The ESA only allows three options in response to a proposed listing. One of the three actions must be taken within one year of the proposed listing date—which would have been December 14, 2011:
(1) Finalize the proposed listing;
(2) Withdraw the proposed listing; or
(3) Extend the final determination by not more than 6 months, if there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination, for the purposes of soliciting additional data.
The citizens who would be directly impacted if the lizard is listed have written comments and made phone calls, stepped out of their comfort zones to speak up at hearings, and waved signs at rallies—all in hopes of saving their communities’ economy. Though history told them it was unlikely, the desired outcome was option #2, the withdrawal of the proposed listing.
On December 1, they didn’t get an early Christmas present, but they did get a gift: option #3, as there is “substantial disagreement” about the “science” in the actual proposed listing. This gift buys time to draw more attention to the issue—and it puts the lizard and the listings’ job killing potential smack dab in the middle of the campaign season in a swing state.
With the history of ESA listings, such as the spotted owl and delta smelt, that ultimately destroyed jobs, communities, and industries, the people of Southeastern New Mexico and West Texas were unwilling to simply let the listing proceed. In a scientific roundtable held August 15, 2011, and organized by New Mexico State Representative Dennis Kintigh, a panel of scientists from a variety of disciplines carefully reviewed the science behind the listing and found numerous contradictions and inconsistencies (which should have been found by the FWS) chronicled in the resulting report. Their work is referenced in the FWS release: “The Service has received new survey information for the lizard in New Mexico and Texas and an unsolicited peer-reviewed study on our proposed rule.”
In justifying their decision, the FWS said “Public comments received since the publication of the proposed rule have expressed concerns regarding the sufficiency and accuracy of the data related to the dune sagebrush lizard’s status and trends in New Mexico and Texas. Therefore, in consideration of the disagreements surrounding the lizard’s status, the Service is extending the final determination for 6 months in order to solicit scientific information that will help to clarify these issues.”
Perhaps the scrutiny the proposed listing has received made the FWS realize that the listing would not hold up under the inevitable court battle that would come with a finalization of the proposed listing and that they’d end up looking foolish.
The FWS has reopened the public comment period for an additional 45 days—from December 5-January 18. Concerned citizens who have not previously commented, those with survey information, and/or population estimates are invited to submit the information. All of the accumulated data will become the official record that will be part of a likely legal appeal.
On November 22, a letter, signed by 18 Congressmen from both parties, was sent to Secretary of the Interior Ken Salazar asking him to direct the FWS not to list the dunes sagebrush lizard—or at least delay the decision because “considerable new scientific research has been collected about this species since the initial listing proposal supporting the view that the lizard is not, in fact, endangered.”
New Mexico’s two Democratic Senators, Tom Udall and Jeff Bingaman, sent a similar letter to the FWS Director, Daniel Ashe, on November 10. They asked him to exercise his authority to delay the decision “if there is a dispute between the scientific data relating to the merits of a listing.”
Without the Congressmen’s action, the public involvement, and the scientists donating their time to go over the science with a fine toothed comb, this listing would have likely sailed through as many before it have done. The Center for Biological Diversity (CBD), the organization that first petitioned for the lizard’s listing in 2002, blames “mounting pressure” for the delay.
While the CBD accuses Congressman Steve Pearce of grossly overblowing the claims that the lizard’s protections will “decimate jobs,” their own press release regarding the FWS delay announcement states: “The lizard declines or disappears in the face of oil and gas development or herbicide spraying, both of which are rampant in the species’ habitat.” Clearly their intent in petitioning for the lizards’ protection involves stopping or blocking oil and gas development—which is the economic driver of the region. They call talk of lost jobs “hysterics.”
If the people of the Permian Basin (Southeastern New Mexico and West Texas) lose their jobs and their communities crumble because of the listing, is that hysterics? They don’t think so.
If the lizard is not listed, we know the outcome: people have jobs, certainty is restored to communities inviting investment and growth. If the lizard is listed, we do not know the outcome—uncertainty prevails. Maybe it will not be as bad as Congressman Peace claims, but any jobs lost; any growth curtailed is not a good thing—especially when it is rushed through and based on bad science; especially when, for example, the spotted owl has continued to decline despite it ESA protection.
So, we have a small gift in this “delay” decision. But the battle continues. Not just over the dunes sagebrush lizard, but over the “spring-run” Upper Klamath Chinook salmon in Oregon, and the Santa Ana Sucker in Southern California. There are hundreds of critters, most you’ve never heard of, groups like CBD are petitioning FWS for protection. They can be listed without any consideration regarding the economic impact it may have on the people of the region or America. Good people will have to keep showing up, standing up, and speaking up to fight this misuse of the ESA—unless the ESA is repealed or amended.
The battle continues. Hopefully, the troops are emboldened by this small victory. America is in a war—an economic war. We need a government that is fighting for us, not against us. In a tough election year, can President Obama afford to tick off the people in a swing state by once again appeasing the environmentalists instead of encouraging jobs? Remember, public pressure works.
