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Science-Based Group Sues Fish & Wildlife Service for Failing to Make Decision on Uplisting the Declining Delta Smelt Population

October 15, 2009

FRESNO, Calif., Oct. 15 /PRNewswire/ — Warning that the federal government is mismanaging the delta smelt into extinction, the Council for Endangered Species Act Reliability (CESAR), a nonprofit public interest group, filed suit today to compel the United State Fish and Wildlife Service (USFWS) to declare these tiny, embattled fish an endangered species with all of the protections that federal law provides. At present, delta smelt are only listed as a threatened species.

“There is no question that the smelt are in desperate need of help,” said Craig Manson, Executive Director of CESAR, who has studied the problem. “But for more than two years, USFWS has been sitting on a petition that would extend to the smelt the full range of protections that good science shows they need.”

USFWS’s failure to act on the petition is itself a violation of the Endangered Species Act (ESA). The Center for Biological Diversity, Bay Institute, and Natural Resources Defense Council jointly petitioned to have the smelt declared an endangered species on March 8, 2006. ESA requires the government to respond within 90 days, but instead, the government delayed taking any action until July 10, 2008, when it agreed that an endangered species listing “may be warranted” for the smelt.

CESAR supported that initial determination in filings with USFWS and has continued to press for listing the smelt as endangered. But the government has again ignored a second deadline that the law spells out for making a final determination on the smelt listing.

As a result, the fate of the smelt is “languishing in administrative purgatory all while the delta smelt continues its precipitous decline,” according to the suit CESAR has filed with the U.S. District Court for the Eastern District of California. CESAR is represented in the lawsuit by Gibson, Dunn & Crutcher, LLP. The Brenda Davis Law Group is serving as a legal advisor to CESAR on this matter.

Without the additional protections made available by listing the delta smelt as “endangered,” CESAR contends that the species is more likely to continue its decline since the evaluations and actions being performed by USFWS are inadequate to ensure its survival.

“For the last fifteen years, the government has been managing the species into extinction,” said Manson. “CESAR has provided more than 50 pages of comments noting that the smelt have continued to decline due to a wide range of factors that USFWS has so far failed to assess or to control. That failure is attributable in part to the less stringent consultation requirements for species that are listed as threatened rather than endangered.”

Federal regulations on behalf of the smelt currently focus on restricting the amount of California’s water supply that can be pumped through the Delta. Listing the species as endangered would require USFWS to examine the effects of industrial pollution, ammonia discharges, food supply, non-native species, rising salinity and other factors that numerous scientific studies have shown are affecting the survival of the smelt.

“Limiting the pumping of water doesn’t work and the federal agencies’ refusal to acknowledge this has been devastating for California and has provided no benefit for the fish. It’s time for the government to stop delaying the listing decision and face up to its responsibilities under the Endangered Species Act,” said Manson.

CESAR is a nonprofit, public interest organization whose mission is to ensure the efficient and effective enforcement of the Endangered Species Act and provide educational information on the Endangered Species Act and its application. To learn more about CESAR please visit http://bestscience.org/.

Copy of the complaint available upon request.

Timeline of USFWS Actions on Delta Smelt Listing

  • June 26, 1990 - Original petition to list the delta smelt as an endangered species.
  • March 5, 1993 - USFWS lists the smelt as threatened instead of an endangered species.
  • March 8, 2006 – Joint petition to raise the smelt listing to endangered. ESA requires USFWS to respond in 90 days.
  • March 10, 2007 - Deadline passes for USFWS to determine whether or not to list delta smelt as endangered. No action taken.
  • July 10, 2008 – USFWS makes its “90 day” finding that endangered listing “may be warranted.” ESA required USFWS to make final determination within 12 months of receiving petition.

SOURCE Council for Endangered Species Act Reliability


Source: newswire



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