San Francisco Baykeeper Claims FWS Delinquent in Protecting Dwindling Fish Species

The non-profit San Francisco Baykeeper has filed suit against the Acting Director of the U.S. Fish and Wildlife Service (FWS) and the Secretary of the Interior to challenge their ostensibly unlawful delay in providing Endangered Species Act (ESA) protection to the Longfin Smelt. Last week’s Northern District of California complaint emphasized that the smelt’s “San Francisco Bay-Delta distinct vertebrate population segment” is gravely threatened by habitat destruction.

Baykeeper self-described as an Oakland, California-based organization dedicated to “preserving, protecting, and defending the environment, wildlife, and natural resources of San Francisco Bay and its tributaries for the benefit of its ecosystems and communities.” According to the filing, its members have been harmed by the defendants’ reported delay because if the species goes extinct, members will no longer be able to observe and otherwise enjoy the fish in its natural habitat.

Baykeeper alleged that for the last five years, the FWS has planned on listing the smelt as either endangered or threatened. Purportedly due to higher priority tasks, however, the agency has now put off listing until financial year 2022, despite its preliminary finding that listing is warranted. The plaintiff added that, according to the FWS, “expeditious progress is being made by the Service to add or remove species from the endangered and threatened species lists.”

Baykeeper took issue with both the smelt’s de-prioritization and the FWS’s claim about its species listing progress. The filing asserted that the smelt’s distinct population is “on the brink of extinction,” and direly needs protection. Its extirpation will allegedly occur due to “the powerful entities and interests that are diverting and diminishing the Smelt’s aquatic habitat,” absent that intervention.

As to the FWS’s claim about its progress, the plaintiff argued that for “the rate of all species-specific listing actions, the number of actions between 2017 and 2020 dramatically declined by over 77 percent,” leading Baykeeper to conclude that “[s]lower progress is not expeditious progress.” 

The complaint seeks declaratory and injunctive relief compelling the agency to immediately act on proposed and final rules for the species. Baykeeper also seeks its attorneys’ fees and other relief the court deems appropriate.

Since the Biden Administration’s transition to power, the FWS has received numerous complaints over its slow listing progress for 10 species awaiting protection, decisions to down-list a beetle species, de-list grey wolves, and designate critical habitat and create a recovery plan for an endangered Hawaiian bird.

Baykeeper is represented by Lozeau Drury LLP and its own counsel.