Endangered Species Part II: Listing an Endangered Species
In the last article, we discussed the Endangered Species Act (ESA) as it applies to land use and the marbled murrelet. For this post, we are going to delve a little deeper into a specific ESA concept: listing an endangered species.
How does a species get listed on the endangered species list? There are two ways to initiate the addition of a species to the endangered species list, 1; The Department of Fish and Wildlife receives a petition from a person or organization for a species to be listed as threatened or endangered, to reclassify a species, or delist a species and 2; The Department voluntarily chooses to examine the status of a species by initiating a status review of a species.
If the petition to list the species is from the public, there is a preliminary 90-day review “to the maximum extent practicable” (Endangered Species Act). This means the Department reviews all the information provided to it. If it finds that there is enough relevant scientific data to support the contention of listing, the positive finding gets published in the federal register (think of the federal register as a daily gazette for Presidential documents and new or amended federal regulations) - opening it up to a public comment period. Once a positive finding is made, the species is now considered a “candidate” for listing under the ESA.
After becoming a candidate species, there is an in-depth review of the species status; this review involves collecting and analyzing the best available scientific and commercial information on the species, including its biology, ecology, abundance and population trends, and threats to the species, in order to evaluate the species’ extinction risk. Within one year of the petition to Fish and Wildlife to list the species, they will publish a proposed rule in the federal register for listing that species as threatened/endangered. This proposed rule is now open for public comment and public hearings may be held. After the department reviews all of the comments and any new data, they make their final rule. This entire process is mandated in the ESA and will take at least 2 years to complete.
If the Department of Fish and Wildlife voluntarily chooses to review a species status, it is not bound by the statutory deadlines, and the process can be much faster and less cumbersome. However, if the Department does not use the relevant scientific data, their decision can be brought to court as arbitrary and capricious.
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