Sometimes you have to fight fire with fire.
The agencies in charge of federal public land have developed a penchant for “sue and settle” — some friendly environmental group files suit to demand protection of some weed, bug, minnow or rodent and the agency compliantly settles.
The U.S. Fish and Wildlife Service did just this in 2011 settling with the WildEarth Guardians and the Center for Biological Diversity and agreeing to set up a schedule for listing or not listing 251 species under the Endangered Species Act (ESA).
The deadline for the bi-state sage grouse in Northwestern Nevada was a couple of months ago. The deadline for listing the greater sage grouse, which live in most of the state, is set for September 2015, though a rider on a spending bill by Rep. Mark Amodei may delay that.
Fish and Wildlife listed the bi-state grouse as endangered, but backed off when its scientific data was challenged. Especially telling was that a Fish and Wildlife report found core populations of bi-state grouse had actually increased by between 120 and 144 percent.
A couple of weeks ago a coalition of public and private groups filed their own lawsuit in Nevada’s U.S. District Court challenging the legality of that 2011 court settlement.
The suit was filed by the Nevada Association of Counties, Nevada Mineral Resources Alliance, the American Exploration & Mining Association, and FIM Corp. – a family-owned million-acre sheep ranch in Northern Nevada.
To begin with, the suit points out that Fish and Wildlife agreed in the settlement to either list or not, entirely leaving out a third option required by the ESA — “listing is warranted but precluded because the species at issue has a lower listing priority as compared to other species.”
This error is compounded by the fact Fish and Wildlife has failed to follow the congressional requirement under the ESA that species that are candidates for listing must be re-evaluated once each year using the best scientific and commercial data. The agency in a letter from its regional office reported that it will not be completing this annual review because it is too busy implementing the lawsuit settlements.
The suit claims expensive efforts by the state and local governments to protect sage grouse habitat were ignored.
The lawsuit against Fish and Wildlife also argues that its settlements with the environmental groups violate the Due Process Clause of the Fifth Amendment because they bind nonparticipating third parties, in this case the plaintiff counties and businesses.
“The due process clause of the Fifth Amendment to the Constitution forbids
government practices and policies that violate precepts of fundamental fairness,” the suit says. “Here, FWS’s decision to forego a specific statutory provision, to the detriment of the Plaintiffs, denies Plaintiffs due process and is fundamentally unfair to Plaintiffs.”
The suit further accuses Fish and Wildlife of violating the constitutional requirement of separation of powers by binding the executive branch to settlement that transfers powers of Congress to special interest litigants.
The damages caused by listing of species are not vague and speculative. They are specific and calculable.
The FIM sheep ranch reports that the earlier listing of the Sierra Nevada Bighorn Sheep under the ESA has cost the operation approximately $400,000 per year since 2000, and it believes the listing of the sage grouse will cause similar or greater damage to its bottom line due to grazing prohibitions and other restrictions.
The courts should give this case its urgent attention to curtail further damage to the economy of Nevada. — TM