Region 3 Guidance for Potential Petitioners

 

Purpose of this Guidance

Region 3 of the Fish and Wildlife Service (Service) has one of the smallest Endangered Species budgets and staff sizes in the country, larger only than Region 7, Alaska. Thus, petitions for actions related to the Endangered Species program easily can become a significant and counterproductive workload if they deal with actions that ultimately prove to be "not warranted" or if they force the Service to expend resources on resolving requests that are not petitionable actions under the Endangered Species Act (ESA).

 

On the other hand, petitioners provide the Region with an important service if they draw the Service's attention to warranted, high priority actions that are petitionable under the ESA. The value of this service is greatly enhanced, and the Service can complete the requested action more quickly, if the petitioner presents a complete, well-written petition that is prepared in a format similar to that of a Federal Register listing proposal notice.

 

The purpose of this Guidance is to assist potential petitioners in determining if their request is petitionable under the ESA, and in preparing a document that will be more likely to achieve the requested action as efficiently and quickly as possible.

 

Purpose of the ESA Petition Process

The purpose of the ESA petition process is to allow any knowledgeable individual or organization to direct Service attention to the conservation needs of a particular taxon, with the intention of having the Service take regulatory action under the authority of the ESA. The petitioner may believe the Service is unaware of the conservation needs of the taxon, is choosing to ignore the needs of the taxon, or is deferring action on the taxon by incorrectly prioritizing the pending listing actions in the Region. In each of these situations the petition process provides a means for parties outside of the Service to compel the agency to evaluate available trend and threat data, or to re-examine the listing priority for a particular taxon.

 

The petition process cannot obligate the Service to (1) take regulatory actions that are not supported by available data, (2) collect additional data to support a non-substantial petition, and (3) initiate listings or amendments to critical habitat designations if these actions are precluded by other higher priority actions being undertaken by available Service staff and funding.

 

Petitionable Actions

Two types of actions are petitionable under the provisions of the ESA:

1) petitions to list, reclassify, or delist species

2) petitions to revise critical habitat

 

Other actions related to the ESA are not specifically petitionable under that Act. Under the Administrative Procedures Act (APA) (§555(e)) anyone has "the right to petition for the issuance, amendment, or repeal of a rule." Therefore, petitions for actions such as designating new critical habitat or issuing or amending special rules for listed species will be treated as petitions under the APA and are not subject to the ESA's strict deadlines. However, APA petitioners should receive prompt notification of the receipt of their petition, and the Service must consider the request and notify the petitioner of any action taken as a result. Petitions for actions such as these are referred to as "near petitions."

 

Emergency listing is not a petitionable action. Therefore, petitions requesting emergency listing will be treated as petitions for a normal listing.

 

Finally, because the ESA was not intended by Congress to address the threats to, or the population trends of, humans, it is not possible to petition for the listing of human beings.

 

Where to Send Petitions

Petitions can be directed to any employee of the Department of Interior, but for the fastest processing they should be sent to any Ecological Services Field Office in Region 3, or to the Listing Coordinator (ES), U.S. Fish and Wildlife Service, Whipple Federal Building, 1 Federal Drive, Ft. Snelling, MN 55111.

 

Minimum Requirements for a Petition
To be considered a petition a document must:
clearly identify itself as a petition,
be dated,
contain the petitioner's name, signature, address, telephone number (if any), and business or institutional affiliation (if any),
and clearly indicate what action is being requested

 

Five Factors to be Considered in the Listing Decision

The Endangered Species Act (§4(a)(1)) specifies that the following five factors be considered when determining whether a species should be listed as threatened or endangered:

the present or threatened destruction, modification, or curtailment of its habitat or range;

the overutilization for commercial, recreational, scientific, or educational purposes;

disease or predation;

the inadequacy of existing regulatory mechanisms;

other natural or manmade factors affecting its continued existence.

 

Any formal proposal by the Fish and Wildlife Service to list a species as endangered or threatened must discuss the causes of the taxon's decline in terms of these five factors. Therefore, a petition to list a taxon as endangered or threatened should discuss the documented threats in this same manner. A petition organized in this way will assist the Service's analysis and will speed the development of a formal proposal if the petitioned action is determined to be warranted. Refer to a recent Federal Register listing proposal for an example of a discussion of these five factors.

 

Recent and Rangewide Data

Neither the ESA nor the Service has a formal standard for the magnitude or recency of the data that should be provided to support a petition. However, the Service will be more likely to come to a prompt and favorable (to the petitioner) determination if the petition contains or references recent data that cover the taxon's entire range. If the data are more than five years old or cover less than the majority of the taxon's range the Service will carefully weigh their applicability to the current and rangewide situation; doubt as to their applicability may delay the Service's determination and is more likely to tip the balance away from a favorable petition finding.

 

This is not to say that more data is better. A petition containing reams of data may also slow the Service's determination (but not beyond the 12-month deadline) due to the time required to review it. Ideally, a single recent status report written by a credible and recognized expert (or other qualified scientist) will be submitted for each state within the taxon's range.

 

Reliable and Credible Data

The Service must use the best available scientific and commercial data when making a decision to list a species. This means that petitioners should strive to submit only reliable and credible data; other data will be disregarded by the Service in order to comply with this requirement. Papers published in peer-reviewed journals are among the most desirable data sources.

 

Unpublished information supplied by individuals with demonstrated and recognized knowledge in the subject area is generally considered to be reliable, as well. Uncorroborated anecdotal information and data from sources lacking established records of expertise should be avoided.

 

Undescribed Taxa

Generally, the Service will only consider an entity to be eligible for listing if it is a scientifically recognized species, subspecies (including plant varieties), or a discrete population of a vertebrate species or subspecies. However, if a previously undescribed taxon has had a description prepared for it and that description has passed through a scientific peer review process, the taxon will be considered eligible for listing.

 

Petition Findings and Thresholds

Following the receipt of a valid petition the Service begins the process of reviewing the data in order to make a "90-day finding." If that finding is that the petition is "substantial" the Service immediately begins gathering additional data in order to make a "12-month finding." In both cases, the time frames for these findings begin on the date the petition is received.

 

90-Day Finding: Substantial vs. Not Substantial

 

In making its 90-day finding the Service will use information contained in the petition and information already available in Service files and contained in other readily available reference sources. The Service will also provide copies of the petition to any appropriate state agency or affected tribal governments and will use any information they provide prior to the deadline.

The Service will make a finding that a petition is "substantial" if:
(1) the subject of the petition is eligible for treatment under the ESA, that is, the subject is a valid species, subspecies or plant variety, or distinct vertebrate population segment, and
(2) information contained in the petition, available in Service files, or contained in other readily available sources "would lead a reasonable person to believe that the petitioned action may be warranted."

If one, or both, of these requirements are not met the Service will find the petition to be "not substantial."

A notice of the Service's finding is published in the Federal Register as soon as practicable following the completion of the finding. The 90-day finding is an administrative document and is normally provided to the petitioner within 15 days of the notice preparation.

12-Month Finding: Warranted, Not Warranted, or Warranted But Precluded

If the Service made a substantial 90-day finding a status review is immediately initiated to gather additional information on the petitioned taxon. Based upon the information gathered during the status review the Service will make a decision, within 12 months of receipt of the petition, whether the petitioned is warranted or not warranted. The same standards apply as are used during "normal" decisions on whether a species is to be listed as threatened or endangered. That is, is the taxon in danger of extinction throughout all or a significant portion of its range?; or is the taxon likely to become endangered throughout all or a significant portion of its range (for endangered and threatened classifications, respectively)?

If the petitioned action is found to be warranted, the Service prepares and publishes a listing proposal which normally also serves as the notice of the 12-month finding. Similarly, if the action is found to be not warranted, the 12-month finding is published as a notice in the Federal Register. In either case, the petitioner receives a copy of the administrative finding and a copy of the notice within 15 days of its publication in the Federal Register.

If it is determined that a petitioned action is warranted the Service will assign a listing priority number in accordance with the listing priority system established in 1983 by 48 FR 43098. Priority rankings are based upon degree and immediacy of threat, as well as the taxonomic uniqueness of the biological entity. (That is, a subspecies or distinct population segment is lower priority than a full species, and a species which is the only species within its genus is the highest priority.) If the Service, due to expeditious progress being made on higher priority rules, is prevented from promptly proposing an otherwise warranted petitioned action, a warranted but precluded finding is made.

Warranted but precluded petition findings must be re-evaluated annually by the lead region to determine if their listing priority number is sufficiently high so that they are no longer precluded by higher priority listing actions. This process is called "recycling," and a notice of the annual finding from the recycled petition is published in the Federal Register. Petitioners are notified of the Service's determination at the conclusion of the annual review process.

 

Questions?

If you have any questions concerning the petition process or wish to know if there has been a "lead office" assigned in Region 3 for a species of interest to you, contact one of our Ecological Services Field Offices, the Regional Ecological Services Office (612-713-5350); ask for the Regional Endangered Species Listing Coordinator).

 

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