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![handle is hein.animal/wilnwq0009 and id is 1 raw text is:
Published by the Center for Wildlife Law, nstitute of Public Law, University of New Mexico School of Law
I Endangered Speciesj
To list or not to list, that is the question
T he Secretary of the
Interior may not use
budgetary constraints as
an excuse to delay manda-
tory findings under the Endangered
Species Act. Center for Biological
Diversity v. Norton, No. CIV 01-
0258 PK/RLP (U.S.Dist.Ct.,
D.N.M., July 31, 2001).
Plaintiffs petitioned the U.S. k
Fish and Wildlife Service to list the Sacramento Moun-
tains checkerspot butterfly on January 28, 1999. On
December 27, 1999, the Service concluded that the
petition presented substantial evidence that listing may be
warranted. Under 16 U.S.C. § 1533(b)(3)(B) of the
ESA, the Service was then required to make a finding of
whether listing was warranted by January 28, 2000.
Although the Service prepared a draft, the finding was
not published.
Plaintiffs filed this suit arguing that the Secretary
violated § 1533(b)(3)(B), and that she should be ordered
to issue a 12-month finding within 30 days. The Secre-
tary conceded that she had violated the provision, but
contended that she should have until January 15, 2002 to
complete the finding.
The plaintiffs argued that 30 days is all the time that
is required. The Secretary argued that all funds for the
region in which the butterfly is located are tied up
complying with other orders under the ESA, including
re-designation of critical habitat for the Rio Grande
silvery minnow. The court found that financial consider-
ations are not relevant to the requirement for action.
Here the financial predicament was, according to
the court, largely of the Secretary's own making. Lack
of funding is in part a consequence of Interior's propos-
als for appropriations at levels inadequate to meet all the
ESA's requirements. As a result, the Service violates the
ESA on numerous occasions, lawsuits follow, and a
greater portion of the budget is
spent on litigation support, includ-
ing attorney's fees and costs.
Without adequate funding or a
change in the mandatory tasks
outlined in the ESA, the Service will
continue to be unable to meet its
mandatory requirements under the
Act. The court found that it was
_without discretion and that the
solution to [the] problem lies not in the courts, but with
Congress.
Action required on listing
petitions
T he policy adopted by the U.S. Fish and Wildlife
Service that governs review of citizen petitions
to list candidate species under the Endangered
Species Act (ESA) is inconsistent with the ESA's strict
requirements. Center for Biological Diversity v. Norton,
No. 00-16020 (9th Cir., June 20, 2001). Relying on the
policy, the Secretary of the Interior refused to publish
findings in response to petitions to list the Chiricahua
leopard frog and the Gila chub. The court ruled that this
reliance was misplaced.
There are two methods for listing species under the
ESA. First, the Secretary of Interior may publish a rule
proposing that a species be listed if it meets one or more
of several criteria. Within 12 months, the Secretary must
either list the species or withdraw the proposed rule.
ESA regulations also permit the Secretary to find that
listing may be warranted, but that available evidence is
ESA LISTING-continued on page 3
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