October 6, 1995
Ms. Mollie Beattie, Director
U.S. Fish and Wildlife Service
1849 C Street, NW
Washington, DC 20240
Dear Ms. Beattie:
We are writing to you on behalf of The Fund for Animals ("The Fund") and Australians for Animals ("AFA"). The Fund and AFA filed a petition for the listing of the koala (Phascolarctos cinereus) on May 3, 1993. This petition received a positive 90-day finding on October 4, 1994 (59 Fed. Reg. 50557). To date, 17 months after the petition was filed, the U.S. Fish and Wildlife Service (Service) has failed to issue a one-year finding on the petition in violation of the Endangered Species Act (ESA), 16 U.S.C. para. 1533(3)(B).
In an attempt to determine the basis for the delay in the one-year finding and to obtain a firm commitment from the Service for the publication of such a finding, on September 29, Sue Arnold of AFA and D.J. Schubert, representing The Fund, met with John Rogers, Marshall Jones, Dr. Charles Dane, and Dr. Ron Nowak of your agency to discuss the koala petition.
The justifications for the delay cited by Mr. Rogers, Mr. Marshall, and Dr. Dane represent what we consider to be improper stalling tactics designed to put off a listing decision while the koala continues its slide toward extinction. The three primary reasons offered by Service officials for the delay are: (1) too much information to process; (2) a lack of specific data pertaining to the destruction of koala-occupied habitat, and (3) deference to a sovereign government. Each of these reasons are considered below.
1. Too Much Information:
It is ironic that the Service would justify its illegal delay in publishing a one-year finding on the petition based on the amount of documentation submitted in support of the petition. The Fund and AFA elected to submit that information with the petition to facilitate Service review of the petition. The Fund and AFA were confident that by supplying such documentation, material that otherwise may have been difficult to obtain, the Service would be more likely to meet the deadlines imposed in the listing process. Now, as a consequence of petitioners' effort to ease the agency's workload, the Service claims that there is too much information to process within the required time frame. That rationale does not make sense and cannot justify continual delay.
2. Specific Koala Habitat:
Service officials contend that the petition did not contain information about the present status and future management of currently occupied koala habitat. We disagree. The petition and maps submitted with the petition provide a clear delineation of historical and current koala habitat. The petition and supplementary comments also provide substantial evidence demonstrating the past, present, and future management, or lack thereof, of historical and current koala habitat. In short, the petition sets forth "the best available scientific data," as required by Section 4, and that is more than sufficient to support listing of the koala as proposed in the petition at this time.
3. Deference to a "Sovereign" Government:
Service officials specifically stated that they were inclined to deny listing in deference to the preferences of a "sovereign" government, i.e. Australia. But there is nothing in the ESA which requires or suggests that the Service give deference to the opinions of a "sovereign" government when considering a listing petition.
While the Australian government may not approve of the listing petition, unless it has credible scientific information to contradict the reasoning and data in the petition, the Service should not and can not give deference to the Australian government's desires and wishes. Despite the Australian government's opposition, the fact remains that there has and will be enormous destruction of koala habitat; that there are persistent drought conditions through much of Eastern Australian; and that existing regulatory mechanisms have clearly proven inadequate to reverse the downward spiral for the species. To defer to Australia under these circumstances would represent a total abdication of the Service's independent statutory duties.
In short, we believe that the petition and supplementary comments present more than adequate evidence to support the petitioned action. Nevertheless, to provide an even more compelling basis for listing, The Fund and AFA will, before November 17, submit to the Service whatever additional information is available to address the Service's stated concerns regarding the continuing destruction of habitat, including koala habitat, in Australia and the change in legal status of the koala in Queensland.
Because we will be submitting this additional information (and asking that it be made a part of the record), The Fund and AFA are willing to hold off on filing a lawsuit over this matter until January 30, 1996 - nearly nine months after the finding should have been published as is required by the ESA. Should no one-year finding be published by that date, The Fund and AFA will take appropriate action, including litigation, to expedite this process.
Considering the current status of the koala and continuing deterioration in the quantity and quality of koala habitat, it is essential that the listing process proceed as rapidly as possible. In this case, even a positive one-year finding could significantly benefit the koala and its habitat since such a finding will send a clear signal to the Australian government that its management of koalas and koala habitat must be dramatically improved.
Should you have any questions about this letter, please contact us at your convenience.
Sincerely,
Eric Glitzenstein
D.J. Schubert
Meyer & Glitzenstein
1601 Connecticut Ave. NW
Suite 450
Washington, DC 20009-1035
Telephone (202) 588-5206
Fax (202) 588-5049
cc: Mr. Bruce Babbitt, Secretary, U.S. Department of the Interior