Animal Law Podcast #102: A Case of Justice Delayed for Endangered Animals

Mariann Sullivan: Excited to talk to you, excited to talk about this case. The reason I was so interested in this case is it kind of tackles some huge, huge problems and in somewhat more of a global way than a lot of Endangered Species Act litigation seems to do. And that's what we got to be doing right now. So before we start with the case, let's just set the scene a bit.

We all hear about the extinction crisis and that this is just a nightmare and everything is terrible, but can you make it a little bit more real? How bad is it? And, you know, what kind of future are we looking at?

Ryan Shannon: I hate to be completely doom and gloom, especially to start the podcast, but we are in what many scientists believe to be a sixth extinction crisis. So I think, for most people, they're familiarity with an extinction crisis is from being a kid and learning about the dinosaurs and the mass extinction event that wiped them out.

And certainly we're not dealing with an asteroid here. But what we are dealing with is the impacts that the human species is having on the planet and the impact that is having on the planet's biodiversity. So we are thousands of times higher than what is considered to be the normal background rate of extinction, kind of the natural process of evolution, currently. And, over a million species are thought to be in peril of extinction in the coming century, largely as a result of anthropogenic impacts, habitat loss, climate change, unchecked development, and the like.

So the situation is serious. It is quite dire.

Mariann Sullivan: I know that the Endangered Species Act, because I'm old enough to remember, is an amazing, amazing law. I mean, I don't think we could pass it today. But, you know, there's still enormous questions about whether it's up to the job, especially given the way it's being implemented. And, while everyone listening knows a little bit about the Endangered Species Act, I imagine, I think we should probably start with a fair amount of background on it.

And first of all, what is an endangered and a threatened species under the Act? From what you're saying, there's really a lot of them.

Ryan Shannon: Yeah, there are quite a few that are listed under the Act, and there are many, many more that likely qualify for listing under the Endangered Species Act. So, the Endangered Species Act protects endangered and threatened species. Species don't receive any protections, really, to speak of, except for some very minor ones, until they are listed, which is a legal process.

It involves notice and comment for the law students out there and a proposed and final rule. Under section four of the Endangered Species Act, there is a petition process. So, any individual can submit a petition to either the U. S. Fish and Wildlife Service for Terrestrial Species, for the National Marine Fisheries Service for marine species, to list a species as either endangered or threatened.

And an endangered species is a species that is in danger of extinction throughout all of its range or in a significant portion of its range. And then a threatened species is a species that is in danger of being extinction in the foreseeable future throughout all of its range or in a significant portion of its range.

And really what Congress intended with the threatened designation was to allow the services to protect species before it was too late, before they passed the point of no return before it would be too hard, too expensive, et cetera, to take action, to bring them back from the brink of extinction, so that we could take action earlier on, when their population numbers were higher, when there was really a greater chance of turning this slow ship around. And unfortunately, what we've seen is that species generally don't receive protection until they're really in dire, dire straits.

You know, often only thousands of individuals, if not fewer, remaining in the wild, significant habitat loss. It's not uncommon to see species listed when they've already lost 90, 95 percent of their historic ranges, and it really makes recovering them quite hard.

Mariann Sullivan: Yeah, and we're going to be talking, mostly, about the listing process and what the delays are in that. But before we get to that, how are listings initiated? Are they all initiated from outside the agency? Is it all up to NGOs and private people, I guess, if they have the wherewithal, they could also initiate the listing process? But does it come from within the government at all, or does it all come from us?

Ryan Shannon: So when the Endangered Species Act was first passed in 1973, it was thought that the services themselves would be the ones doing the listing process. And at the time, the Smithsonian Institute, which was kind of the governmental scientific body, also played a role in that they developed a relatively large list of thousands of species that they thought warranted listing and gave that to the services.

But unfortunately, the agencies did very little with that after the Act's passage, and it led to multiple amendments by Congress to spur the agency to action. One of them was the amendment to allow for interested individuals to petition for species. So that means that you and I, or an organization like the one I work for, the Center for Biological Diversity, or a scientist, or any concerned individual, could submit a petition to the service outlining the reasons why and the scientific information supporting a species listing as an endangered or threatened species.

The act was then amended again to set strict deadlines for the services to respond to those petitions because left to their own devices, the services really weren't acting in any kind of expeditious manner to either list species of their own accord or to respond to listing petitions. And regrettably, the state of affairs today is that the services take almost no action on their own initiative, the vast majority of it is done, in response to listing petitions submitted by groups like the Center for Biological Diversity, and then, as a result of litigation filed in federal court to enforce the Act's strict deadlines that often results in settlement agreements for the service to finally take action by a date, even if that date is years and years after the Act otherwise ordered the agencies to take action on the petition.

Mariann Sullivan: Just as an overview, because I know we'll get into more details, can you give us an idea of what the deadlines at issue are here? And my understanding is that these were the result of amendments in the 80s because things had become so, so slowed down. Can you just give us an overview of those rules on deadlines?

Ryan Shannon: Yeah, happy to. So, after a petition is received by the service, that receipt triggers a host of deadlines. The first is to make what's called the 90 day finding. This is basically like a does it pass muster test? You know, the service looks at the information contained in the petition and asks Is there enough scientific information in here, substantial scientific information, that the proposed action, the listing of whatever species it may be, as endangered or threatened, may be warranted?

So it's a very low bar. You know, it's just saying, given the facts as they're set forth in the scientific documentation provided, does this deserve a closer look? So you can't write something in crayon, you can't say, I think panda bears should be listed as endangered species because they're cute.

You have to do more than that, but it is a relatively low hurdle, and then that results in the services, or should result in the services engaging in a status review, which is a much more in depth review of the species status and assessment of its current conditions of the threats it's facing and what its future condition might look like.

And that results in what should be a 12 month finding. So, 12 months after a petition is received, if things go according to statute, the service is supposed to make a finding on whether a species warrants listing as an endangered or threatened species, doesn't warrant listing, or if listing is warranted, but precluded.

Basically, we think that the species warrants listing, but there are other species that we're working on right now that we think are higher priorities. And we want to address those first before returning to this species. If they make that warranted but precluded finding, it basically puts the species back in the hopper.

It's as if the petition was just resubmitted, so the service has to revisit that finding within a year, and then decide again, you know, does the species warrant listing right now? Are we going to issue a proposed rule? Or, is it still precluded by the other actions that we're taking to add species to the list and protect them?

Mariann Sullivan: That seems like a huge potential loophole, that you can just keep kicking it down the road.

Ryan Shannon: It certainly can be, and it's been the subject of other litigation, that's been brought by the Center. There are caveats to the warranted and precluded process. Congress recognized that it could be a potential loophole. To be fair, it is supposed to be a little bit of a pressure release valve where the service can, recognize that a species warrants listing and say, we're doing the best we can with the resources we have and we will get to this as soon as we can.

But, in order to make that finding, they have to show that they are making expeditious progress to add species to the list of endangered and threatened species. And so there is some kind of showing that's required of the service and the courts have given some weight to that term, saying, you know, you actually have to show what actions you've taken. And not only that, but it really is the best you can do with the resources that you have.

But to go back, if they find that a species is warranted, rather than not warranted or warranted but precluded. They issue a proposed rule to list the species as either endangered or threatened throughout all or in a significant portion of its range.

That goes through notice and comment. And then within a year, the service has to follow it up with a final rule listing the species as endangered or threatened, or in limited circumstances, they can withdraw the rule if the science doesn't really support the final listing of the species. And there are limited caveats that allow them a little bit more time to make decisions, but ultimately, it really can't take more than two years from the receipt of a petition to the date when the services are supposed to make a finding in response to the petition.

Mariann Sullivan: I mean, I know that that's the ideal amount of time, but even, like, two years is a long time, in a dire, frightening world. So, at what points in this process is judicial review possible? Is there judicial review after the 90 day finding?

Ryan Shannon: Unfortunately not, the 90 day finding, the way it's worded in the statute, it's not an absolute duty. It's, to the maximum extent, prudent. And so it's really the 12 month finding that provides the first hard deadline where you can go into court and say, make a 90 day finding, make a 12 month finding if the service hasn't acted in time.

And then there's judicial review over non-warranted findings and warranted but precluded findings as well.

Mariann Sullivan: What about after the final listing, or the lack of final listing, is there again a possibility for judicial review there?

Ryan Shannon: Well, if there wasn't a final listing, you would be in a similar situation where you'd have to go into court and get an order requiring the service to make a final listing. You know, some of the species at issue in this suit, the violation in question was the lack of a final listing following a proposed rule.

But then there is certainly judicial review over final listings, as I think everyone knows, the ESA can be quite litigious, whether it's us challenging an ultimate decision not to list a species, which we don't think accords with the best available science, or other interest groups challenging the final listing because they don't want to see those protections, both for the species and its habitat going into effect.

Mariann Sullivan: Yeah, and I think we are all familiar with the fact that there's a hell of a lot of litigation going on with the Endangered Species Act. Is this lawsuit part of an effort to get a more global solution than attacking each of these processes at each of these points over and over and over?

Because it struck me as I was reading this that the agency's major argument for everything is they don't have the resources, but they must have a million lawyers. They must be spending a hell of a lot of resources on litigation.

Ryan Shannon: The litigation resources might be a little bit divorced from the listing program.

Mariann Sullivan: Yeah, I'm taking an overall kind of look, you know.

Ryan Shannon: I think we can give the service a little bit of sympathy in that I certainly don't doubt that they need more money and more resources to truly tackle the ongoing extinction crisis.

And it's something that Congress hasn't provided. That being said, we certainly think that they can do a lot more with the resources that they have and that they have been more efficient and done more with limited resources in the past. Unfortunately, although the Act envisions findings being made on listing petitions within two years, many species wait far longer than that.

The average can be upwards of nine years before a final decision is made, and a lot of that is due, in my opinion, to a lot of unnecessary bureaucratic review and kind of creep over the years of as more and more steps have been involved in the process, in ways that I don't think actually benefit the ultimate listing decision, either from a scientific standpoint or from a legal standpoint. And also honestly, politics have gotten involved, even though the act was amended in the 80s, following the Reagan administration, to make clear that listing decisions are only supposed to be based on the best available science and that things like politics and economics aren't to play any role. The truth of the matter is, is that politics often play a significant role in listing decisions.

And there's numerous cases where a judge has thrown out an agency's decision not to list a species because it was clear that the decision was based on politics and not on any scientific finding.

Mariann Sullivan: Yeah, no, I'm sure. That has a lot to do with the arguments you're making in this litigation. The Endangered Species Act is obviously a lightning rod for a lot of different attitudes and the fact that we still have it is something of a miracle, and they haven't managed to completely get rid of it, but still. I agree with you that you can't help but sympathize with the agency to some extent when you see the courts like talking about, they can't argue that they don't have the resources because they don't have the resources, they don't have the resources, though your point is good, that perhaps they don't need as many resources.

I also thought that it was really interesting I mean, I think of it as just politics, but bureaucratic creep is a real issue in everything, isn't it? Like, things just get more complicated. The longer things last, the more they get complicated, the more people get hired, the more processes have to be gone through.

It's just the way things seem to work in the world. But before we get into all of that in more detail, give a little more background on before we get into the actual lawsuit, because people, I imagine who are listening, know that there's a citizen supervision in the Endangered Species Act, but it's really quite extraordinary, isn't it?

I mean, doing animal law instead of environmental law most of the time, it astounds me sometimes how much it is possible to get into court. And from what you've said, particularly when you said that so much of this is being initiated not through the government, but through NGOs, they're also able to complain when their efforts to initiate things don't work. So tell us a little bit about the citizens supervision and I was interested to see that it is not, it doesn't seem to be limited in any way. It's not just to a listing decision. This overall suit that you're bringing to the process is also coming within the purview of the citizen supervision. Is that right?

Ryan Shannon: That's correct. Yeah, the Supreme Court called the ESA's citizen supervision one of remarkable breadth. It allows citizens to file suit, not only to enforce some of the more well known provisions of the act. Like, you know, I think most people, when they think of the Endangered Species Act, think that it's the prohibition from harming, killing, harassing endangered species. The idea that you can't go out and poach an endangered species. And the citizen suit provision of the ESA allows individuals to enforce those prohibitions. But it also explicitly allows individuals to enforce the non discretionary duties found in Section 4 of the ESA.

And Section 4 is primarily the process by which species get listed and critical habitat gets designated. And so it allows citizens to go into court to enforce the deadlines that the service has in response to petitions, and then it explicitly gives district courts the authority to order The Secretary of the Interior, who is the ultimate authority, even though it's delegated to the Fish and Wildlife Service, gives the district courts the authority to order The Secretary to undertake those non discretionary duties.

So it is a citizen supervision of remarkable breadth, and I think Congress showed a lot of foresight in knowing that it was necessary to give individuals, what the Supreme Court has said, the ability to be private attorney generals and to enforce the act themselves, because it's only through that enforcement, honestly, that we've seen much progress on the listing front, for quite a long, long time.

It's been decades since the service really did anything on its own initiative on any kind of scale.

Mariann Sullivan: When I thought of that, just preparing for this, because I'm not that familiar with the listing process, it had occurred to me that it doesn't seem like the government does any of this because of private organizations, which, you know, thank God you guys are there, but, it's a little disappointing in some ways.

But. This is not the first litigation, obviously. There's been a lot of litigation regarding specific species, has there also been overall litigation about the Fish and Wildlife Service's general failure to meet deadlines? Is this part of this history?

Ryan Shannon: There has, so there's been plenty of litigation over individual species or groups of species that folks have petitioned for. And then it feels like, unfortunately, we're on this pattern where about once a decade, either ourselves or somebody else, the original large suit was brought by Funds of Animals, bring suit over the entire listing process, so to speak, in that they sue over kind of all of the overdue deadlines in one go in the hopes that it's going to spur programmatic reform. Our hope would be that the service finds a way to find efficiencies within its system so that it can finally meet the act's deadlines and not treating this non discretionary duty as this kind of discretionary, we'll get to it when we can. Mandate that they do now.

Mariann Sullivan: So this, we'll get to it when we can, this is kind of obvious, but delay is just incredibly dangerous here. Like, things get worse. Species go extinct, right? I mean, I assume species have gone extinct waiting for the government to get around to looking at them.

Ryan Shannon: At least 47 species have gone extinct while waiting for protection. So that means that they were petitioned for, and while the petition was pending with the service, they went extinct. Unfortunately, we think that number might be slightly higher. There's one species at issue in this suit, the Avalon rock snail, which we fear might be extinct due to habitat loss of it's only remaining habitat. And there may be others out there that have gone extinct in the meantime.

And then beyond extinction, there's been numerous, or at least a couple of recent scientific studies that have shown that the delay itself just has very dire, dire consequences. I mean, it's rare, and honestly, I can't think of an example off the top of my head that a species kind of turns around and starts doing better sua sponte after it's been petitioned.

The normal course of events is that these species were doing poorly when they were petitioned. That's why they were petitioned, and they continue to do poorly while they're waiting for protections, and that delay just means that whenever the service ultimately makes a decision and ultimately provides the protections of the Act, which then should result in critical habitat designation or a recovery plan and the protection we'll take, et cetera, you know, that species has dwindled to the point where it's really going to take heroic efforts and a very long timeline for the species to recover.

You know, some of the critique that you hear of the Act is despite it being incredibly successful at preventing species from going extinct once listed, not necessarily while waiting to be listed, but once listed. One of the critiques is, why aren't we seeing more species come off the Endangered Species Act?

Why aren't more of these species being delisted due to recovery? And the truth of the matter is, is if you look at the recovery plans that have been developed for the species that are protected by the Act, it's not as if they're going to get protected, we can do a couple of easy fixes, and then they're suddenly going to do much, much better.

In the majority of the cases, you know, we're looking at decades long timelines to reestablish these species, address the threats, and then give them time to rebound. You know, even after you've addressed the threats, stopped the habitat loss, whatever it may be, they're still going to need time to simply rebound and try to re establish themselves to the point at which protections may no longer be necessary.

So that requires both significant effort and resources and also patience.

Mariann Sullivan: Is one of the points there that if the service would get a little bit more on the ball and do things faster, perhaps these species wouldn't get into such a dire place by the time they're helped out, so that they could rebound faster and ultimately it would be cheaper?

The bottom line being money always, to actually catch them before they're at the edge of disappearing.

Ryan Shannon: Yeah, I think that we really need to rethink what we consider to be a threatened species. I think we have an understanding of what an endangered species is. You know, those species that are really standing on the precipice, that are really in danger of going extinction in the near future.

I think for the act to function as intended, to function as a means by which species can recover such that the protections of the ESA are not necessary, we need to be listing threatened species far, far sooner when we can protect their habitat and ameliorate the threats they're facing.

You know, we're talking generalities here. It's going to depend on the species, but when they have tens of thousands of individuals or hundreds of thousands of individuals left, but the threats are quite clear and the direction that they're heading in is quite clear that they need help, if we can take action at those earlier stages, maybe we can take less restrictive actions and achieve the outcome that we all want, which is to see these species recover.

Once you get down to a few thousand individuals left, we really are in a situation where every single individual matters and where, you know, tighter controls, tighter prohibitions are necessary to protect those few remaining individuals.

Mariann Sullivan: Yeah, it does seem crazy. The other thing that I think we should touch on, though I'm not sure that the audience of this podcast wouldn't understand, but I imagine a lot of people hearing you talk about this would say, who cares about the oblong rock snail? Was that it? The oblong rock snail that you mentioned?

I mean, most of the species that are listed in this lawsuit are, you know, things that sound similar to oblong rock snails, that we've never heard of, and we don't know why they matter. So why do they matter? Why do we care?

Is it just that we need to save each of these species or in saving them are we doing something more globally about changing the way the world relates to the wild?

Ryan Shannon: I think that different people have different answers to this question and that, for some, there is maybe just a moral abhorrence to knowing that a species has gone extinct because of our actions and we did nothing to save it and that the world's lesser for it. That something unique that took thousands of years to evolve, that is like nothing else on earth, is no longer there because of our actions that may have been modified so that, it could have been given room to exist. And so I think there's that way of, viewing things.

There's a more human centric way of viewing things, and this comes up in the legislative history, where you can view them as resources for problems that we may not know exist. You know, many of our medical advances have come from nature and have come from species that have developed very unique and specific coping mechanisms for their environment. You know, it may be that they have some ability, some gene that slows aging, fights bacteria, fights cancer.

So who knows what the case may be? They may be resources and answers for questions and problems that we don't even know we have. So there's that way of looking at it. And then I heard a metaphor that I liked, which addressed the question of, why does this species matter? Like, it doesn't seem to serve any broader purpose.

And, I could say the same thing walking down the aisle of an airplane and say, like, well, you know, like, this buckle doesn't seem necessary for flight. Well, this screw doesn't seem necessary. So, like, I'll take that out and I'll take that out. And like, this bolt isn't really doing much.

And then all of a sudden, before you know it, you've removed a linchpin, and then suddenly you're hurtling towards Earth, you know, the ecosystem has collapsed, you've set off a chain of reactions that you did not anticipate. And I think that it just shows quite a bit of ego and a lack of humility to assume that we know. Assume that we know that if this one species was to disappear, it wouldn't really matter in the grand scheme of things, and that it might not have significant consequences.

Mariann Sullivan: Yeah, that's a really great way of expressing all of these different attitudes towards the Endangered Species Act and what it's accomplishing. But I also wonder whether there's an idea that in focusing on one individual species, don't we create the possibility that we will be able to resolve some of the damage that we're doing to the world as a whole, obviously climate is the one that comes to mind.

It's not the only devastation that we're perpetrating on the planet, but both in addressing the fact that we now have to save this species and addressing what needs to be done to do that. But also the fact that this law exists and thinking that, well, if we do start wrecking these species, we're going to have to deal with this law, so maybe we should prevent some of the harms.

I don't know whether that enters anybody's mind, but I would assume it's one of the purposes of legislation like this. If you're going to have to face the consequences, the very specific consequences, maybe it will prevent you from doing some of the overall harms.

Ryan Shannon: Yeah, I have this cartoon that I like, and it's all these scientists standing at a conference about global warming. One of the scientists stands up and screams, and what if we did all these great things for no reason? You know, like, what if we came up with alternative energy and decarbonized the economy and it was all for nothing?

When in reality it would probably just make life better for everyone, regardless of whether or not it's absolutely necessary to halt and reverse climate change. And I think that that's the hope. I mean, the way that the center approaches it and the way that I approach it is that we try not to only focus on the charismatic species with large ranges for protection because we think that all species deserve protection, from those large charismatic megafauna to the very small endemic species that, you know, may only inhabit a few caves in the southeast.

But that's not to say that I think that protecting species and protecting their habitat is also a very important tool for protecting our public lands, for preserving those few wild spaces, spaces that still remain and for fighting climate change. You know, to protect these areas from unchecked development, and to preserve old forests for carbon sequestration, to preserve the oceans, so that they can play their critically important role in the cycle.

And ultimately just trying to provide some check on the otherwise unchecked impulse towards continual development without necessarily a consideration for whether or not that is sustainable.

Mariann Sullivan: Yeah, it is this unbelievably huge tool that exists. It's probably the best one we have, to my knowledge, to save the world. And, there are many, many different rationales for using it. So let's talk about the lawsuit, it took me a while to get here. It's a long intro, and we covered a lot of the issues, but who are you suing?

And it's just you, right? And you're just suing the Fish and Wildlife Service, is that right?

Ryan Shannon: I should also note, it's the elongated gland spring snail. The ahuang rock snail is already extinct. The elongated gland spring snail is the one at issue in our suit that we're worried may be going extinct, so apologies on the confusion.

Mariann Sullivan: That for some reason does make me incredibly sad, even though I have no idea what the oblong rock snail is. I've mentioned it. It came into my consciousness and now I know it doesn't exist anymore.

That's a sad note.

Ryan Shannon: I'm sorry.

Mariann Sullivan: No, that's all right. That's all right.

It kind of brings it all home.

Ryan Shannon: Being a downer on your Monday morning. Um.

Mariann Sullivan: Let's get down to the lawsuit. Who are you suing?

Ryan Shannon: We are suing the Secretary of the Department of Interior, who, like I said, has ultimate authority over the Endangered Species Act, broadly speaking for terrestrial species. And then the Director of the U. S. Fish and Wildlife Service and the U. S. Fish and Wildlife Service, who the Secretary has delegated administration of the Endangered Species Act to.

Mariann Sullivan: We talked about the fact that you have a cause of action through the citizen supervision. So I think we covered that unless you have something to add, but you also obviously need constitutional standing, and you have two bases here, right? Can you summarize your standing positions?

Ryan Shannon: Yeah, this is a good lesson for law school students because I think if you go out and you look at the standing case law, it can get a little murky.

Mariann Sullivan: Ah, Ahh, really!?

Ryan Shannon: Well it just shows the Importance of being very clear with your terms. So, as an organization, the center can have standing, broadly speaking, in two ways. One is associational standing.

I think this is the standing that most of us are familiar with, both in the Endangered Species Act and environmental law in general, which is where the center represents the interests of its members. And then you basically look at the members and ask, like, do they have Article 3 standing? If they do, and the suit is germane to the organization's purpose, and that the individual's participation ultimately isn't necessary, then the organization can represent that individual on their behalf.

So one of the ways that we show standing is through this associational standing, where we have individual members that are interested in the species that are still at issue in our suit because they care about them. They like to go out and look for them in the wild. They take joy in being in their habitat, in seeing them in their natural habitat, have plans to return to continue viewing them, and who would be harmed, if they were no longer there.

If they were to go extinct and who are harmed by the Service's f ailure to take action and their delay in listing these species and providing the protections they need. Because like we've already talked about, the longer the service waits, the harder path it will be to recovery and the longer a path it will be to recovery.

You know, I mean the sad truth of it is, a lot of these declarations are our stories about individuals going out trying to see these species and failing, because they are so rare now that it's not a guarantee that even if you go to the one national forest where it still resides, that you're going to see it, because their numbers are so low. But if they were listed, maybe they could recover, to the point where it would be much easier to see them and enjoy them in their natural habitats.

So that's associational standing. We have that for the vast, vast, vast majority of the species at issue in our suit. We also have a second theory called organizational standing, and this is where sometimes courts accidentally call associational standing organizational standing or vice versa, but organizational standing is where the organization itself is harmed by, well, in this case, the agency's inaction, but somebody's inaction such that they themselves are injured. It was caused by the agency's action or inaction and the court can do something about it.

This was, first, kind of established by the Supreme Court in a case called Havens Realty that dealt with an organization that sought to address discrimination in housing and who was having to expend resources to combat the ongoing discrimination in local apartment complexes.

And the Supreme Court found that because they were expending resources to fight this harm that they themselves had standing to bring the suit. And the same is true, we think, for us in this case. You know, the Center for Biological Diversity, I think it's easy to say that we submit more petitions to list species under the Endangered Species Act than any other person or entity nowadays.

The service's delay in responding to those petitions harms the center. Not only does it fundamentally undermine our purpose to protect species because the primary way we do so is by getting them listed as endangered and threatened under the Endangered Species Act so that they have the protections that are attendant to that.

But it also harms us because it forces us to expend resources continuing to monitor the species that we petitioned for, and for which findings should have been made, for years and years and years. We have to go out and continue to make sure that they're there, that there aren't any new threats facing them.

For instance, there was a species at issue in the suit, the Dixie Valley Toad, which we ultimately settled because service agreed to take very, very prompt action to protect it under the Act because it was threatened by the imminent development of a thermal plant that was going to tap the hot spring, the only location where the species is found.

And, you know, if that geothermal plant had come online, it likely would have meant the relatively immediate extinction of the species. So, us having to continue to monitor those species and then take action to keep the service updated or to bring imminent threats to their attention means that we don't have the... you know, we are an organization of finite resources.

It's taking away from our time and resources to protect the other thousands or millions of species, that needed to submit new listing petitions, and do the work required to protect those species that are not yet petitioned, and which do not yet have the protections of the Endangered Species Act.

Mariann Sullivan: So, you have these two bases for standing. From my understanding, they have not, to date, been challenged, but there was a motion to dismiss on statute of limitations, is that right?

Ryan Shannon: Yes, we filed this suit in 2020, and we sued over all of the overdue findings. At that time, there were 241 of them. And, for the law students out there, under the Endangered Species Act, there isn't a specific statute of limitations within the Act, so the general statute of limitations applies, which generally says that six years after an action takes place, you're barred from bringing suit by the statute of limitations.

So they argued that a large chunk of the petitions at issue in the suit were barred by the statute of limitations because they had been petitioned for over, really seven years ago, because the violation would have been the failure to make a 12 month finding, which would have been a year after the petition was submitted.

So that violation, they argued, started the six year statute of limitations tolling, and because we were outside of that six year mark, we couldn't bring suit. We successfully defeated that motion to dismiss, and the court found effectively that because what we were suing over was the agency's failure to act, their failure to take action in response to the listing petitions, essentially the statute of limitations has never begun to run.

That unlike some discreet agency action, like say the issuance of a clean water permit, or even if we were filing over the merits of an ultimate listing decision, those kind of things would be told by the six year statute of limitations because you're actually looking at an agency action and something that they have done. But here where we were complaining about what the agency has failed to do, the statute of limitations didn't apply and our suit could proceed to, well, I would say the merits, but in reality, the only remaining questions are whether we have standing and what the court's going to do about it.

Because the service doesn't contest the merits, you know, all of these dates have passed. They can't deny that the petitions were submitted. They can't deny that the dates have passed. So the actual like underlying liability of the suit, the merits of this suit, aren't really at issue in this case.

Mariann Sullivan: Yeah, and actually, I feel like I didn't ask you the most important question, which is my fault. And people probably picked it up from the way you were talking about it, but we're getting into details without asking. Can you just tell us the causes of action and the overall kinds of relief that you're seeking here, because I somehow managed to skip over the whole centerpiece of the interview, and get into details, but what's this lawsuit about?

And I also want to ask, I know some of it got settled and some of it didn't, and this is the part that didn't get settled. So, can you just go into that whole thing? And what is the whole gravamen of the lawsuit?

Ryan Shannon: So, ultimately, this suit is about the service's failure to abide by the deadline set forth in the Endangered Species Act to respond to listing petitions. As we discussed earlier, these are strict, mandatory deadlines that are set forth in the Act. And they were placed there because Congress recognized that time was of the essence.

That these species were either in danger of extinction, or likely to be in danger of extinction in the foreseeable future. And that the services needed to take prompt action to halt their decline and put them on the path to recovery. So ultimately, the suit is about the services failure to adhere to those deadlines and their long standing systemic delay in responding to listing petitions.

The specific amounts of delay for the 241 species that were originally at issue at this suit varies from anywhere, I think, at the time of filing from like, 18 months to several decades. And the average species often waits about nine years after petition before the services finally make a listing decision on it.

So the suit was filed in the hope that the service would address the specific violations at issue in the suit for the 241 species at issue, all of the overdue findings at the time. But in doing so, take a look at its listing program and find efficiencies, find a way to actually meet the Act's deadlines to make final listing decisions within two years, and really strip out a lot of the politics and the bureaucratic creep that has infiltrated the system, that has led to these delays. That was and is the hope of the suit, generally speaking.

Mariann Sullivan: So you want them to address these specific species? Is the 241 everything that was, pending? Or did you pick and choose particularly egregious or particularly old ones or particularly dire situations?

Ryan Shannon: I'll say it's everything that was pending that we knew of and had tracked. I won't guarantee that maybe we didn't miss one or two, but it was everything that was pending.

Mariann Sullivan: So you want them to address both the individual cases, but then fix the problem, fix the big problem of why this keeps happening over and over and over again, and why it has to be litigated over and over and over again, and do something. You did manage to whittle down that 241 species, right? In mediation?

Ryan Shannon: Yes, and here I have to be a little careful not to talk about confidential mediation discussions, but we were able to settle our claims as to a subset of species, such that there are 89 still at issue. In essence, the service proposed dates for addressing the findings for those species that we thought were reasonable.

If we could wave a magic wand, of course, we would like the service to take action on all of these today. But that being said, they do require work. They require a status report. They require the service to develop a finding. We understand that that doesn't take place overnight. But they agreed upon dates we thought were good enough to push the service to make the findings acceptably soon.

Mariann Sullivan: So you mentioned that there isn't any dispute that they have failed to comply with the statute's timing provisions, and their papers haven't been filed yet on the motion, as far as I know. But I haven't seen them.

Ryan Shannon: They did admit basically that there wasn't a dispute as to the merits in other documents.

In their motion to dismiss and a couple of other things that have been filed with the courts. Yes.

Mariann Sullivan: So it's all a matter of relief.

Ryan Shannon: It's all a matter of relief, yeah, and standing.

Mariann Sullivan: So let's talk about what you do disagree on. What do you want them to do vis a vis the species that you haven't come to some understanding about timing?

Do you have certain timing that they should publish these 12 month findings, which I guess have not yet been published?

Ryan Shannon: What we have asked the court to order the agency to do is to make the overdue 12 month findings for the 89 species still at issue in the suit within a year, which is in line with the Act's requirement. We thought about what are we going to ask the court to do? And I think the answer, in some respects, was quite simple, and it was like, the court should order the agency to do what the Act tells them to do, which is to make these findings in 12 months. Now the reality of it is, for many of these species, the findings are going to come decades after they were due, even if the court orders them to do all of these findings in 12 months. So in reality, the agency has had far longer than the Act contemplates to make these findings.

But I do think if the court were to order them to make these findings within a year, it would send the right message to the service that it cannot continue to operate under what it believes the status quo to be. Which is that it will disregard the mandatory deadlines. It will blow past the mandatory deadlines enacted by Congress, it will wait to get sued by an organization like the center or by the center, and then it will go into court and say, we understand that we haven't adhered to the acts deadlines, but we're telling you that the best we can do is to make that finding within three years, four years, five years, and you shouldn't order us to do anything better because we are doing the best we can. I think that what an order requiring them to make these 89 findings within a year will do is say, I understand that you've been saying that you are doing what you allege is the best you can, but we think you can do better. We think that you can find efficiencies within your system and make these findings, hopefully in line with the Act's actual statutory timeline.

You can look at the declarations that the service has filed in previous deadline suits and what is in them is, here's our budget, here's the actions that we've taken this year, here's when we think we can get to this finding given our resources. What isn't in them is, we understand that we're not meeting these statutory deadlines.

Here is the audit that we conducted on our system, and here are the efficiencies that we found, and here's our plan for coming into compliance with the Act. That's what we hope this will encourage, for them to take a step back and say, you know, is this the best that we can do? Are there efficiencies that we can find in this system?

Because from an outsider's perspective, there has to be. You look at the levels of review that they detail in their declarations in these cases, and it is Kafkaesque, you know, there are numerous levels of review. It goes up the chain, it goes down the chain, it goes up the chain, it goes down the chain, and it results in an incredibly bloated process.

And one that I think that, you know, if you took it to the private sector and had any kind of audit or consultant come in, they would take... this isn't a matter of taking a scalpel and trimming around the edges. They would take a hatchet to it. I mean, it might be at the point where they just kind of have to start from scratch and figure out a new process that allows them to, if not meet the ACT deadlines, come much, much, much, much closer than they are.

Mariann Sullivan: And they have come closer in the past, right? I mean, this is a problem that has developed. In the past, they were able to make much faster decisions. And one of the points you made in your papers, I think, is that the science that they're looking for is unrealistic.

You have to kind of go with the science that is available.

Ryan Shannon: Yeah, so the ACT is clear that listing decisions are to be based solely on the best available science. And the case law is quite clear that that doesn't mean perfect science. Congress basically made a judgment call that perfection shouldn't be the enemy of the good. And that if all of the available science shows that a species is threatened or endangered, then you should list it today based on that science.

It doesn't matter that there's some PhD student that in three years is going to have done a new population viability analysis and might have a better understanding of the species condition in three years. If all of the data that you have today suggests that the species is on a path towards extinction, then the agency should act now based on that science rather than sending it back to committees and continuing to study it as the species continues to decline.

Mariann Sullivan: So the relief you're asking for, in addition to attending to the pending petitions, is this declaratory relief. What should the court look at in deciding whether to grant a declaratory judgment here and, and what do you want them to declare?

Ryan Shannon: I think what the court can look at is the decades of litigation that have led us to this point and the decades of litigation that have actually been in front of this judge. The last large deadline litigation that the center was involved with in the 2010s was in front of the same judge, and he lamented the then broken system.

And so what we want him to declare is that the service has not been making these findings in line with the statutory deadlines and that they have to do something to come into compliance with the act, to take some action to come into compliance.

Mariann Sullivan: And can the court enforce that judgment? Like, how does this actually work?

It just seems like the service just feels free to kind of ignore the need to do this. And the courts don't seem to be going along with it, there's been criticism from the courts.

But alright, so the court declares this. How does that make the government do it?

Ryan Shannon: I think that that is where the injunctive relief comes in. That's the hard and fast deadlines that are enforceable by the court to make the findings at issue in this suit, within that year deadline. I think the declaratory relief is more to set a flag and say that, you know, the court isn't going to continue to tolerate the service's new status quo that I mentioned before, where they blow past these deadlines and then they come in and say, well, you really should only order us to make the finding by this date, which we're proposing to you because that's the best we can do. Basically a check on that and to say, I'm not going to take your word for it anymore.

You know, you are going to have to come and show me, specifically, why you can't make this finding by an earlier date, what steps you've taken to reform this program, to find efficiencies, and to try to come into compliance with the Act. But I'll also say, I think that this issue is one of the frustrations of working within our judicial system in that, courts only decide cases and controversies that are in front of them.

They don't issue advisory opinions and they don't adjudicate future violations, broadly speaking. And the most frustrating thing is that courts most common refrain is if that's the relief you're looking for, go to Congress, go to the executive branch. Those are the areas where you're supposed to find that programmatic reform.

And it can be incredibly frustrating in situations like ours where we're like, we did that, and Congress amended the Act explicitly to address what they call the foot dragging efforts of a delinquent agency. And now the agency is still delinquent. And so I think we're asking the court basically to call them to task and to say, I'm not going to allow you to continue treating this mandatory duty like a discretionary one.

Mariann Sullivan: I know that within animal law, it's even more frustrating than environmental law, I think, because at least you have a good law here. Like, at some point, Congress did pass a good law, and still. And, you know, the courts are kind of the only remaining functioning part of government, not to get political or anything, but, still, to just say, go back to Congress, that's just...

like, it's crazy. You have a good law here, and it needs to be enforced, and I hope that this case will be, you know, a wake up call, because we can't wait any longer, can we?

Ryan Shannon: We can't wait any longer. We are in the midst of an ongoing extinction crisis and it's a crisis that will only get worse with climate change. And unfortunately, both with acting to list species and with climate change, it appears that many are content with kicking the can down the road, or at least pretending to act like we are under the same status quo that we were 40 years ago, or 50 years ago, and that's just not the case.

Mariann Sullivan: Though 50 years ago, we actually were managing to pass better laws.

Ryan Shannon: Yeah, Richard Nixon, you know, our best environmental president, who knew?

Mariann Sullivan: Yeah. Kind of shocking. Thank you so much. You have really been a model of clarity. I understand much, much more than I did before and I've kept you for a long time, but from my point of view, it's really been worth it. This is really, really interesting stuff. I wish you a lot of luck with it.

And your standing argument is still, I meant to go back to that. Your standing argument is, is it not resolved?

Ryan Shannon: It is now resolved. So, we filed our opening motion for summary judgment on November 3rd, the government's opposition, cross motion is due on December 18th, I believe, if memory serves correct. And briefing should be wrapped up in March, and then it will be, waiting for the judge's resolution.

So, hopefully, uh, we'll have something more to say on this, this spring or summer. Hopefully we're not waiting too long for the judge to rule, but we will see.

Mariann Sullivan: Fascinating case, thank you so much for sharing it with us today.

Ryan Shannon: Yeah, thank you for having me.

Mariann Sullivan: Was there anything that I didn't ask you that I... I promised you in the beginning that I would make sure that there, I hadn't skipped over anything.

Ryan Shannon: I don't think that we've necessarily skipped over... I'd be happy to come back. if and when we hopefully

Mariann Sullivan: when you win it.

Ryan Shannon: win and get an order, you know,

Mariann Sullivan: I try to interview people either after they've won it or before it's decided, but after losing, it's just a depressing interview.

Ryan Shannon: That's true. Yeah. if I lose, I'll just keep my tail between my legs and maybe avoid a second interview. Yeah,

Mariann Sullivan: I have high hopes for it. Thanks so much, Ryan.

Ryan Shannon: Me too. Thank you. Thanks for having me.