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March 4, 2003

Court: Threatened Santa Ana Sucker Must Receive Critical Habitat

Conservation groups praise ruling

Contacts

Deborah Sivas, Earthjustice 650-723-0325

David Hogan, Center for Biological Diversity 760-809-9244

Jim Edmonson, CalTrout 818-865-2888

San Francisco

Conservation groups have received notice from U.S. District Court Judge Susan Illston ordering the US Fish and Wildlife Service to designate critical habitat for the Santa Ana sucker by February 21, 2004, as provided under the federal Endangered Species Act. Critical habitat extends federal protections to not just individuals of a listed species, but also to their declining habitat.

The sucker, a small fish once common throughout the Los Angeles basin, has dwindled significantly in numbers owing to loss of habitat to development and water diversions. The species survives in less than 25 percent of its historic range and is now limited to short stretches of the Santa Clara, San Gabriel, and Santa Ana rivers and Big Tujunga Creek.

"With the Santa Ana sucker, biologists see an indicator species," said Jim Edmonson of CalTrout. "Because the sucker requires clean water to survive, the species serves as a prime indicator of the water quality of southern California rivers and streams."

The ruling comes after a legal action taken by the American Fisheries Society, California Trout, Center for Biological Diversity, and Friends of the River.

"The Bush administration has now been ordered by a federal court to save this native Californian fish by protecting the waterways it needs to recover," said Earthjustice attorney Deborah Sivas.

Citizen efforts to protect the fish started with a listing petition in 1994, followed by lawsuits when the Fish and Wildlife Service refused to respond, and ultimately the November 2000 settlement that declared the Santa Ana sucker a "threatened" species under the ESA.

The sucker is the last Southern California native freshwater fish species that is not extinct or already listed. Conservationists worry Southern California's riparian habitat has been pushed to the limit and could collapse altogether. They hope the sucker and future generations of Californians will both benefit from the habitat protections.

In the ruling dated February 26, 2003, Judge Illston orders: that the service designate final critical habitat by no later than Feb. 21, 2004 and enjoins the service from issuing any biological opinion or written concurrence that "may affect" the species until such time as final critical habitat is in place.

"This is another case where the courts have agreed with conservationists that the service can't delay habitat protections by hiding behind an endangered species budget crisis of its own making," said David Hogan, Rivers Program Coordinator for the Center for Biological Diversity. "This court followed the logic a step further and found that developers shouldn't benefit from Bush's delayed habitat protections."

The service had requested it be given until Sept. 15, 2006, to designate critical habitat due to budgetary constraints and had strenuously argued that the court had no jurisdiction to enjoin consultation activities. The court disagreed. In her ruling, Judge Illston said:

"While this Court sympathizes with defendants' budgetary constraints, this Court also notes that plaintiffs first petitioned the Service to list the sucker as an endangered species in September 1994, over twelve years before defendants' [FWS] proposed deadline; and that after several delays and the filing of two lawsuits the Service was required to issue a final determination of critical habitat by January 26, 2001 over two years ago."

"The Bush administration was dragged kicking and screaming into doing what the law requires. Court orders now seem necessary just to get this administration to do its job," said Sivas of Earthjustice.

Critical habitat has been designated by Fish and Wildlife for only 12 percent of all species listed as threatened or endangered, despite an Endangered Species Act mandate that it be identified for all species at the time of listing.

Listing could lead to limitations on destruction of fish habitat along the Tujunga Wash of the Los Angeles River and along the San Gabriel River on both private lands and in Angeles National Forest. The listing could also affect the renewal of the licenses for hydroelectric facilities on the Santa Ana River.

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