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757 Species Settlement
Greenwire, November 20, 2012

Court cool on hunters' bid to shoot down major listing settlement
By Lawrence Hurley

A federal appeals court appeared inclined today to find that Safari Club lacks the right to challenge a mammoth agreement between environmental groups and the Fish and Wildlife Service aimed at speeding up decisionmaking on whether certain species require Endangered Species Act protection.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit appeared to agree with the government's position that Safari Club cannot seek to gut the settlement, which took various species off a list of candidate species that the service agrees warrant listing but has taken no further action on because of lack of resources.

The settlement requires the service to make listing determinations on 251 species, including three -- the greater sage grouse, lesser prairie chicken and New England cottontail -- that Safari Club members would like to hunt (E&ENews PM, July 12).

The service must decide whether the species should be granted Endangered Species Act protection or not be listed at all. It cannot put the species back on the so-called candidate list, where some have languished for years.

Safari Club had unsuccessfully sought to intervene when the settlement was pending in the U.S. District Court for the District of Columbia. The group claims that the three species it has an interest in don't need to be listed because they are effectively protected under "well-regulated state hunting programs."

The group's attorney, Douglas Burdin, faced a similar reception today. Judge Harry Edwards, in particular, indicated he could see nothing in the law that suggested Safari Club could challenge the service's decision to agree not to keep species on the candidate list.

If the hunting group has such a right, "I can't find it," he said.

Parties can challenge the service when it puts species on the list and when a listing determination is made, the judge noted.

"When they decide something serious ... you have a right to comment," Edwards told Burdin.

Judge David Tatel took a similar line, questioning whether Safari Club could show that Congress' decision to allow the service to put species on the candidate list was made to protect the interests of outside groups rather than the agency itself.

Justice Department attorney Nicholas DiMascio pressed home that point, noting that the provision of the Endangered Species Act that set up the candidate list was a "relief valve for the service" when it lacked resources to carry out its duties.

© 1996-2012 E&E Publishing, LLC 

This article originally appeared here.

Photo © Paul S. Hamilton