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International Birds Initiative
Law360, June 17, 2009

US Settles Suit Over 31 Foreign Bird Species
By Jesse Greenspan

New York -- The U.S. Fish and Wildlife Service has agreed to settle a lawsuit by moving ahead with the process for protecting 31 species of foreign birds under the Endangered Species Act, including the possibly extinct slender-billed curlew.

In a consent decree signed Monday by Judge Charles R. Breyer of the U.S. District Court for the Northern District of California, the agency committed itself to publishing final listing determinations for six species of foreign birds and proposed listings for an additional 25 species between June 30 and Dec. 29.

The FWS also agreed to pay attorneys' fees of just over $3,000.

“The service has agreed to complete these actions based on the due dates established in the court agreements,” said Valerie Fellows, a spokeswoman for the agency.

As part of the agreement, the Center for Biological Diversity — an environmental group that filed the lawsuit earlier in June — reserves the right to continue litigating if FWS fails to meet any of its obligations under the consent decree.

Because the consent decree does not cover the substance of the findings, the center could also bring an action if FWS finds that one or more of the 31 species does not warrant listing.

“With foreign species, the U.S. government can't control the actions of other governments, [but] it would provide U.S. federal agents with an additional method of prosecution,” said Jacki Lopez, an attorney with the environmental group.

“The most important thing is that moving these species forward in the listing process helps bring attention to their status,” Lopez added.

An ESA listing also authorizes the U.S. to provide financial assistance to other countries for conservation efforts and regulates the export and import of trade.

Most of the 31 species are also protected under the Convention on International Trade in Endangered Species of Wild Flora and Fauna, a treaty designed to prevent species extinctions caused by international trade.

The FWS received two different petitions, one in 1980 and one in 1991, from a group of ornithologists who asked the agency to list more than 70 species of foreign birds.

Some of those have been listed already and some remain on the candidate list, according to Lopez.

For the others, FWS said they warranted listing but that their listing was precluded by higher-priority listings.

Over the years, the Center for Biological Diversity has filed lawsuits to try and keep the process moving along, including the latest one.

“There are a few different lawsuits that we brought, for the most part just to compel the service to meet its statutorily mandated time lines,” Lopez said. “It was missing dates.”

The 31 birds mentioned in Monday's consent decree inhabit locations throughout the world, including Brazil, Spain, India and the Marquesas Islands.

Perhaps the rarest of those is the slender-billed curlew, which has had no confirmed sightings since 1998. Other species include the Galapagos petrel, the blue-billed curassow, the black-hooded antwren and the fringe-backed fire-eye.

Overall, 573 foreign species, including 185 foreign birds, are listed under the ESA. More than 1,300 domestic plant and animal species are also listed under the act.

The case is Center for Biological Diversity et al. v. Salazar et al., case number 3:09-cv-02578, in the U.S. District Court for the Northern District of California.

Photo © Paul S. Hamilton