Data Quality Challenge Helps Bump Species from Consideration for Endangered List

On March 31, 2003 the U.S. Fish and Wildlife Service (FWS) of the Department of the Interior received a data quality petition from Terry Bashore of the U.S. Air Force challenging information concerning FWS' proposed rule to list slickspot peppergrass as an endangered species. The challenge clearly contributed to the FWS' decision to withdraw its proposal to recognize and protect the plant as an endangered species. Slickspot peppergrass is a flowering plant unique to Idaho. It appears there is no specific purpose or use for the plant, simply that it is a rare flower that is being threatened with extinction by non-native weeds caused by livestock trampling and grazing, road construction and off road vehicles. The grass grows in "slickspots," which are small areas within larger sagebrush habitat. The total area of sagebrush steppe habitat containing occurrences of slickspot peppergrass is about 20,500 acres. Not all of this area is slickspot peppergrass -- just small areas within it. Of that area, 91 percent is federal land managed by the Bureau of Land Management (BLM) and U.S. Air Force (USAF); 3 percent is private land; 6 percent is state land. In 1999 FWS determined that the rare plant was a candidate for the endangered species list but took no additional action. Western Watersheds Project and the Committee for the High Desert filed a Nov., 2001 lawsuit for the agency's failure to list the plant under the Endangered Species Act and a federal-court settlement required the FWS to make a final decision by July 15, 2003. On July 15, 2002 (a year earlier) FWS published a proposal to list the plant on the endangered species list. During consideration of the proposed rule FWS provided two public comment periods for a total of four months which ended in Nov., 2002 and held two public hearings . In the proposed rule to list the plant FWS asserted that the rate of disappearance of slickspot peppergrass is "the highest known of any Idaho rare plant species." Request for Correction Bashore, Chief Ecologist and Range Liaison at Langley Air Force Base in Virginia, asserted in the data quality challenge that there was a lack of scientific evidence to support the claims, as well as a lack of scientific peer review for the support research. However, Western Watersheds Project reports that Jeff Foss, supervisor of FWS' Snake River Basin Office in Idaho, stated that five peer reviewers supported the "sufficiency and accuracy" of the science and the listing of slickspot peppergrass as endangered. The Air Force petition also claimed that FWS used inaccurate, confusing and misleading presentation of arguments for listing the species. Additionally, Bashore's challenge raised questions about the taxonomy of the plant species and the sufficiency of the population surveys. Interestingly, the Air Force is an affected party in this matter because apparently training operations at Mountain Home Air Force Base in Idaho would be severely affected if slickspot peppergrass were listed under the ESA. The request was filed four moths after the second comment period for the proposed rule closed. It is not clear what new information the Air Force had that it couldn't submit during the two public comment periods or at either of the two public hearings. Agency Response On July 10, FWS sent Bashore a response to his challenge, notifying him that the date of resolution for the rule would be extended. Shortly thereafter, on July 18, three days after the court appointed deadline, FWS announced a six-month extension to the final rule and a third public comment period. FWS asserts this was not just in response to the data quality challenge but because "substantial disagreement regarding the sufficiency and interpretation of the available data" existed. However, FWS clearly acknowledges in Frequently Asked Questions About Slickspot Peppergrass" that the additional scientific input from the Air Force prompted the re-review. Appeal The Air Force submitted a request for reconsideration on August 1 claiming that the extension of the rule and reopening of the public comment period did not "correct" the FWS Notice to List the species as endangered. Apparently additional subsequent communications occurred between the FWS and the Air Force on the matter of the data quality appeal. However, it is unclear what information was exchanged during these communications. Agency Response to Appeal On Sept. 3, FWS notified the Air Force that no direct action would be taken on their appeal and that reopening the comment process was an adequate response to their challenge, as it would enable comments regarding data quality to be considered. The Service also noted that a response would be provided in the final rule. However, there was no final rule. Instead, on Jan. 22, 2004, FWS announced that it was withdrawing the rule to list slickspot peppergrass as an endangered species. The FWS cited the lack of strong evidence of the plant's decline and that conservation agreements, established during the most recent delay, would sufficiently protect the plant. No explanation was given for why the evidence had been strong enough to initially propose listing the plant as endangered or what exactly had changed besides the obviously biased objections of the Air Force. This is a case where a questionable policy may have allowed political pressure to endanger the very existence of a species. Environmental groups are concerned that conservation agreements, which do not have nearly the force of law as being listed as an endangered species, will not be adequate to protect the plant. Western Watersheds Project already reports that it expects to litigate over the FWS' decision to not list the species.
back to Blog