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Legislative Update: Endangered Species Act
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Three new bills have been introduced to amend the Endangered Species Act (ESA) that pertain to transparency and citizen suits.

Under current law, when a species is proposed for listing under the Endangered Species Act, the Department of Interior publishes the listing proposal in the Federal Register and allows for public comment for a 60 day comment period. To promote awareness of a proposal, the U.S. Fish and Wildlife Service then issues news releases, conducts special mailings, and informs the scientific community and other Federal and State agencies. In addition, the government publishes a summary of any proposal as a legal notice in newspapers serving each area in which the species is believed to dwell and holds public hearings in cases of high public interest or if an interested party requests one within 45 days of the proposal.

While these measures promote transparency before the government makes a decision concerning the listing of a species, the same cannot be said for after a decision is made, as the government is not currently required to provide the scientific evidence that led to the listing of the species. S. 376 and its House companion, H.R. 1273, sponsored by Sen. John Cornyn (R-TX) and Rep. Dan Newhouse (R-WA) respectively, seek to remedy this discrepancy by requiring the Department of the Interior or the Department of Commerce, as appropriate, to make publicly available on the internet the best scientific and commercial data available that are the basis for the determination of whether a species is an endangered species or a threatened species, including each proposed regulation for the listing of a species.

In a similar vein, S. 735, sponsored by Sen. Michael Enzi (R-WY), would require the federal government to disclose their reasoning behind listing species to state governments in order to give them the opportunity to verify, dispute, or complement the information.

Under current law, in order to bring a suit against the federal government for violation of the Endangered Species Act, citizens must be adversely affected by the violation and normally must give 60-day’s notice of the alleged violation to the alleged violator and the Secretary of the Interior. This notice and delay period are intended to allow the violator an opportunity to correct his violation and to give the Secretary an opportunity to enforce compliance, thus making citizen enforcement unnecessary.

S. 375, sponsored by Sen. John Cornyn (R-TX), would require that the Department of Interior publish the complaint in a citizen suit within 30 days of being served and that affected parties be given a reasonable opportunity to intervene in the suit. If the affected parties intervene, the court would then be required to refer the action to a mediation program or magistrate judge to facilitate settlement discussions. Such a change would enable citizens affected by the violation to more easily join together in a suit and would require their grievances to be heard in a judicial setting.

Lastly, on March 28, 2017, U.S. Secretary of the Interior Ryan Zinke endorsed changes to implementation of the Endangered Species Act while speaking to the Public Lands Council. Sec. Zinke indicated that he would shift the policy on protecting the Sage Grouse to focus on the population of the bird, rather than the amount of habitat that is available. He also stated that he would allow states to develop their own plans for meeting that population goal.





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