KMAX: News of the West

Fish and Wildlife Service to review delta smelt status, judge ruled

By BRIAN SKOLOFF
Associated Press Writer

FRESNO, Calif. (AP) A federal judge has accepted an agreement ending a lawsuit that alleged the U.S. Fish and Wildlife Service violated the Endangered Species Act by failing to regularly review the status of the threatened delta smelt.

The judge accepted the agreement June 13, effectively handing a victory to the California Farm Bureau Federation, the plaintiff in the case, farm bureau spokesman Chris Nance said Wednesday.

The lawsuit, filed Nov. 22 in Washington, D.C., claimed the service had not performed a required five-year status review of the delta smelt a tiny fish classified as threatened in 1993 ``in order to determine whether a change in listing status is warranted.''

Under the Endangered Species Act, the service must conduct regular reviews of threatened and endangered species. The lawsuit said the delta smelt's listing is currently ``unsupported by substantial evidence.''

``All we wanted was to make sure the ESA was working for the delta smelt,'' farm bureau attorney Ronda Azevedo Lucas said Wednesday. ``We believed the prospects for recovery of the delta smelt could be improved if the service utilized new science ... Above all, we wanted the act to be implemented as Congress envisioned.''

The Fish and Wildlife Service has agreed to begin a status review of the delta smelt within 60 days of the judge's ruling and to complete the process by March 1, 2004.

Patricia Foulk, a spokeswoman for the service's Sacramento office, said a review might have been done within the five-year window if not for a multitude of lawsuits.

``Frankly, almost all of our workload for the last several years has been driven by litigation ... and as a result we don't have the option of doing other work that we know needs to be done,'' Foulk said. ``The big losers in all of this are the threatened and endangered species in California.''

The delta smelt's threatened listing has been a point of contention with farmers, who claim conservation efforts to protect the fish have limited water supplies.

The Westlands Water District and the San Luis & Delta-Mendota Water Authority filed a lawsuit in U.S. District Court at Fresno the same month the farm bureau filed its suit, alleging the fish was no longer a threatened species and should be taken off the list.

The Natural Resources Defense Council, Earthjustice and other environmental groups have asked to intervene in that case, claiming the species still needs full protection.

While the farm bureau's lawsuit did not ask that the fish be de-listed, bureau officials have said they believe the species has recovered.

``We have met the recovery criteria that the U.S. Fish and Wildlife Service set forth for the last five years and in light of that, this fish should be de-listed,'' Lucas was quoted as saying in a November 2002 story posted on the farm bureau's web site.

On Wednesday, Lucas stressed that the bureau simply wants the Fish and Wildlife Service to follow the law, regardless of the outcome of the status review.

``When decisions are made about species ... we want them to be based on unbiased, thorough evaluations of best available scientific data,'' Lucas said. ``But according to the (Endangered Species Act), when a species is recovered, you de-list.''

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