Judge Halts Settlement Over Hundreds of Endangered Species, Orders Parties Back to Negotiations

Turf War or Legitimate Concern ?

Earlier, we took a look at a recent settlement struck between the Interior Department and WildEarth Guardians that seeks to clear the logjam with species listings under the Endangered Species Act.

The settlement would ask the U.S. Fish and Wildlife Service to make up or down determinations on a host of species, either granting actual protections for warranted species and affording critical habitat to those that warrant protections or determining that they do not warrant protection.

At first glance, the settlement seems to have the potential to do a lot of good – assuming (big) that the U.S. Fish and Wildlife Service does the right thing.  However, groups like the Center for Biological Diversity objected, arguing that the agreement was too weak, too vague and ultimately unenforceable.  The group also objected to the fact that the would-be settling parties went behind CBD’s back, despite its previous involvement in negotiations, pushing the group out of involvement and making unwise concessions despite CBD’s effort and strong legal interest on a vast majority of the species involved.

Today, the Court agreed with CBD’s challenge of the settlement arguing that the way that WildEarth Guardians and the Interior Department went about its settlement was inappropriate, and ordered all parties back into negotiations:

Judge Halts Settlement Over Hundreds of Endangered Species, Orders Parties Back to Negotiations – Center for Biological Diversity Press Release 5/17/2011

WASHINGTON— In response to opposition by the Center for Biological Diversity, U.S. District Judge Emmet Sullivan today stayed approval of a controversial settlement agreement between WildEarth Guardians and the U.S. Fish and Wildlife Service until June 20 and ordered all parties, including the Center, back into mediation.

WildEarth Guardians reached a settlement with the agency last week to potentially move 839 imperiled species toward federal protection, including final protection decisions for 251 species that have been stuck on the “candidate” list, many for decades; but the Center objected that the agreement was too weak, too vague and ultimately unenforceable. The Center also objected to the fact that 87 percent of Endangered Species Act petitions affected by the agreement were petitioned or litigated by the Center and thus needed to be resolved with the Center’s approval.

“Today’s ruling gives us an opportunity to fix this deeply flawed agreement,” said Noah Greenwald, endangered species director at the Center. “These plants and animals need a strong, binding agreement that guarantees their protection.”

The Center was particularly concerned about terms in the agreement that would allow the Fish and Wildlife Service to unilaterally withdraw its commitment to list species, exclude a number of critically imperiled species, including the Pacific walrus and American wolverine, and limit protection of other imperiled species in the future.

“Protection of all the candidate species is long overdue,” said Greenwald. “The Fish and Wildlife Service can save these species — and respond to citizen petitions that call for increased attention to severely endangered plants and animals — by improving efficiency and reducing bureaucratic red tape.”


  1. mikepost Avatar

    The danger here is that CBD will be too intransigent and no settlement will ever come out of the negotiations. CBD has a history of blowing off any compromise in favor of protracted litigation with an “all or nothing” mindset. In the mean time another extinction takes place….

    1. Brian Ertz Avatar

      one of the dangers would have likewise been Interior’s ability to pull out of its end of the deal for any number of likely reasons.

      the agreement wasn’t enforceable – bureaucrats always have an excuse to avoid accountability and this settlement protected their ability to side-step the schedule for any number of undefined reasons – without even so much as a “good faith” clause.

      sometimes perceived gain is illusory. it takes tangibles to bring advancement to the ground. perhaps insisting on such accountability is what you refer to when you suggest “intransigence” ?

      1. mikepost Avatar

        Where there was a promise, however suspect, there is now nothing. Given CBD’s history of pushing for all or nothing deals, I am not encouraged. Good deals are made by people/orgs on both sides who can see what the other side needs and can negotiate their own needs in that context.
        Sometimes I think CBD people love the fight more than the outcome.

    2. JB Avatar


      It is important to note that Congress has refused to adequately fund the ESA/listing for decades, and the problem with listings (when they get politicized) resides primarily with political appointees–not “on the ground” biologists. Blaming “Interior” for the failures of the ESA plays into the hands of those that would do away with the Act altogether.

    3. Maska Avatar

      Odd, but I seem to recall that only a few short weeks ago, CBD was being castigated along with a number of other litigants for caving in when they tried to avert the Tester/Baucus rider by working out a settlement on Northern Rockies wolves that actually had more teeth than this one.

  2. Tilly Avatar

    You’re right about the lack of funding, which is why it was so downright appalling when the Obama admin., rather than asking for more funding to do the job right, recently asked Congress to LIMIT its listing budget or the numbers of species it could list, presumably because this would provide a good “excuse” in court.

    As Pat Parenteau put it in this article: “We’re pushing species to extinction every day, and it’s an overwhelming job, frankly, that the Fish and Wildlife Service has,” Parenteau said. “But is the answer to put your head in the sand and say, we’re not going to do it?”


    1. JB Avatar

      ““It is undoubtedly the case that the resources and the staffing for the Fish and Wildlife Service are inadequate,” said Bob Irvin, senior vice president for conservation programs at Defenders of Wildlife in Washington. “The question is, is tying the service in knots the best way to save the web of life?”

      In its 2012 budget request, the service estimated that in 2011 it will be able to make final listing decisions on only 4 percent of warranted petitions within one year as required by law, down from 12 percent in 2010.”

      I don’t think anyone is putting their head in the sand. Rather, the FWS/NMFS are overwhelmed by the number of petitions they receive, given their resources. When environmental groups push the agency to the brink of failure (most would argue decisions in 4/100 cases is pretty good evidence of failure), they put ESA detractors–who claim the Act is “broken”– in a better position.

      For this reason, I think the strategic approach (looking for species whose protection would benefit many other species) is far more effective.

  3. Tilly Avatar

    I agree with you, but that’s not was FWS was asking Congress for earlier this spring. Rather, they were asking for their listing budget to be CAPPED, to use as an excuse in court. That doesn’t help solve anything, and is shameful. This article better explains it:


    Maybe things will change under this new settlement deal, if it goes thru- I don’ t know.

    1. JB Avatar


      It is important to point out that they did not ask for funding to be capped to handle listing determinations but rather listing petitions. The problem is that the agencies must (by law) make a judgment on these petitions within 90 days; thus, when CBD sends a petition that names dozens of species, they can easily overwhelm the capacity of the agency. Moreover, these petitions pull them away from internal (i.e., non-petition) listing determinations.

      So while I do not like the idea of limiting the petition budget to create an excuse for the agencies, I also fault groups that overwhelm the capacity of the agencies by sending dozens of petitions over simultaneously. Again, strategic petitions would be a better way of getting things done.

  4. Brian Ertz Avatar

    There is a species crisis underway in our country – and the world – life is diminishing right now. Hundreds of species are deserving of just consideration for protection under the ESA, from a biological – and legal – perspective. Citizen oversight and involvement ought be encouraged as the law provides. Is it reasonable to believe that if citizens just let the bureaucrats decide then somehow they’d be more likely to do their job and avert the crisis ? No. Citizen groups filing petitions, bringing lawful attention to the crisis, is not the problem – don’t kill the messenger – I think it’d be more likely that the crisis would go less noticed if left to the bureaucrats, under direction of the politicians, to decide.

    Who then is responsible when political appointees and bureaucrats alike contribute to avoidance of this ? Does it solve anything to “pick a few” to bring attention to ? No. The biological crisis underway needs to agitate to the bureaucracy – only then do folk who care about species extinction find leverage to ‘pick and choose’ species to extend protections to that will have the greatest likelihood of steering toward a meaningful recovery for the most, or more likely a less hasty demise. Left to the bureaucrats and politicians the resources of the Act are unlikely to serve more than a few economically benign bugs endemic to a few isolated islands off the Pacific.

    1. JB Avatar

      Well, we can agree that such petitions certainly “agitate the bureaucracy”, but we will have to disagree on how effective that “agitation” is for promoting the conservation of biodiversity (and IMO, analogies about “shooting the messenger” break down when that messenger is also the “agitator”–everyone wants to “shoot” the agitator, which is sort of the point).

      I wonder, what is the net biodiversity gain of several dozen more “warranted but precluded” findings? If FWS/NMFS biologists are tied up doing research to satisfy listing petitions, who is left to write recovery plans or put together conservation agreements?

      One way CBD might avoid some of the criticism it has faced recently is to take some of the money they spend having lawyers draft listing petitions and buy valuable habitat–or use their resources to lobby Congress for more funding for the ESA.


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Brian Ertz