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Judge Orders Feds to Hand Over Mountain Plover Documents

Groups suspect political interference in denial of protection for the plover

San Diego, CA-A judge has ordered the U.S. Fish and Wildlife Service to produce documents which explain why the agency denied Endangered Species Act protection to the mountain plover, a bird whose population has declined by two-thirds over the past few decades.

The ruling this week is a victory for WildEarth Guardians (formerly WildEarth Guardians) and the Biodiversity Conservation Alliance, conservation groups who suspect that a disgraced former Bush appointee politically influenced the agency's decision to not list the plover. The groups are represented by Earthjustice.

FWS abruptly withdrew its proposal to list the plover in September 2003-just after Deputy Assistant Secretary of FWS Julie MacDonald reviewed the matter. She later resigned as evidence emerged about her political tampering with many other endangered species decisions.

Magistrate Judge Leo S. Papas ruled that FWS had failed to provide documents which explained the policy reversal and pointed to the potential involvement of MacDonald. The judge said:

"…evidence in the record indicates Julie MacDonald, who was a Deputy Assistant Secretary for FWS at the time of the plover decision, was involved in the decision to withdraw the proposed rule. Emails…indicate she reviewed the listing decision during the week of August 4-8, the same week the decision to withdraw the proposed rule was apparently made."

Political distortion of listing decisions-which are supposed to be scientific determinations-was a hallmark of MacDonald's actions while in the Interior Department from 2002 to 2007.

MacDonald resigned on May 1, 2007, a week prior to congressional hearings on the issue. Two months later, FWS acknowledged MacDonald's interference in eight species decisions, but federal legislators and conservationists criticized the agency for not disclosing MacDonald's role in other decisions to deny endangered species protection.

The agency admitted that MacDonald was involved in more than 200 endangered species decisions.

"Suffering substantial declines and facing mounting threats, the mountain plover deserves a place on the legal Ark the Endangered Species Act provides," stated Nicole Rosmarino of WildEarth Guardians. "MacDonald's participation is a good explanation for why an imperiled bird that was on track for federal protection was denied that protection."

Judge Papas chided the FWS for saying on three occasions it had released its complete record on the plover, despite conservation groups demonstrating that documents had been excluded. Papas wrote that agencies cannot "cherry pick information that supports a decision and fail to reveal information that contradicts it."

"FWS's failure to timely provide a complete administrative record smacks of bad faith," Papas said.

"This ruling will help us get to the heart of the matter and challenge the agency's failure to protect the highly imperiled plover," said Robin Cooley, Earthjustice attorney representing the groups. "We're happy the judge recognized the government's attempt to dodge full disclosure of exactly who was behind the sudden shift on this declining bird."

For more than 20 years, the agency had recognized that the bird was threatened with extinction. The plover is found primarily in shortgrass prairies of Rocky Mountain states and California's Imperial Valley. It faces escalating threats from oil, gas, and coalbed methane drilling in Wyoming and Montana.

"The last population of mountain plovers in Utah died out in the midst of oilfield development, and now this same type of development is being radically expanded across the intermountain range of the mountain plover," said Erik Molvar, a wildlife biologist with Biodiversity Conservation Alliance. "Yet even as the threats are escalating to historic highs, the federal agencies aren't protecting even the most sensitive nesting habitats from oil and gas drilling."

Prairie dog colonies provide important mountain plover breeding areas. WildEarth Guardians is currently in court against the Service trying to obtain ESA listing for the black-tailed prairie dog, given that the species has declined by 98-99% over the past century.

WildEarth Guardians, which has offices in Arizona, Colorado, and New Mexico, protects and restores wildlife, wild rivers and wild places in the American West. Biodiversity Conservation Alliance is based in Wyoming and protects wildlife and wild places in Wyoming and surrounding states, primarily on public lands. Earthjustice is a non-profit environmental defense law firm.

To obtain the decision and for other background documents, please contact Nicole Rosmarino at or 505-988-9126x1156.

Contact: Nicole J. Rosmarino, Ph.D., WildEarth Guardians, 505-988-9126x1156 Robin Cooley, Earthjustice, 303-996-9611 Erik Molvar, Wildlife Biologist, Biodiversity Conservation Alliance, 307-742-7978

As of January 28, 2008 WildEarth Guardians, Sinapu, and the Sagebrush Sea Campaign have joined forces to become WildEarth Guardians. With offices in Boulder, Denver, Phoenix, and Santa Fe, WildEarth Guardians protects and restores wildlife, wild places, and wild rivers in the American West.


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