Federal Agencies Seek to Stifle Citizen Participation in ESA Listing Process

In May, the US Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) proposed what could arguably be considered two of the most detrimental changes ever to the listing process under the Endangered Species Act (ESA).

The first proposed change would require any individual or organization petitioning to have a species listed for protection under the ESA to first provide notice of the petition to all states in the range of the species and attach any and all information that these states want to have included with the petition. It also requires the states to first certify that all relevant information has been included with a petition before it could be filed with the relevant federal agency.

This proposal provides states with the means to derail attempts to list species should they wish to do so. It essentially requires the states’ permission before a petition can be filed—despite the fact that many species are in trouble (and in need of federal protection under the ESA) precisely because the state or states in which they live have failed to take the proper steps to protect them and their critical habitat.

The second proposal is to bar petitions that propose to list more than one species at a time—another measure that would increase the amount of work that citizens and organizations like AWI have to do in order to protect species that occupy the same area and may face similar threats. This proposal would also create more work for the agencies themselves, as every time a separate listing petition is submitted, they have to publish a federal register notice and collect public comments.

Not only is it clear that both of these proposals would make it more difficult for imperiled species to get the protection that they need, but they are also arguably illegal. The USFWS and NMFS do not have the authority to regulate the behavior of private citizens in the ESA listing process before a petition is filed. Citizens preserve certain constitutional and administrative rights that US agencies are not authorized to infringe, particularly since the ESA is not even “activated,” so to speak, until an actual petition is filed with the agency (or a species is listed). The USFWS and NMFS have effectively proposed to tell all of us what you can and cannot write and include in a listing petition.

NMFS has only signed onto one of the proposals (the ban on multi-species petitions). Although the agencies claim that this is because there are “greater logistical difficulties” when it comes to coordinating state participation on marine species, some advocates feel that NMFS bowing out of this requirement highlights just how very controversial (and potentially illegal) this proposed rule actually is.

The proposed rules also have advocates wondering what interests are at play here, since neither of the rules provide a benefit to the species or the agencies. The only apparent benefit is to states and private interests that oppose certain species being listed in the first place—interests that the USFWS and NMFS should not be placing before the protection of endangered species.