Oklahoma Sues Fish & Wildlife Service, Kansas Joins
On March 17, 2014, Oklahoma’s Attorney General, Scott Pruitt, filed suit in Tulsa against the U.S. Interior Department and U.S. Fish & Wildlife Service (FWS). The lawsuit is an important escalation in the fight of states and industry members against federal consent decrees and settlements of Endangered Species Act cases with non-governmental environmental organizations. The environmental organizations involved, Wild Earth Guardians and the Center for Biological Diversity, have been accused by various industry members of engaging in a “Sue and Settle” strategy detailed in a May 2013 report by the U.S. Chamber of Commerce (https://www.uschamber.com/sites/default/files/documents/files/SUEANDSETTLEREPORT-Final.pdf). The lawsuits brought by environmental organizations have been used to prevent and delay project development activities, with the largest settlement resulting in FWS agreeing to examine 455 different species over five years. The key point to the settlements is the agreement by FWS to remove its statutory authority to designate a species as a “candidate species” – meaning that evidence supports a threatened or endangered listing, but resources are unavailable or other candidate species are determined to be a higher priority for listing.
The lawsuit by Oklahoma makes three major claims:
(1) The settlements eliminate FWS’s discretion to keep species on the “candidate list”;
(2) The settlements inappropriately shorten the listing process to meet an arbitrary schedule, without regard for whether the best science is available to make a decision; and
(3) The settlements limit the FWS’s ability to examine the efforts that States have made or supported to conserve certain species and their habitats.
This is the first time that a state has brought such a suit, although similar suits by industry groups have failed. Most recently, on March 31, 2014, the United States District Court for the District of Columbia dismissed a challenge to the settlements by the National Home Builders Association and others. In response to the listing of the lesser prairie chicken as threatened, Kansas has joined Oklahoma in its suit against FWS and other states are expected to decide soon whether to join.