In legal papers filed today, however, environmental groups show that Mark Rutzick, a former Bush official now representing the timber industry, has filed a lawsuit based on the draft regulations, not the actual law.
"The Bush administration's draft regulations gutting the Endangered Species Act haven't even been publicly proposed yet, but the timber industry is already trying to strip the nation's wildlife of protection." said Kristen Boyles, an attorney with Earthjustice. "The Bush administration is undermining protection of our nation's endangered species to benefit their friends and campaign contributors in the timber industry."
The timber lawsuit was filed on March 7, 2007, nearly one month before the draft regulations surfaced. Industry lawyers are trying to force the U.S. Fish and Wildlife Service to remove the marbled murrelet from the federal threatened list under a provision of the draft regulations. Current regulations contain no such requirement.
"The murrelet is just the tip of the iceberg," said Noah Greenwald, conservation biologist for the Center for Biological Diversity. "These draft regulations are really a rewrite of the Endangered Species Act itself, a litigation magnet designed to help industry strip protection from hundreds of endangered species."
Represented by Earthjustice, the Audubon Society of Portland, Center for Biological Diversity, Conservation Northwest, Environmental Protection Information Center, Gifford Pinchot Task Force, Oregon Wild, Seattle Audubon Society, Sierra Club, and The Wilderness Society filed papers with the court today requesting that they be granted "intervenor" status in the lawsuit. They intend to keep the administration and timber industry from colluding to remove protection for old growth forests and murrelets. They also asked the court to dismiss portions of the lawsuit that rely on the draft regulations.
The marbled murrelet was listed as a threatened species in 1992 in California, Oregon and Washington due to logging of old growth forests. In 1995, 3.9 million acres of critical habitat were designated to protect the murrelet. In 1997, the U.S. Fish and Wildlife Service estimated that the three state population was declining 4 to 7 percent a year. In 2004, demographic models indicated that the population could be extinct within 50 years. A 2007 U.S. Geological Survey report estimated that murrelets in British Columbia and Alaska declined by 70 percent over the last 25 years.
In the 1990s and early 2000s, Mark Rutzick was the primary timber industry lawyer on issues surrounding murrelets, salmon, owls, and old-growth forests. He represented the timber industry in a 2002 lawsuit challenging the murrelet critical habitat designation and seeking a "five-year review" of the species' status.
The Bush administration settled the industry lawsuit by agreeing to the 5-year review and to reconsidering the critical habitat designation. Over the objection of agency and independent scientists, the five-year review was altered by Department of Interior officials to recommend delisting. In 2006, the administration published a proposal to slash the murrelet's critical habitat by 94 percent to just 221,692 acres. In the meantime, Mr. Rutzick was appointed "special counsel" to NOAA Fisheries, where he helped shape the administration's endangered species policy with respect to controversial salmon protections.
On March 27, 2007, the online journal salon.com published the draft regulations, causing a public outcry.
On April 25, 2007, Senators Lieberman, Boxer, Lautenberg, Sanders, and Cardin sent a letter to Interior Secretary Kempthorne expressing grave concern about the leaked draft regulations. "We are concerned about any attempt to overhaul the Endangered Species Act program administratively, without the involvement of Congress.… [T]he draft revisions create the impression that the Department's leadership is focusing on reducing the scope and weakening the substance of the federal government's wildlife protection laws."
The draft regulations state: "§424.11 Factors for listing, delisting, or reclassifying species....(d) The Secretary shall delist a species if one of the following is found based on the best scientific and commercial data available:...(2) No longer meets definition. A status review determines that a species no longer meets the definition of endangered or threatened based on an evaluation of the species' status relative to the factors in section 4(a)(1)."
The actual regulations contain no such requirement. They state: "§424.11 …(d) The factors considered in delisting a species are those in paragraph (c) of this section…A species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons...(2) Recovery. The principal goal of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service is to return listed species to a point at which protection under the Act is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened."