Lawsuit to force dozens of NW species under ESA protection

ESA Law Alert: Conservation Advocacy Group Files Lawsuit to Force ESA Decisions on Dozens of Pacific Northwest Species
By Ryan Steen
Stoel Rives LLP, Attorneys at Law

In February 2010, the Center for Biological Diversity (“CBD”) filed a lawsuit in the U.S. District Court for the District of Oregon alleging that the U.S. Fish and Wildlife Service (the “Service”) violated the Endangered Species Act (“ESA”) by failing to take action on a number of listing petitions. The lawsuit implicates a wide range of Pacific Northwest species including the Dusky Tree Vole, the Lake Sammamish Kokanee, the Black-Footed Albatross, and 32 mollusk species. An ESA listing of any of these species could have significant implications for activities occurring in or near areas inhabited by the species.

Under the ESA, a species may be listed as “endangered” if it “is in danger of extinction throughout all or a significant portion of its range” or “threatened” if it is “likely to become an endangered species within the foreseeable future.” The process of listing a species can be initiated by the Service or by a citizen petition. Once a species has been petitioned for listing under the ESA, the Service, “to the maximum extent practicable,” must make a determination within 90 days as to whether the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” If the Service determines that a listing may be warranted, it must issue a finding within 12 months that: (i) a listing is warranted (in which case a proposed listing rule is issued); (ii) listing is not warranted; or (iii) a listing is “warranted but precluded” by higher priority actions.

All of the species at issue in CBD’s lawsuit have been petitioned for listing under the ESA. The Service issued 90-day findings that a listing may be warranted for the Dusky Tree Vole, the Lake Sammamish Kokanee, and the Black-Footed Albatross, but it has not yet issued a 12-month finding for any of those species. The Service has not yet issued a 90-day finding for the 32 Pacific Northwest mollusk species that have been petitioned for listing. CBD’s lawsuit alleges that the Service’s failure to issue 12-month and 90-day findings, respectively, for these species violates the ESA. CBD asks the Court to issue an injunction requiring the Service to make these findings by a specific date.

CBD’s lawsuit has potentially significant implications for activities occurring in or near areas inhabited by these species. The Dusky Tree Vole inhabits a wide range of forested areas throughout the Cascade Mountains in western Oregon and northwest California. The Lake Sammamish Kokanee, as its name suggests, occurs in the streams and lakes of the Lake Washington-Sammamish watershed in Washington. The Black-Footed Albatross is a large seabird that occupies areas of the Pacific Ocean and nests in Hawaii and Japan. Finally, the 32 mollusk species at issue in CBS’s lawsuit include 15 spring snails, two river snails, 13 land snails, and two slugs that occur in a variety of areas throughout the Pacific Northwest. CBD’s complaint alleges that these mollusk species are threatened by “logging, grazing, wildlife, controlled burning, road construction and maintenance, pesticide application, agriculture, recreation, urbanization, mining, the spread of invasive species, global climate change, water pollution, dams, diversions, and stream destruction and development.”

Stoel Rives has a broad depth of experience covering all aspects of the ESA. Our attorneys advise clients on various aspects of the ESA listing process as well as represent a number of clients in litigation involving significant ESA listing petitions. If you have any questions about the issues raised in this alert, please contact:

Greg Corbin at (503) 294-9632 or [email protected]
Barbara Craig at (503) 294-9166 or [email protected]
David Filippi at (503) 294-9529 or [email protected]
Beth Ginsberg at (206) 386-7581 or [email protected]
Jeff Leppo at (206) 386-7641 or [email protected]
Jason Morgan at (206) 386-7641 or [email protected]
Cherise Oram at (206) 386-7622 or [email protected]
Ryan Steen at (206) 386-7610 or [email protected]

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