FWS Director Defends Obama Administration Handling of ESA Revisions, Lawsuits

Published June 1, 2016

In testimony before the U.S. House Oversight and Government Reform Subcommittee on the Interior (OGRSI), U.S. Fish and Wildlife Service (FWS) Director Dan Ashe denied allegations the Obama administration colluded with conservation groups when it formulated its modifications to the Endangered Species Act (ESA) and when it settled lawsuits with environmental lobbyists concerning ESA listing deadlines.

Proposed Listing Procedures Revised

Recently, the Obama administration announced it plans to scale back its proposal to require greater state input before groups propose listing animals and plants as “endangered” or “threatened” under the ESA.

The original proposal would have required petitioners to solicit data on species from state wildlife agencies in the states where the species exist, to include the data in their listing petition, and to provide a copy of the petition to potentially affected state wildlife agencies prior to submitting the petition to FWS.

“The decision by the U.S. Fish and Wildlife Service to modify its proposed changes to the process by which species are petitioned by third parties for listing under the Endangered Species Act is just politics as usual,” said Brian Seasholes, director of the Endangered Species Project at the Reason Foundation. “The modification, according to FWS Director Ashe, is apparently in response to objections from pressure groups and members of Congress that are proponents of the [ESA].”

Rep. Cynthia Lummis (R-WY), chairwoman of OGRSI, stated during the hearing she was disappointed FWS revised the proposed rule.

“I was disappointed to see that U.S. Fish and Wildlife Service revised the proposed rule for the process to consider listing petitions,” Lummis told Ashe.

“I had previously complimented the proposed rule because it gave states a larger involvement in the process and improved the quality and accuracy of the species information being submitted to the Fish and Wildlife Service,” Lummis said. “Groups involved in the environmental litigation industry, who are trying to protect their own turf, may have had influence over the end result of that because they’re making a business of suing you over petitions. Catering to litigation-focused interests isn’t going to get us anywhere.”

Ashe acknowledged some members of Congress and environmental groups strongly objected to the proposal, even though Ashe says he does not believe the “original proposal that we made … was excessively burdensome.”

“So we have backed off on that,” said Ashe. “But we haven’t backed off on the basic proposition that [groups requesting a status review] should notify the states 30 days ahead of sending a petition to us.” 

Questions About Collusion

Republican members of OGRSI also peppered Ashe about whether the Obama administration is colluding with environmental groups who sue FWS, because the agency often fails to fight the conservation groups in court. The Republican congressmen claimed those groups are setting their agenda behind closed doors through sue-and-settle agreements, which are outside the normal ESA listing process and exclude state and public input.

In response to questions about possible collusion from Rep. Gary Palmer (R-AL), Ashe testified the agency does not have enough resources to always meet the deadlines set out in ESA, so it does not fight deadline-driven litigation it can’t win.

“The Justice Department won’t take that case on appeal because we’re going to lose it,” Ashe said.

‘Playing Politics’

“The willingness of the Fish and Wildlife Service to kowtow to environmental lawsuit mills by withdrawing the common-sense petition proposal shows the agency is more interested in playing politics than meaningful reforms that would result in more effective species conservation and more efficient use of scarce resources to achieve this,” Seasholes said.

“This is a common-sense proposal, because states often have the best data on these species and because petitioners often ignore these data [as part of their] efforts to make species appear to merit listing under the Endangered Species Act,” Seasholes said. “The decision by the U.S. Fish and Wildlife Service to remove these provisions from the proposal only insures petitions will continue to be submitted with low-quality data, which will lead to poor conservation outcomes for the very species that are supposed to be helped and [will waste] state, federal, municipal, and private sector resources protecting species that may not warrant protection.

“The bar needs to be raised to improve the quality of the data upon which the Endangered Species Act is implemented, not lowered,” said Seasholes.

Alyssa Carducci ([email protected]) writes from Tampa, Florida.