Dr. Rob Dillon, Coordinator

Friday, October 7, 2011

Megapetitions III: The 17-month, 90-day finding

On 27Sept11, the US Fish and Wildlife Service published "Partial 90-Day finding on a petition to list 404 species in the southeastern United States as endangered or threatened with critical habitat (1)." Cradled deep in the bottom of this stupendous ark-full of creatures were 43 species of freshwater gastropods: 15 Mobile Basin pleurocerids, 9 Tennessee Basin pleurocerids, 10 Florida hydrobiids, and 9 miscellaneous. A pdf with the specifics is downloadable from note (2) below. Any of us with "scientific and commercial information" relevant to the listing of these 43 species is requested to transmit such data to the FWS by November 28.

What a dramatic turn of events! In the first episode of our long-running series (3), we were introduced to the Center for Biological Diversity, a posse of lawmen riding out of the American West "with a vision and a solar-powered fax machine," filing megapetitions to list 32 miscellaneous gastropods from the Pacific Northwest in 2008 and 42 Great Basin springsnails in 2009. In our second episode (4), the CBD gunslingers upped the ante with their (2010) "Petition To List 404 Aquatic, Riparian And Wetland Species From The Southeastern United States" even as the lily-livered WildEarth Guardians, an outfit with similar goals if not similar fortitude, was settling with the FWS black hats.

Now we learn that the standoff between the CBD and the FWS was resolved on July 12, and that a federal judge has approved a settlement of the case on September 9 (5). And that the CBD has declared an "historic victory (6)."

And in today's episode, sure enough, the FWS seems to have run its finger lightly through the CBD Southeastern list, trimmed 30 species (most already under consideration - Note 7) and forwarded the remaining 374 to us for comment in a lightning-fast 16 days. Presumably we will see similar "notices of review" regarding the 32 Pacific Northwest and 42 Great Basin species published in the Federal Register shortly. Those of you with expertise in western faunas are hereby alerted to be on the lookout.

Throughout the saga thus far, the matters at contest have been entirely legal. The endangered species act specifies a strict timetable: 90 days from the receipt of a petition to the publication of a "Notice of Review," 12 months of "status review" to decide whether a species warrants listing, another 12 months (if warranted) to publish a proposed rule, and another 12 months of hearings and fussings to publish the final rule. The CBD has not been suing the FWS over any scientific question, but simply to have a legal timetable enforced.

So at this point, it has taken 17 months for our 374 southeastern species to advance through the first 90 days of the process. (And of course, the Pacific Northwest and Great Basin species have been in the pipeline for several years without reaching their 90-day marks as yet.) How long might the next step of this process take? Quoting directly from the FWS Headquarters press release of 26Sept11, "At this time, however, the 12-month findings are not scheduled to be completed within the next six years due to the priorities detailed in this court-approved work plan (8)."

There it is. This reminds me of one of my favorite lines from one of my favorite movies, Mary Poppins. Early in the movie, Mr. Banks comes home and demands to know where his children are. To which Katie Nanna replies, "The children, to be precise, are not here."

So our 12-month status review, to be precise, will not be complete within six years. A tip of the Stetson to Sheriff Noah Greenwald, and all his posse at the CBD, for an "historic victory" indeed.

But let's not get ahead of ourselves. Meanwhile, back at the ranch, the FWS has given us ordinary cowpokes precisely 60 days to submit the "best scientific and commercial data" we've got regarding the 43 southeastern freshwater gastropod species listed in Note (2). That 28Nov deadline is looming large. Hurry, everybody.


(1) Endangered and Threatened Wildlife and Plants; Partial 90-day finding on a petition to list 404 species in the southeastern United States as endangered or threatened with critical habitat. Federal Register 76(187): 59836-62. [PDF]

(2) The 44-1 freshwater gastropod species listed in the 27Sept11 FWS finding are tabulated in the pdf document below. This document is modified and updated from a similar excel spreadsheet I posted on 18May11: [CBD-southeast-endangered.pdf]

(3) Megapetitions of the Old West [14July09]

(4) Megapetitions II: Armistice Day? [18May11]

(5) The best collection of documents related to the lengthy legal battles between the FWS, the CBD, and the WEG seems to be available from the FWS website:
Improving ESA Implementation

(6) Here's the announcement from the Center for Biological Diversity:
Historic Victory: 757 Species Closer to Protection

(7) Among the 30 species trimmed from CBD's original 404 was "Elimia" (or Leptoxis, or God-knows-what) melanoides from Alabama's Black Warrior River. That particular taxon has already been on the formal candidate list maintained by the FWS since 2006.

(8) FWS Virtual News Room - US Fish and Wildlife Service Finds 374 aquatic-dependent species may warrant endangered species act protection. [26Sept11]