The New York Times
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Moratorium Asked on Suits That Seek to Protect Species

By DOUGLAS JEHL
April 12, 2001

The Bush administration has asked Congress to set aside, at least for a year, a provision of the Endangered Species Act that has been the main tool used by citizens' groups to win protection for plants and animals.

The request, spelled out in a section of the budget document that President Bush sent to Capitol Hill on Monday, would make it much more difficult for citizens to use the courts to force the Fish and Wildlife Service to act on petitions to list a species as endangered.

Officials at the Interior Department defended the request today as necessary to let an overburdened agency regain control of a mission that they said has increasingly been driven by the courts, with dozens of cases involving more than 400 species now on the dockets.

If Congress approves the plan, the Fish and Wildlife Service would devote its available money next year to listing the endangered-species cases it deemed to be top priorities, while being specifically barred from spending any money to carry out new court orders or settlements involving other plants or animals.

"We want a chance to establish our own priorities, instead of just waiting for another court order to roll across the transom," said Stephanie Hanna, an Interior department spokeswoman. Ms. Hanna said the department would decide next year whether to extend the request beyond the 2002 fiscal year.

The leaders of environmental groups, along with some Congressional Democrats, denounced the plan as one that would take power away from citizens and put it in the hands of an agency that they said had been reluctant to make the hard decisions involved in designating endangered species.

"If you didn't have the citizens' suits, you'd basically have the power brokers determining if you were going to save the salmon or the spotted owl, and that just doesn't make sense," Representative George Miller, Democrat of California, said today.

Democrats opposing the move invoked the threat of a filibuster to kill it. Senator John Kerry, Democrat of Massachusetts, said that "any and all" tactics would be considered to defeat the proposal.

The administration proposal reflects a longstanding battle over how far the government should go in determining what species are deserving of protection, with business and other property owners critical of the reach of the 1973 law.

Under the administration plan, citizens could still petition the wildlife service with endangered-species requests, and to file suit in attempts to force action. But for next year, at least, the service would not be bound by deadlines requiring a prompt response, a change that would end the leverage citizens use to seek help from the courts.

The service would honor any court orders or settlements on endangered species in effect at the time the law was passed, a commitment that interior department officials said would consume the majority of this year's $8.7 million budget for the listings.

But the prohibition on spending related to new court orders or settlement would be absolute, department officials said, leaving the balance of the funds to support the agency's own listings efforts.

Of more than 1,200 species that the wildlife service has listed as threatened, the vast majority — including the northern spotted owl and the Atlantic salmon — owe that status to legal pressure brought on the agency by outside groups.

At the same time, though, a proliferation of lawsuits in recent years has left decisions on 250 candidate species or their critical habitats still awaiting agency review.

Despite that backlog, a memorandum circulated within the agency in November said resources had become so strapped that its own listings efforts were being suspended to provide officials the time and money to address the legal challenges.

Interior department officials today cited that Clinton administration warning in describing what they hoped to avoid during the new administration; their views were echoed by Congressional Republicans.

"Under the existing scenario, anybody can sue, and the limited resources of the department were spent defending the case," said Representative George P. Radanovich, a California Republican who heads a caucus of conservative Western lawmakers. "At the same time, a lot of people have been using the endangered species act not for the protection of endangered species, but for the advancement of a no-growth agenda."

In addition to 75 active lawsuits involving endangered species, the service is preparing to defend 86 more cases in which it has received notices of intent to sue. Projects the agency planned for this year included final designations of critical habitat for 180 endangered species, with preliminary decisions on 240 more, but those were in danger of being swamped by the legal challenges.

Lawyers with experience in endangered-species cases said that if Congress grants the protection the administration seeks, it could not easily be overridden, even by a judge.

In a recent ruling in the case of Environmental Defense Center v. Babbitt, they noted, the United States Court of Appeals for the Ninth Circuit in San Francisco ruled in the government's favor to uphold a spending moratorium against other obligations related to endangered species.

For that reason, leaders of environmental groups that have successfully used the law were particularly vocal today in denouncing the administration proposal.

At Defenders of Wildlife, officials said the determination by the wildlife service came only after the group filed three challenges in court.

"One of the reasons that the Endangered Species Act works is that Congress gave citizens a right to petition and to sue," said Rodger Schlickeisen, the group's president. "Congress set those statutory deadlines on purpose because they knew that agencies would have a hard time acting on their own in an atmosphere of political controversy."

The administration's effort to seek changes in the endangered-species process comes as some Congressional Democrats have joined Republicans in saying that the act itself may need an overhaul.

In the House, Representative James V. Hansen, the Utah Republican who is chairman of the House Resources Committee, set up a bipartisan Endangered Species Act Working Group today to draft proposed changes to the law, which has been been due for reauthorization since 1991.