The Endangered Species Act - Endangered Species Act Litigation

In a 2004 speech to the American Farm Bureau Federation, Gale Norton, Secretary of the Department of the Interior, described the Endangered Species Act as follows: "it is a powerful law designed for confrontation." Many confrontations over the law have taken place in the courts. The ESA includes provisions for civil lawsuits against government agencies alleged to be in violation of the ESA. Citizens can also sue if they believe the U.S. Fish and Wildlife Service has failed to perform actions required under the ESA or to compel the FWS to apply ESA prohibitions regarding "taking." Only two lawsuits were filed against the agency regarding the ESA between 1974 and 1991. Over the next decade more than three dozen suits were filed.

In Endangered Species Act: Successes and Challengesin Agency Collaboration and the Use of Scientific Information in the Decision Making Process (May 19, 2005), the Government Accountability Office (GAO) noted that the FWS had become "overburdened by litigation." Many of the lawsuits were filed by conservationist and animal groups regarding the listing process and designation of critical habitat. In 1992 a coalition of groups sued the Department of Interior charging that the listing process was proceeding too slowly. At that time more than 500 species were awaiting listing. The suit was settled out of court later that year when the FWS agreed to specific time limits for listings of the species at issue.

Designation of critical habitat has also been a contentious issue. In 1997 the Natural Resources Defense Council sued the Department of the Interior (DOI) over the long-standing policy of the U.S. Fish and Wildlife Service to avoid designating critical habitat under the "when prudent" clause. At that time the agency had set critical habitat for only approximately 10% of all listed species. The FWS lost the lawsuit, as well as many subsequent suits in the same vein. In 2000 the agency put a one-year hold on all work related to listing new species so that court-ordered critical habitat work could be tackled.

In 2004 the Fish and Wildlife Service lost a case that focused on the agency's decision to ignore petitions submitted for species that are candidate species. The lawsuit specifically dealt with the Gunnison sage grouse, a large ground-dwelling bird found only in parts of Colorado and Utah. In January 2000 a coalition of conservationist groups submitted a petition to the FWS on behalf of the species. The FWS responded that no action was needed on its part, because it planned to designate the species as a candidate species. This decision was in keeping with the agency's long-standing "Petition Management Guidance." In September 2000 the petitioning groups sued the agency claiming that the Guidance violated the intent of the ESA. In 2004 the U.S. District Court for the District of Columbia ruled against the FWS and ordered the agency to respond to petitions that had been submitted for more than 200 candidate species.

Since the 1990s the Fish and Wildlife Service has repeatedly complained that many of its decisions and activities are driven by court orders, rather than scientific priorities. Conservation and animal groups have taken advantage of ESA provisions that allow citizen involvement in petition submittals and lawsuits. Critics claim that the groups flood the FWS with petitions so that lawsuits can be brought when the agency is unable to respond in a timely manner. Environmentalists counter that the lawsuits are necessary, because the FWS fails to do the job assigned to the agency under the Endangered Species Act to protect imperiled species.