to 8 inches in length, first appeared as a candidate for listing as early as 1982 and now lives in fewer than 15 streams in the Gila River basin in central and southeastern Arizona. The Chiricahua leopard frog, first considered in 1991, averages 3 to 4 inches long with what the Center describes as a unique snore-like mating call. It has been found on the Mogollon plateau in Arizona and New Mexico and the "sky islands," mountain ranges in southeast Arizona, southwest New Mexico and northern Mexico. When there was no action on either by mid 1998 the Center filed petitions to protect both under the Endangered Species Act. Babbitt did nothing, saying that because both already were "candidates" then they fell under the "warranted but precluded" section of law. U.S. District Judge John Roll refused to order him to act. Babbitt finally did propose listing the frog last year. That resolved the issue for the frog. But Berzon said the court is weighing in to state that Babbitt -- and now Norton -- have no choice but to follow the law and act within the time frames set by Congress on all petitions. "The statute is not at all ambiguous, but instead is exquisitely clear, concerning what the Secretary (of Interior) must do when she receives a petition," Berzon said. She said that reflects the intent of Congress for prompt action -- and not what could be delay after delay by simply declaring a species a "candidate" for listing. "The cases of both the frog, which the Secretary identified as a candidate in 1991 ... and the chub, which has been a candidate for nearly two decades without ever being the subject of formal findings, demonstrate that potentially qualified species may sit on candidate lists for extraordinarily long periods before becoming the subject of protective rules," Berzon wrote. "It was precisely these situations that Congress intended the petitioning process to interrupt ... by requiring immediate review."