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Endangered Species Lawsuits

An analysis of endangered species lawsuits in a recent article by Marco Restani and John Marzluff (“Funding Extinction? Biological Needs and Political Realities in the Allocation of Resources to Endangered Species Recovery,” BioScience 52: 169–177) was based on faulty methodology. The authors analyzed 109 lawsuits filed between 1990 and 1999, finding that nearly half involved just three species (spotted owls, sea turtles, and grizzly bears). They concluded that litigation is disproportionately focused on species that are lower priority, charismatic, wide-ranging, and subject to economic conflicts. The lawsuit sample was obtained from Lexis-Nexis, a commercial legal database containing rulings by the Supreme Court, appellate court rulings, published rulings from lower courts, and other rulings deemed significant by the staff of LexisNexis. It excludes the majority of filed lawsuits, however, by not containing stipulated settlement agreements or most unpublished lower court rulings.As an attorney who regularly litigates these cases, I can say with authority that this is how a majority of litigation ends, rather than in published opinions. These limitations result in Lexis-Nexis containing a biased sample set. Because cases involving wide-ranging, highprofile species threatened by prevalent economic activities (e.g., spotted owls and sea turtles) are more often contentious, less likely to settle, and more likely to be published as a result of public interest or appeal, they are more likely to be included in Lexis-Nexis than cases involving narrowly endemic species not affected by prominent economic activities. A more complete survey, while of course being more difficult to obtain, would be needed to remove this bias and would reveal a broader array of endangered species. As a key example, I represented environmental groups in a suit that resulted in an unpublished consent decree leading to listing actions on 25 species, the vast majority of which are endemic plants, invertebrates, amphibians, and fish. This would not have been revealed in the authors’ survey.