December 28, 2016—GEORGETOWN, TX – The United States District Court for the Western District of Texas issued an order late last week granting the motion of the U.S. Fish and Wildlife Service to take remand of its decision to reject the petition to delist the Bone Cave Harvestman (Texella reyesi), an arachnid species found in two different Texas counties. In light of the USFWS’s (“the Service”) failure to consider the petition together with supporting documentation provided by American Stewards of Liberty (ASL) and the other petitioners, the order requires the Service to undertake a new review of the petition to delist the Bone Cave Harvestman and issue a new decision by March 31, 2017.
The Bone Cave Harvestman is a cave-dwelling invertebrate, native to Texas, which was listed by the Service as endangered in 1988. Whereas, at the time the Service listed the species, the agency presumed that full range of the species was limited to five or six caves, there are now at least 172 known caves occupied by the Bone Cave Harvestman distributed across the range of the species. This represents approximately a 3,000 percent increase in the number of known occupied caves since the time of the initial listing.
In June 2014, ASL and others filed a petition to delist the Bone Cave Harvestman with the Service, along with a list of 63 documents that support the petition, and a digital copy of the documents themselves. In June 2015, the Service summarily rejected the petition. Inexplicably, the Service failed to consider the documents in support of the petition when making its decision. In papers filed with the Court, the Service characterized its failure to consider the documents as an “admitted mistake” and a “clerical error.” The petition and digital copies of the supporting documentation were sent to both the Service’s headquarters in Arlington, Virginia, and the relevant Regional Office in Albuquerque, New Mexico, and at least seven Service employees received an e-mail from petitioners that attached the petition and made reference to the fact that the digital copies of the supporting documents were submitted.
Margaret Byfield, Executive Director of ASL, stated “While we are pleased that the Service is going back to the drawing board, the suggestion that it was a clerical error that resulted in more than a half dozen Service employees disregarding pertinent materials submitted in support of the delisting petition does not pass the straight face test.”
Lead counsel on the case, Paul S. Weiland of Nossaman LLP, observed that “The Bone Cave Harvestman is one of many species listed in error by the U.S. Fish and Wildlife Service based not on the fact that the species is at actual risk of extinction but due to a paucity of surveys chronicling the species’ habitat, which is far more broadly distributed and common than the initial listing decision suggests. We are confident the facts will prevail in this case.”
Shortly after the delisting petition was filed, the Service issued a five-year status review of the Harvestman, a process designed to help inform the current status of the species. This step would have been unnecessary had they earlier considered the supporting materials submitted with the petition. “The timing of the review is suspect,” remarked Byfield. “Since a status review is not subject to court challenge, but a delisting petition can be reviewed, it appears that the Service was trying to protect the listing regardless of the overwhelming data and current scientific evidence that the Harvestman no longer warrants protection, and they were caught doing so.”
This information would not have come to light but for the fact that American Stewards of Liberty pursued a legal challenge to the Service’s decision. Even while the Service admitted its employees—who are hired to serve the public good—erred by failing to consider the documentation supporting the petition, in court, the Service sought to justify its conduct by stating that “Government agencies are extremely busy and sometimes details … may be inadvertently overlooked.”
The listing of the Bone Cave Harvestmen and imposition of costly permitting requirements have cost government agencies, corporations, and private citizens tens of millions of dollars over nearly thirty years.
Said Byfield, “Bureaucrats in Washington may view delay in delisting the species due to agency incompetence as justifiable in light of their workloads, but these federal government employees appear blind to the real world impact of their behavior and inaction.”
As Weiland, the lead counsel in the case has pointed out, “When the government—which is charged with enforcing the law—does not itself comply with legal requirements duly enacted by Congress and the Executive Branch, it undercuts its own authority and the bedrock American principle of the rule of law.”
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For access to the most relevant briefs pertaining to the BCH case, as well as expanded background information on the case, visit: https://americanstewards.us/delisting/delisting-bch/
