by Susan Combs
Texans scored a significant victory this week when the U.S. District Court in Washington D.C. soundly rejected claims by plaintiffs asserting that the dunes sagebrush lizard should have been listed as an endangered species over two years ago.
The Texas Conservation Plan for the dunes sagebrush lizard, prepared and administered by the Texas comptroller’s office, was approved in 2012 after nearly a year of development and negotiation. The U.S. Fish and Wildlife Service carefully considered the plan, its enrollment, and research and decided not to list the lizard in June of 2012. A year later, environmental groups filed a lawsuit attempting to force Fish and Wildlife to reconsider not listing the species. We immediately intervened to protect the interests of the state of Texas. What was clear in the judge’s opinion was that sound science, protecting the economy and species and protecting landowner confidentiality are mutually compatible.
Contrary to the environmental groups’ claims, according to the judge, the state agency did in fact rely upon the best available science in its assessment of the various conservation efforts, including the conservation plan. In doing so, the judge noted, “FWS reviewed input from experts, state governments and other government agencies, and considered extensive scientific studies of the dunes sagebrush lizard and its habitat.”
In addition, the judge pointed out that the environmental groups “proffer no scientifically superior data from the administrative record that FWS failed to consider…” Further, the judge explained that the Fish and Wildlife Service “thoroughly examined a wide range of conservation efforts” and that the agency’s conclusion that the threat of habitat loss was sufficiently ameliorated by three primary conservation mechanisms, including the conservation plan, was reasonable.
The Texas Conservation Plan was developed with a wide range of stakeholders and established an innovative and science-based plan with voluntary participation to ensure species conservation. This plan, in addition to initial research conducted, was a key determinant in the Fish and Wildlife Service’s decision not to list the reptile. The lizard lives in the Permian Basin, a vital economic area to the state and country, and a listing as endangered would have severely hampered the economy.
What is particularly significant about the decision is that it rebuts the arguments by the Center for Biological Diversity and Defenders of Wildlife that this approach was deeply flawed and could not be monitored or enforced by the state agency. The environmentalists complained that the “Service did not – and could not – review the Certificates of Inclusion detailing conservation measures adopted by each participant, which are confidential under Texas law” and thus, they argued any reliance on the plan in making its decision was arbitrary and capricious. My office intervened in the lawsuit and was able to make the arguments that this was not the case, and Fish and Wildlife can and did monitor and enforce the permit.
The judge fully agreed, explaining that “FWS can monitor losses within each quality level, thereby protecting the most critical areas.” He further explained that the state agency reasonably concluded that, even if it could not review each individual Certificate of Inclusion, it would have access to sufficient aggregate data “to ensure that all of the conservation measures are implemented as planned, and are effective at removing threats to the lizard and its habitat.” Therefore, the confidential nature of the Certificates of Inclusion did not render the federal agency’s reliance on the conservation plan arbitrary and capricious.
The proof, as they say, is in the pudding. The ongoing implementation of the conservation plan to protect the lizard has proven a big success. We’re providing aggregated data to the Fish and Wildlife Service on a regular basis, including data on disturbances, conservation efforts, the number of credits and awards purchased, and research efforts, all in an effort to enhance recovery and conservation of the species in a transparent manner. As of August, over two years into the plan, only about 30 acres of the dunes sagebrush lizard habitat, less than 1.5 percent of that allowed under the plan, has been disturbed. Several verification tools, such as independent third-party audits and satellite imagery to detect changes in the dunes sagebrush lizard habitat, help ensure the plan is achieving its intended result.
The overall success of the plan is a credit to all the participants who voluntarily enrolled and who continue to conduct conservation measures to benefit the species. This just goes to show that a wide range of stakeholders can work together to establish and implement a science-based plan that keeps the economy moving, while also providing conservation benefits to the lizard. These goals become inclusive and represent a shared vision for conservation. This is how the federal Endangered Species Act should work.