Environmental Litigation: Information on Endangered Species Act Deadline Suits
Released: 2017-02-28T00:00:00

Letter

Background

FWS, operating through its headquarters and eight regional offices, is responsible for managing 1,586 of the listed species found in the United States (see fig.1). NMFS, operating through its headquarters and five regional offices, is responsible for managing 96 listed species. In addition, the Services have proposed an additional 41 species for listing, but as of January 2017 had not yet made a final determination on listing those species. Additionally, since enactment of the ESA, the Services have delisted 76 species—47 as a result of recovery efforts, 10 due to the species’ extinction, and 19 because of data errors in the original listing.

The Services’ Section 4 programs encompass all actions related to listing or delisting species, designating or revising critical habitat, and conducting 5-year status reviews for listed species. Regarding listing or delisting a species, the process begins either through a petition submitted by an individual, group, or state agency or a review initiated by one of the Services. For petitions to list a species, the Service with jurisdiction over the species follows a multi-step process to determine if the listing of the species is warranted, as depicted in figure 2. For the species that the relevant Service determines warrant listing, the Service issues and publishes a proposed rule in the Federal Register. The issuance of a proposed or final rule to list a species is generally governed by procedures prescribed in the ESA and Administrative Procedure Act, such as providing opportunities for the public to submit additional information and comment on proposed rules. After evaluating any additional information and comments, if the relevant Service determines that the species is threatened or endangered, it generally issues a final rule to add the species to the respective list. FWS also maintains a “candidate” list for those species it determines warrant listing, but has determined that the immediate listing of the species is precluded by work on higher priority listing actions, such as actions for other species facing greater threats. Each year FWS publishes a Candidate Notice of Review that documents the Service’s re-evaluation of the status and threats facing each candidate species to determine whether the species should be removed from the candidate list and either proposed for listing or withdrawn from further consideration. As of December 2016, there were 30 species identified by FWS as candidates for listing.

When a species is proposed for listing, the act requires the Services to concurrently consider whether there are areas essential to the species’ conservation and if so, to propose designation of critical habitat for the species. Critical habitat may include areas occupied by the species— such as areas that provide food, water, cover or shelter, or sites for breeding and rearing offspring—as well as unoccupied areas that the Services determine are essential for the conservation of the species. As of January 2017, the Services had collectively designated critical habitat for 846 species listed as endangered or threatened in the United States. In addition, Section 4 of the ESA requires the Services to review the status of each listed species at least once every 5 years. The purpose of the 5-year status review is to evaluate whether a listed species should be delisted, reclassified from an endangered to threatened species (downlisted) or from a threatened to endangered species (uplisted), or if its classification should not change.

In 1982, Congress amended the ESA to establish statutory deadlines for the Services to complete Section 4 actions associated with listing, delisting, critical habitat designations or revisions, and 5-year status reviews. According to the accompanying Conference Committee report, the intended purposes of the amendments were to “expedite the decisionmaking process and to ensure prompt action in determining the status of the many species which may require the protections of the Act.” Congress also amended Section 11 of the act to authorize citizens to file suits against the Services for failing to perform actions by the deadlines imposed under Section 4. Each of the specific Section 4 actions and their associated statutory deadlines are described in table 1.

For decades, FWS has faced challenges in implementing its Section 4 program, in part because of a high volume of litigation and petitions seeking to add a large number of species to the threatened and endangered species lists. For example, in 2007, FWS received two “mega-petitions,” collectively requesting the listing of 674 species in the Southwest and Mountain-Prairie regions. In 2010, another “mega-petition” was submitted requesting the listing of 404 southeast aquatic species. During fiscal years 2005 through 2015, FWS received 170 petitions to list 1,446 species. According to a 2010 FWS report to Congress, petitions to list species are an integral aspect of endangered and threatened species protection. The report further stated, however, that FWS does not have the capability to postpone action on petitions because of statutory deadlines or to balance that work with other Section 4 program actions. The report also indicated that any delay in making a petition finding could lead to litigation for which FWS has no sufficient legal defense. As a result, with limited resources and a significant petition workload with statutory deadlines, FWS has been vulnerable to and has experienced a high volume of litigation that has affected much of FWS’s Section 4 program since the early 1990s.

Beginning in fiscal year 1998, and in each year thereafter, annual appropriations acts have established statutory caps on the funds available for FWS to implement certain provisions within its Section 4 program. According to FWS officials, the initial spending cap was established to limit the amount that could be spent on listing actions so that funds would be available for other Section 4 actions, such as developing and completing recovery plans. Subsequent appropriations acts established additional spending caps specific to 90-day and 12- month petition findings, critical habitat designations, and foreign species- related listing actions. During fiscal years 2005 through 2015, overall funding for FWS’s listing and critical habitat actions averaged about $20 million per year (see fig. 3).

A Variety of Plaintiffs Filed 141 Deadline Suits Involving 1,441 Species, Mostly Against FWS

Based on our review, we found that a variety of plaintiffs filed 141 deadline suits against the Services for allegedly failing to comply with statutory deadlines for Section 4 actions involving 1,441 species during fiscal years 2005 through 2015. Approximately 86 percent of the suits (122 of 141) were filed against FWS, about 10 percent (14 of 141) were filed against NMFS, and about 4 percent (5 of 141) were filed against both Services (see app. I for a list of the 141 deadline suits). On average, about 13 deadline suits were filed each fiscal year, ranging from 5 deadline suits in fiscal year 2015 to 33 suits in fiscal year 2010 (see fig. 4).

The deadline suits filed against the Services involved allegedly missing deadlines across the range of Section 4 actions, including listing, delisting, designating or revising critical habitat, and conducting 5-year status reviews. Figure 5 provides information on the number of suits that were filed across the 11-year period based on the specific Section 4 action involved.

Additionally, the 141 deadline suits included Section 4 actions for a total of 1,441 unique species (see app. II). The majority of the suits (93 of 141) centered on an action for a single species, such as allegedly missing the deadline to issue a 90-day finding on a petition to list a specific species, but about one-third of the suits (48 of 141) involved actions for multiple species. For example, a 2009 suit filed by WildEarth Guardians alleged that FWS failed to make 90-day findings for two petitions it had submitted to list 674 Rocky Mountain and Southwestern species. Similarly, in 2005, California State Grange—a nonprofit organization promoting agriculture and rural family farm units in California—filed a suit against FWS for allegedly failing to conduct 5-year status reviews for 194 listed species located in California.

Factoring in species involved in the suits as well as the specific Section 4 actions at issue, we found that collectively, the deadline suits comprised a total of 1,673 actions. FWS was responsible for the majority of the actions (1,545 of 1,673), NMFS was responsible for 120 of the 1,673 actions, and the two agencies worked jointly on 8 actions. Table 2 provides a breakdown—by fiscal year and type of Section 4 action—of the total number of actions involved across the deadline suits filed against the Services during fiscal years 2005 through 2015. See appendix II for additional information on the number and type of actions specific to each agency.

Across the deadline suits filed during fiscal years 2005 through 2015, 44 different lead plaintiffs representing a variety of interests filed suits against the Services (see table 3). However, two environmental groups, the Center for Biological Diversity and WildEarth Guardians, collectively filed more than half of the suits (73 of 141). The Center for Biological Diversity was the most active plaintiff, filing a total of 46 deadline suits against the Services over this period for allegedly missing deadlines for completing 90-day and 12-month findings on petitions to list hundreds of species. Trade associations, representing businesses and industry such as the California Cattlemen’s Association and Florida Home Builders Association, filed suits against FWS for allegedly missing deadlines related to 90-day and 12-month findings on petitions to delist threatened and endangered species as well as allegedly missing deadlines in conducting 5-year status reviews for a number of species.

The Majority of Deadline Suits Were Resolved through Settlement Agreements, and FWS Delayed Some Section 4 Actions to Prioritize Those Covered by Settlement Agreements and Court Orders

Based on our analysis, we found that the majority of ESA Section 4 deadline suits filed in fiscal years 2005 through 2015 were resolved through negotiated settlement agreements that established schedules for the Services to complete the actions involved in the suits. Otherwise, the settlement agreements did not affect the substantive basis or procedural rule-making requirements the Services were to follow in completing the actions. Officials from both Services said they prioritized completing actions included in settlement agreements in implementing their Section 4 workloads. NMFS officials indicated that the deadline suits and their resulting settlement agreements did not have a significant effect on the implementation of the agency’s Section 4 program. In contrast, FWS has delayed completing some Section 4 actions to complete those included in settlement agreements. FWS has initiated several changes to its Section 4 program to help prioritize the order in which it addresses its backlog of hundreds of overdue actions and to help increase the efficiency of its Section 4 program, including revising information requirements for listing petitions.

The Majority of Deadline Suits Were Resolved through Negotiated Settlement Agreements Establishing Schedules for the Services to Complete Section 4 Actions

The Services resolved the majority of deadline suits filed during fiscal years 2005 through 2015 by negotiated settlement agreements, whereby the parties generally agreed on a schedule for the Services to complete the Section 4 actions at issue in the suits. Specifically, the Services resolved about 72 percent of the suits (101 of 141) through negotiated settlement agreements (see table 4). About 22 percent of the suits (31 of 141) were resolved through voluntary or unopposed dismissal, primarily because the Services had completed the actions involved in the suits and nothing further remained to be litigated. The remaining 9 deadline suits, all involving FWS, were resolved by a court order. Specifically, the courts dismissed 6 of the suits, ruling in favor of FWS. In the other 3 suits, the courts issued orders directing FWS to complete the Section 4 action at issue by an established schedule.

According to officials from DOJ and the Services, the agencies coordinate in deciding how to respond to a deadline suit, including whether or not to negotiate a settlement with the plaintiff or proceed with litigation. In reaching its decision, DOJ considers several factors, including whether there may be a legal defense to the suit—such as providing information establishing that the agency took action on the finding at issue or that the plaintiff lacked standing—and the likelihood that the government could obtain a favorable outcome. The officials said that most deadline suits are resolved through a negotiated settlement agreement because in the majority of them, it is undisputed that a statutory deadline was missed.

When negotiating the terms of a settlement agreement, DOJ officials said they consult with the Services to evaluate their workload, priorities, and available resources to propose a reasonable deadline for making the decisions agreed to under the settlement. DOJ officials said they are guided by a 1986 DOJ memorandum—referred to as the Meese Memorandum—in negotiating settlement terms. Accordingly, officials from DOJ and the Services stated that any agreement to settle a deadline suit would only include a commitment to perform a mandatory Section 4 action by an agreed-upon schedule and would not otherwise predetermine or prescribe a specific substantive outcome for the actions to be completed by the Services. Similarly, for those suits resolved by a court order, DOJ officials said they present what they believe is a reasonable timeframe for the court to consider in establishing a schedule for the Services to complete the action.

Most settlement agreements established time frames specific to the Section 4 action at issue, but in some settlement agreements, the Services also agreed to complete additional, related actions within certain time frames. For example, several settlement agreements contained provisions for the Services to complete an action by a certain date as well as a related, contingent action by the applicable Section 4 statutory deadline, such as a 12-month finding for a listing petition, if the 90-day finding concluded that the listing of a species may be warranted.

Additionally, in 2010, DOJ sought to have multiple deadline suits—filed by the Center for Biological Diversity and WildEarth Guardians against FWS that were pending in several district courts—transferred and consolidated by the Judicial Panel for Multi-District Litigation (MDL). The MDL panel consolidated 15 deadline suits in the federal district court for the District of Columbia, and in 2011, FWS reached a separate settlement agreement with each of the plaintiffs in these suits. The settlement agreements primarily established schedules for FWS to make hundreds of 90-day and 12-month findings on listing petitions. In the settlement agreement with WildEarth Guardians, FWS also agreed to make either not warranted findings or proposed and final listing determinations for the 251 species that were candidate species in 2010. Each agreement also included provisions that for any action that resulted in a proposed listing rule, the final listing determination would be made in accordance with the one-year period prescribed in the statute. In exchange for these commitments made by FWS, each of the plaintiffs agreed to limits on filing additional listing petitions and deadline suits until the terms of the agreements conclude in fiscal year 2017. According to FWS officials, consolidating these suits and entering into the two settlement agreements helped make FWS’s Section 4 workload more predictable, essentially establishing a five-year work plan that reflected the agency’s priorities for completing overdue Section 4 actions for hundreds of species.

Other than agreed-upon schedules for completing Section 4 actions, the settlement agreements and court orders did not affect the substantive basis or procedural rule-making requirements the Services were to follow in completing the actions. For example, the settlement agreements contained provisions specifying that nothing in the agreement should be interpreted to limit or modify the discretion afforded to the Services under the ESA. Similarly, the provisions also stated that the agreements did not change any of the procedures to be followed, or the substance of, any rulemaking action to be completed under the agreement, such as opportunities for public comment on proposed listing rules. These opportunities include submitting comments and additional information to be considered during the status review accompanying a 12-month finding on a listing petition, notice and public comment period on any proposed rule to list a species or designate or revise critical habitat, and notice of issuance of any final rule.

Based on our analysis, we found that as of December 2016, the Services collectively completed 1,766 Section 4 actions related to the 104 suits that were resolved by settlement agreements and court orders entered into fiscal years 2005 through 2015. Table 5 provides a breakdown of the outcomes of the decisions the Services made related to these Section 4 actions, based on whether the Services made a positive finding— determining that a listing, delisting, or critical habitat-related action was warranted—or a negative finding, meaning that the Services generally found that the action at issue was not warranted.

The Services Prioritized Completing Actions Included in Settlement Agreements and Court Orders, but FWS Delayed Other Section 4 Actions

The Services prioritized completing actions included in settlement agreements and court orders, but FWS delayed working on some Section 4 actions to complete those covered in the agreements and orders. In implementing the Services’ Section 4 programs, officials from both Services said they prioritized completing actions included in settlement agreements and court orders above other Section 4 actions. According to NMFS officials, deadline suits and their resulting settlement agreements during fiscal years 2005 through 2015 did not have a significant effect on the implementation of their Section 4 program. NMFS officials said this is largely because NMFS is responsible for fewer species than FWS, has not received as many of the ‘mega-petitions’ for listing species that FWS has, and has largely been able to manage its workload without being compelled to act in response to deadline suits. The officials added that in many instances in which a deadline suit was filed, NMFS was already working on the Section 4 action at issue and therefore making a decision by an agreed-to time frame did not significantly alter how NMFS implemented its Section 4 program workload.

In contrast to NMFS, FWS has delayed completing some Section 4 actions, including those with statutory deadlines, to complete actions included in settlement agreements and court orders, according to FWS documentation. For fiscal years 2005 through 2015, FWS officials said they have focused much of their Section 4 program on completing actions required under settlement agreements and court orders. This focus has been particularly evident since 2011, when FWS entered into the two MDL settlement agreements that established a five-year workplan for completing hundreds of listing and other Section 4 actions by the end of fiscal year 2017. To fulfill its commitments under these agreements, FWS’s efforts related to listing have required the use of substantially all of its petition and listing budgetary resources, according to FWS documents.

In focusing on completing the actions covered by the two MDL settlement agreements, FWS documents indicated that the agency was limited in its ability to undertake work on additional Section 4 actions outside of the agreements. For example, according to an FWS press release announcing positive 90-day listing petition findings for 374 southeastern aquatic species included in one of the 2011 MDL settlement agreements, FWS stated that it was unable to complete 12-month status reviews for these species until fiscal year 2017. The agency explained that this was because of existing commitments made under various settlement agreements and court orders. According to FWS documents, it has not had resources sufficient to complete its backlog of overdue actions and with anticipated resources, it has the capacity to complete a limited number of actions per year. As of September 2016, FWS’s backlog of overdue Section 4 actions included nearly 600 12-month findings on listing petitions and other listing-related actions that FWS has been unable to address while it focused on completing its litigation-related workload.

To help prioritize the order in which it addresses its backlog and to help increase the efficiency of its Section 4 program, FWS has initiated several changes to its program. For example, starting in October 2015, FWS implemented a streamlined process for publishing its 90-day and 12- month findings in the Federal Register. Instead of issuing each decision individually, as was done in the past, the streamlined process bundles all 90-day findings on a quarterly basis and 12-month findings biannually and publishes those decisions collectively in the Federal Register. FWS officials said that they anticipate this streamlined approach will result in administrative efficiencies and reduced publishing costs.

In March 2016, FWS established a Unified Listing Team with the goal of promoting a more consistent, efficient, and timely petition review process. An initial activity this team undertook included developing a National Listing Workplan for fiscal years 2017-2023. This 7-year workplan lays out a plan for addressing FWS’s backlog of listing petition findings and critical habitat decisions. According to FWS documentation, the workplan will help enable the agency to more effectively and efficiently administer its workload based on the needs of candidate and petitioned species while providing greater clarity and predictability to the public about the timing of its actions. In developing the workplan, FWS utilized its prioritization methodology that was finalized in July 2016. The prioritization methodology outlines the order of priority that FWS will give to species in making 12-month findings on listing petitions, giving highest priority to species considered to be critically imperiled. FWS officials said the agency’s ability to implement its workplan as scheduled is subject to change based on future funding and litigation, which may require FWS to reprioritize its workload.

In addition, in September 2016, the Services jointly issued a final rule revising regulations that outline the process and information required for listing petitions. The Services stated that the purposes for the revisions were “to improve the content and specificity of petitions to enhance the efficiency and effectiveness of the petition process to support species conservation.” Among other revisions, petitions will be limited to one species per petition, and petitioners will be required to provide a “complete, balanced representation of the relevant facts” with respect to the Services’ initial 90-day finding. According to officials from the Services, improving the quality of information submitted in support of listing petitions will help enable the Services to more efficiently process the petitions and issue decisions in a timelier manner.

Agency Comments

We provided a draft of this report for review and comment to the Department of Commerce, the Department of the Interior, and the Department of Justice. The Departments of Commerce, the Interior, and Justice each provided technical comments, which we incorporated as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Attorney General, the Secretary of Commerce, the Secretary of the Interior, and other interested parties. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or fennella@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff members who made key contributions to this report are listed in appendix III.

Appendix I: List of Endangered Species Act Section 4 Deadline Suits, Fiscal Years 2005- 2015

Section 4 deadline suits include citizen suits filed against the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to compel compliance with statutory deadlines for certain actions under Section 4 of the Endangered Species Act (ESA). Section 4 of the act includes statutory deadlines for the Services to complete certain mandatory actions, including making findings on petitions to list or delist species, designating or revising critical habitat, and conducting 5-year status reviews of listed species. Table 6 provides information on each of the deadline suits filed against the Services during fiscal years 2005 through 2015, including the date the suit was filed, the district court in which it was filed, a summary of the Section 4 action at issue, and the disposition of the suit.

Appendix II: Additional Information on Endangered Species Act Section 4 Deadline Suits, Fiscal Years 2005-2015

Section 4 deadline suits include citizen suits filed against the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), to compel compliance with statutory deadlines for certain actions under Section 4 of the Endangered Species Act. Section 4 of the act includes statutory deadlines for the Services to complete certain mandatory actions, including making findings on petitions to list or delist species, designating or revising critical habitat, and conducting 5-year status reviews of listed species. Table 7 provides information on the taxonomic groups of species involved in the Section 4 deadline suits filed during fiscal years 2005 through 2015. Table 8 provides information on the distribution of the species managed by FWS and NMFS as well as distribution by each of the agency’s respective regions. Table 9 provides information on the number of actions involved in the Section 4 deadline suits by agency.

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Alyssa M. Hundrup (Assistant Director), Carolyn Blocker, Ellen Fried, Cindy Gilbert, Richard Johnson, Michael Meleady, Sara Sullivan, and Manuel Valverde made key contributions to this report.