What really happened to the 1999 petition to downlist the Sulaiman markhor? The USFWS has been withholding the information, so we went after it.
On October 10, the Federal District Court in the District of Columbia granted Conservation Force’s motion for summary judgment in an important FOIA suit. In the Markhor I suit, Conservation Force, et al. sued to compel the USFWS to make a 12-month finding on the IUCN’s petition to downlist the Sulaiman markhor in Pakistan. The USFWS never produced the Administrative Record in that litigation. Instead, it filed a motion that the time limits to enforce that petition had passed six years after the mandatory deadline for the USFWS to make the 12-month finding. We appealed that lower court decision, but by the time the appellate court reached the case, we had successfully filed another, second downlisting petition and the USFWS had made a positive 12-month finding and proposal to downlist those markhor. Because of that the appellate court ruled that the appeal was moot and no Administrative Record was produced in that litigation.
We thought it suspect that the Record was never produced, so we filed a FOIA request for the Administrative Record independently of the litigation. The USFWS at first ignored the request, then after multiple written warnings of a suit, USFWS promised the Record but still did not produce it. After more letters threatening suit, we sued the USFWS to produce the Administrative Record of the first downlisting petition. In response, the USFWS finally produced a part of the Record. The response was only the Record up to the 90-day determination and not what followed. There was no explanation whatsoever why the USFWS never made a 12-month finding, no copy of the comments that followed the 90-day published notice calling for comments or anything as to the next 12 months.
The USFWS claimed it did not have to produce anything past the positive 90-day finding and that most of the information was attorney client privilege. We in turn argued that unlawful conduct and fraud is never privileged. The Court ruled in favor of Conservation Force and reasoned that the USFWS’s own rules provided the definition of an Administrative Record and that expressly included the documents of the 12-month period following the 90-day notice. The Court ordered that the USFWS conduct a search for those records requested for the 1999 downlisting petition and produce them before January 3, 2014. We hope to uncover why the USFWS did not act on the first petition (1999) to downlist for approximately a decade. That in turn should provide insight to other, similar delays during the same decade of promises without action. How can USFWS be kept responsible and accountable if they can just say “trust me, we are on it” for a decade then make no explanation when they fail to act?
In other markhor action, the government shutdown has delayed the publication of the broadened downlisting proposal for the Sulaiman markhor growing out of the Markhor III litigation over the second downlisting petition.
Meanwhile, the dismissal of the Markhor II suit over the permit denials has been stayed in the Appellate Court until January while we try mediation to resolve the permit denials. The USFWS has proposed the downlisting itself for reasons that contradict the permit denials. We hope USFWS will take into greater consideration the benefits that the markhor are losing during the delay of the downlisting that will also ultimately make import permitting unnecessary.