The Bush administration has launched a multi-year public relations assault against the designation and protection of critical habitat. Even though 85% of all endangered species are threatened by habitat loss, the administration has aggressively argued not only that critical habitat designation is useless to endangered species, but also that it can actually hurt them. Its hatchet man on ESA issues, Assistant Secretary of Interior Craig Manson, has ordered the U.S. Fish and Wildlife Service to reprint a canned "disclaimer" attacking critical habitat in all press releases and decisions. Remarkably absent from the disclaimer is any evidence to support the agency’s bizarre theory that habitat protection does not help species. When pressed through the Freedom of Information Act, Manson’s office admitted that it possessed no evidence.

The crux of the administration’s "argument" is no less bizarre: since we follow a policy of not protecting critical habitat, it argues, critical habitat must not offer protection to species. In August 2004, however, two courts struck a death blow to the policy. Considering the administration’s refusal to protect millions of acres of critical habitat for the desert tortoise in southern California and the northern spotted owl in California, Oregon, and Washington, the courts struck down the policy and ordered the administration to issue new decisions requiring that critical habitat be managed to recover endangered species, not just stave off their extinction. Four federal courts have issued similar decisions since 2001, but the administration ignored them and continued to implement the policy. That strategy has now been solidly rejected by the courts.

The desert tortoise case was argued for the Center for Biological Diversity and the Sierra Club by Brendan Cummings of the Center and Mike Lozeau of Earthjustice (Stanford). The northern spotted owl case was argued for Gifford Pinchot Task Force and others by Stephanie Parent of the Pacific Environmental Advocacy Center (Portland).

On 9-8-04 the Center for Biological Diversity reached a settlement agreement with the U.S. Fish and Wildlife Service to designate critical habitat for the Rota bridled white-eye by September 7, 2006. The white-eye is a striking forest bird that occurs only on the island of Rota in the Commonwealth of the Northern Mariana Islands in the western Pacific. Its decline due to habitat loss and exotic species has long been documented by scientists. Environmentalists petitioned the Wildlife Service to place the white-eye on the endangered list in 1980 when more than 11,000 birds still remained--enough to launch an effective, low cost recovery program. But as so often happens, the agency refused to process the petition and instead placed the white-eye on its candidate list, which provides no protection. The species languished on the candidate list for more than 20 years until the Center sued to end the deadly delay. When the species was finally protected in January 2004, fewer than 1,100 birds remained. With this low number, it will be difficult and expensive to recover the white-eye.

But although the agency admitted that habitat loss is the primary cause of the white-eye’s imperilment, it refused to designate and protect critical habitat for the species. Thus we were forced to file another lawsuit. Critical habitat is an effective means of ensuring that imperiled species recover: data submitted to Congress in multiple reports by the U.S. Fish and Wildlife Service show that species with critical habitat are twice as like to be improving as species without it.

Both the listing and critical habitat suits were argued by David Henkin of Earthjustice (Honolulu).

On 9-1-04, the Center for Biological Diversity filed suit against the U.S. Fish and Wildlife Service for repeatedly delaying protection for Agave eggersiana and Solanum conocarpum. Both plants are endemic to the U.S. Virgin Islands and are threatened by residential and tourist development and feral animals. The Agave lives only on the island of St. Croix, where only a handful of plants remain. The Solanum is limited to the island of St. John, where there are approximately 190 plants living in the wild.

The government of the Virgin Islands petitioned to list both species in 1996, but the U.S. Fish and Wildlife Service, as is so often the case, refused to process the petitions to completion. Told of the suit, a biologist at the U.S. Virgin Islands National Park said "I can't believe it’s been that long. They’re quite endangered because they aren’t found anywhere else." The Park Service also asked the Fish and Wildlife Service to protect the species in 1996. A Wildlife spokesperson admitted that species are seldom added to the endangered list without a lawsuit paving the way.

The suit is being argued by Robin Cooley of the Center for Biological Diversity/Denver University Law Clinic and Larry Sanders of the Turner Environmental Law Clinic at Emory University School of Law.

Center for Biological Diversity | PO Box 710 Tucson, AZ 85702 | 520-623-5252 | [email protected]

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