On September 4, 2018, the Center for Biological Diversity filed a lawsuit under the federal Freedom of Information Act against the U.S. Fish and Wildlife Service (Service). The lawsuit alleges that the Service has used irresponsible scientific methods while conducting its review of the endangered status for the American burying beetle (Nicrophorus americanus) pursuant to the Endangered Species Act (ESA). The lawsuit was triggered, in part, by a letter to the Service authored by one of the scientists who initially participated in the Service’s risk assessment for the beetle which raised concerns about the methods being used by the Service.
The Service initiated a status review of the species, which was listed as endangered in 1989 and occupies habitat in four states, in 2016. The Service has since been under pressure to make a decision regarding whether or not to remove the beetle from the List of Endangered and Threatened Species. A risk assessment for the beetle is part of the Service’s attempt to address a still-outstanding 12-month finding.
At least one scientist who previously worked on the risk assessment alleges that the Service engaged in questionable methods, was opaque or even facetious about the data underlying its conclusions, and imposed unreasonable timelines. In a letter to the Service, he alleges repeatedly requesting documents, and that these requests were repeatedly denied. Following publication of his letter, the Center for Biological Diversity filed a Freedom of Information Act request with the Service seeking information about the Service’s evaluation of the beetle’s status. The Center for Biological Diversity’s lawsuit alleges that the Service failed to release detailed records related to the request, including a number of records in the Service’s possession, which the Center for Biological Diversity separately obtained from third parties. If the lawsuit succeeds, it could force the Service to turn over a number of documents related to its review of the burying beetle’s status which, to date, have not been made public. It should be noted, however, that the status review of the species is incomplete, and both a 12-month finding and a five-year status review are pending. As such, allegations by the Center for Biological Diversity that the methods employed by the Service in conducting the status review are flawed may be prejudging the outcome, since the process is not yet completed.
Stephanie Clark is a member of Nossaman’s Environment & Land Use Group. She advises clients on a variety of land use and environmental matters, including matters dealing with the California Environmental Quality Act, Endangered ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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