Last week, the American Stewards of Liberty (ASL), Texas Public Policy Foundation (TPPF), and Osage Producers Association (OPA) filed a friend-of-the-court brief in a case challenging the U.S. Fish and Wildlife Service’s (Service) decision to downlist the American burying beetle (ABB) from endangered to threatened under the federal Endangered Species Act (ESA). The case was brought by the Center for Biological Diversity (CBD) against the Service in the U.S. District Court for the District of Columbia. The Service’s decision to downlist was in part a result of a petition filed by ASL, TPPF, OPA, and others.
“The opposition by liberal environmental groups to downlisting the ABB shows once again their true motives in maintaining regulatory control over private property, rather than recovery of species,” commented Robert Henneke, TPPF General Counsel. “We should be celebrating the downlisting of the ABB as a step in the right direction, rather than perpetual litigation.”
ASL and others petitioned the Service to remove the ABB from the list of endangered species in August 2015, noting that the species’ range had expanded from 473,000 acres at the time of listing under the ESA to more than 51,000,000 acres at the time the petition was submitted, and that the species’ population had gone from a few hundred individuals to more than 40,000.
The Service made an initial determination that the petition presented substantial information indicating delisting the ABB was warranted, but failed to make a more detailed finding as was required under the law.
ASL, TPPF, and OPA subsequently sued the Service in 2017, for the agency’s failure to timely publish the required finding on whether delisting the ABB was, in fact, warranted. The parties settled that case and, as a result of the settlement agreement, the Service agreed to a deadline by which it must make a decision on the petition. Ultimately, the agency downlisted the ABB from “endangered” to “threatened” in 2020, citing climate change as a future threat to the species.
“Challenging the downlisting of the ABB when the dramatic increase of species and expansion of habitat warrants removal from the endangered list, demonstrates that radical environmentalists are not interested in science-based outcomes,” commented Margaret Byfield, Executive Director of ASL. “They are only interested in controlling America’s land.”
In connection with the downlisting, the Service also issued what is known as a “4(d) Rule,” which provides that development and other activities in the southern portion of the ABB’s range (e.g., Arkansas, Kansas, Oklahoma, and Texas) are not prohibited unless they occur within specially conserved areas. The 4(d) rule allows landowners to pursue activities that disturb the ground within the ABB’s range. Prior to the rule, they were potentially subject to enforcement under the ESA, or required long and expensive permitting to avoid liability.
The downlisting of the ABB is just one of ASL’s success stories. On March 28, 2019, in a case brought by ASL and others, the U.S. District Court for the Western District of Texas overturned the Service’s denial of ASL’s petition to delist the Bone Cave harvestman, finding that the agency’s denial was unreasonable. CBD intervened in that case as well. On October 10, 2019, the Service published a finding that ASL’s petition to delist the Bone Cave harvestman presented substantial scientific and commercial information indicating delisting may be warranted. The agency is expected to publish a final decision on the petition later this year.
Byfield noted that actions by radical environmental groups pushing unwarranted federal endangered listings cause real harm to Americans. Citing a decision made by the Environmental Protection Agency in January to prohibit the use of a weed killer believed to impact the ABB, farmers in 217 counties across three states were uncertain whether they would be allowed to plant their spring crops. Fortunately, the EPA reversed this decision after a coalition of agriculture groups and policy leaders asked for a review.
“Unwarranted endangered listings give the federal government enormous power over the small landowner who cannot afford to have a team of lawyers on retainer. It is America’s middle class that is hurt the most by the environmental regulations, promulgated in the name of ‘conservation’,” Byfield stated.
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