A June 1, 2019, photo provided by the Center for Biological Diversity shows Tiehm's buckwheat blooming at Rhyolite Ridge in the Silver Peak Range of western Nevada. (Photo: Patrick Donnelly/Center for Biological Diversity via AP, file)
By Scott Sonner Associated Press
Tuesday, May 4, 2021
RENO — The Biden administration says a U.S. judge exceeded his authority when he gave federal wildlife officials a May 21 deadline to decide whether to formally propose endangered species protections for a rare desert wildflower at the center of a fight over a proposed lithium mine in Nevada.
Lawyers for the Interior Department filed an emergency request in U.S. District Court in Las Vegas last week asking Judge James Mahan to reconsider his order regarding the fate of the only Tiehm's buckwheat plants known to exist in the world — about 220 miles southeast of Reno.
The department says the U.S. Fish and Wildlife Service intends to comply with the order to reach a finding by May 21 on whether the flower should receive protections under the Endangered Species Act.
But it says it will be impossible to decide by then whether to designate critical habitat that conservationists want for the plant in an area where Australian mining company Ioneer Ltd. wants to dig for lithium and boron.
The judge Friday granted the government's request to block his order until he can rule on the merits of the arguments. Mahan ordered the Center for Biological Diversity, which sued over the plant, to respond by Tuesday and the government to reply by Thursday. He expects to issue a formal ruling on May 17.
The Fish and Wildlife Service was supposed to decide last October whether to list the plant as endangered. It had said staff and budget constraints would prevent it from deciding until Sept. 30, 2021. Environmentalists first petitioned for the listing in 2019.
Mahan said in his April 21 ruling that "more than enough time has passed" to complete the required yearlong review.
"By its own admission, FWS has violated the ESA by failing to issue a timely 12-month finding as to whether it intends to list Tiehm's buckwheat as an endangered species," he wrote. "This court finds no reason to grant additional time for FWS to make its admittedly overdue finding."
Patrick Donnelly, the Center for Biological Diversity's Nevada director, said the government's emergency motion is its latest attempt to stall while it tries to reach a conservation agreement with Ioneer. He said wildlife officials are "spending more energy fighting our litigation than they are protecting" the plant.
"They have the gall to claim that their appeal of a ruling they consider unfavorable constitutes an emergency, while Tiehm's buckwheat is out here hanging by a thread, with Ioneer's destructive mine looming over it," he said.
Government lawyers said in the emergency motion last week that Mahan's order requires the Fish and Wildlife Service to effectively skip a step in the listing process — the completion of a 12-month finding — and immediately proceed to another step — proposed rules — without first determining whether it's warranted.
"Not only does this put the cart before the horse, but it also constrains FWS's discretion to only one substantive outcome at the 12-month finding stage — i.e., listing is warranted," the motion says.
Government attorneys said that while it is possible the Fish and Wildlife Service may ultimately reach that outcome "based on its review of the best available science," the Endangered Species Act "provides for three possible outcomes" after the yearlong review and gives the agency the power to make that choice "based on its own expert judgment."
