Understanding the petition to list the Wilson’s phalarope

Mar 28, 2024 | Faculty

by Brigham Daniels and Beth Parker

Exposed sandy bottom of Great Salt Lake with large salt crystalsToday, a number of environmental groups filed a petition to the U.S. Fish & Wildlife Service asking the federal government to list Wilson’s phalarope as an endangered species under the Endangered Species Act

The purpose of this brief analysis is to explain the significance of the petition to policy makers and Utah’s public and to provide thoughts about the best approach for the state to take regarding the petition.

As the Fish & Wildlife Service considers the petition, the state will have opportunities to show that it is committed to conserving the species that rely on the Great Salt Lake, and that it has a viable plan to do so. Successfully demonstrating this could mean the Wilson’s phalarope is designated as a candidate species—a lower-priority listing than an endangered or threatened species that could result in less federal involvement in species protection. Ultimately, meaningful efforts to conserve the Wilson’s phalarope will also help protect the overall ecosystem of the Great Salt Lake—with profound positive impacts for the many other species that rely on it, as well as for our state’s communities and economy. 

What is an endangered species listing petition, and what is its significance?

There are two routes for a species to find itself on the Endangered Species List. First, the Fish & Wildlife Service (“FWS”) can determine, based on its own research, that a species is in fact imperiled and warrants listing. 16 U.S.C. § 1533(a). Second, FWS can determine that a listing is warranted based on information presented to the FWS in a petition to list a species from people or outside entities.

A listing decision matters because an imperiled plant or animal must be listed before the Endangered Species Act provides protection. If a species is not listed, it receives no protection under the Act. 

In one of our white papers, the University of Utah College of Law’s Great Salt Lake Project analyzed the wide variety of potential consequences of FWS’s decision to list a species that makes Great Salt Lake home for at least part of the year. We will not rehash all the consequences in the same detail here, but rather, just provide the high points.

Once a species is listed, the Endangered Species Act allows the federal government to levy fines against individuals and entities that harm listed species. 16 U.S.C. § 1538(a)(1) & 50 C.F.R. § 17.3 (2019). If harm to a species was not intentional, civil fines can be as much as $25,000 per violation. If harm was inflicted intentionally, fines can be as high as $50,000 per violation and may even warrant up to a year in prison. 16 U.S.C. § 1540. 

Additionally, once a species is listed, the federal government must adopt a wide range of obligations to protect listed species, including—at one end of the spectrum—the duty of all agencies to engage in consultations with the Fish & Wildlife Service to avoid and minimize harm to listed species, and—on the other end of the spectrum—a nearly absolute bar of government actions that would jeopardize the existence of a listed species. 16 U.S.C. § 1536. 

In short, listing of a species would unleash extensive regulation on all entities within the Great Salt Lake basin, may result in significant liability for violations of the Act, and would strip the State of Utah of some of the autonomy it has to chart the course for the future of Great Salt Lake. (We have discussed this point at some length elsewhere.) A petition to list a species is a first step on the road to listing.

What does the Endangered Species Act require when a petition is received?

When the Fish & Wildlife Service receives a petition to consider listing a species as threatened or endangered, the Endangered Species Act activates a process that includes strict timelines for FWS to act on the petition. The first hurdle FWS must clear is determining whether or not there is “substantial information” that the petitioned listing “may be warranted.” 16 U.S.C. § 1533(b)(3)(a). If not, the petition will be denied. If so, FWS will continue its evaluation of the petition. FWS will then have up to a year from the time of receiving the petition to determine whether or not listing the species is warranted. 16 U.S.C. § 1533(b)(3)(B).

While the Endangered Species Act provides very little leeway for FWS to miss the relevant deadline, quite commonly, FWS does. As a practical matter, petitioners (those filing petitions) often anticipate that FWS may not meet these statutory deadlines. Typically, FWS will fail to meet a deadline, and the petitioners will respond by filing a lawsuit to force FWS to act. It is important to note that a missed deadline by FWS should not be interpreted as an indication that the species in question will not ultimately be listed.

Once the Fish & Wildlife Service acts on the petition, its determination will take one of three forms. First, FWS may decide to list the species as either endangered (meaning the species “is in danger of extinction” 16 USC § 1532(6)) or threatened (meaning the species “is likely to become an endangered species within the foreseeable future” 16 USC § 1532(20)). Second, FWS may determine that the listing is not warranted. And third, FWS may determine that listing is warranted, but defer action due to the need to prioritize higher-priority listings, categorizing the species as “warranted but precluded” for the time being. 16 U.S.C. § 1533(b)(3)(B).

This last category of “warranted but precluded” is called a candidate species. Candidate listings can occur because FWS faces time and budget constraints. In this scenario, FWS will either need to list within a relatively short time period—generally a year or two—or it will eventually find itself in violation of the Act. Another possibility, however, is that FWS can opt to keep a species as a candidate species for an indefinite period of time, so long as it can reasonably rely on the efforts of others to restore the future of the candidate species. Again, assuming that FWS determines that a listing is warranted, the State of Utah ought to attempt to broker an agreement with FWS to take on meaningful and reliable commitments to facilitate preservation of Wilson’s phalarope and to keep it off the list.

Why would it make sense for the State of Utah to make an agreement with Fish & Wildlife Services to keep the phalarope off the endangered species list?

While it is foreseeable that Utah policymakers might view the petition to list Wilson’s phalarope as unhelpful or misguided, the reality of the situation is that since the petition has been filed with the FWS, the somewhat mechanical process described above will unfold. 

Because it is not within the control of the State of Utah to determine whether the existing body of science would justify a listing, the most meaningful thing the state can do to avoid a listing is to work toward a collaborative solution and prepare to broker an agreement with FWS that would require the state to take meaningful actions to save Wilson’s phalarope and that, in turn, the Service would agree to keep the bird off the Endangered Species List and instead determine that Wilson’s phalarope is only a candidate species. In order for the state to succeed in securing a candidate species designation, it would need to offer a viable plan that is backed by credible commitments to act. This is not a shifty strategy, but rather the kind of collaboration that the Fish & Wildlife actively solicits.

Interestingly, during the last legislative session, the State of Utah earmarked two million dollars to deal with endangered species petitions. It seems that the best use of this money would be to pursue a collaborative outcome if listing is warranted (rather than fighting the petition). The reason for this is that if the Fish & Wildlife Services deems Wilson’s phalarope is endangered, it is because Great Salt Lake is endangered. Wilson’s phalarope is one of many species that rely on the lake: It is a keystone ecosystem. 

It is likely that this is the first of many petitions the State of Utah could see focused on species reliant on Great Salt Lake. The way to stave off this petition—and future petitions—is to take more meaningful actions to save the lake. This is not said to belittle the many positive steps the state has taken to save the lake already. It is simply stating that the lake itself (i.e., its health and elevation) and the species that rely on it are the best barometers we have to determine whether our actions up to this point are sufficient. 

The state can look to other circumstances in which voluntary actions of states and others have secured agreements with the Fish & Wildlife Service to list a species as a candidate species. Perhaps the best example is one that the state knows well: the agreement entered into by the state and private actors to take concrete steps to save the Greater Sage Grouse. This agreement has not only kept this species off the Endangered Species List; it has worked and the bird’s population continues to grow. The State of Montana has used such a strategy to preserve an imperiled fish, the Arctic Grayling. Northeastern states and private actors have come to a collaborative agreement to save the New England Cottontail. 

Why Utahns should care about the fate of Wilson’s phalarope

In many ways, the citizen petition for listing the Wilson’s phalarope as an endangered species highlights the plight facing saline lakes throughout the western hemisphere. Terminal lakes like Great Salt Lake are struggling the world over. The source of those struggles is quite similar from place to place: It is often a problem of too much demand for the freshwater that feeds the terminal lakes. Similar to the situation in Utah, the demand on that water is most frequently attributed to agricultural and municipal purposes. As goes the lake, so goes the species reliant upon it.

Not only that: As goes the lake, so goes the fate of our communities. Because saving Wilson’s phalarope is tied to saving the lake, a resolution that does it is not just for the birds—it is also what is best for all of us who call this place home. Just as the phalarope’s migration pattern is inextricably linked to Great Salt Lake, so is the health and livelihood of our communities, our region, and our economy. 

What is Utah’s best strategy for the short term?

While the Great Salt Lake Commissioner has put forward a plan to save the lake, the Fish & Wildlife Service will need to be convinced that not only is our plan sufficient, but also that our resolve is firm. Putting aside the issue of whether or not the Commissioner’s current plan is sufficient, it seems unlikely that the state’s resolve currently is. The plan sets forth ambitious goals, but we have not passed legislative mandates or allocated resources to make sure the plan is implemented well into the future.

The petition to list Wilson’s phalarope will not be resolved in a day, or even a month. More likely, the process will roll on until one of the statutorily required time periods is violated and a lawsuit is brought. This gives the state some time to position itself to make the case to the Fish & Wildlife Service that its resolve is, in fact, firm enough. In the short term, the best way to demonstrate our resolve is through action. 

To show our resolve, the State of Utah  must make the most of our current winter snowpack. We have had an above-average year. The Great Salt Lake Commissioner has already made some vital headway in making sure that some of that water makes it to Great Salt Lake by securing the cooperation of reservoir managers to release some water before the snow melt would normally trigger those kinds of decisions. 

There are other ways the state can make substantial progress in the very short term. This might include taking substantial steps within its current budget to bring more water to the lake. The state could spend more of the money that currently sits on the accounts of the Great Salt Lake Enhancement Trust, a forty million dollar fund designed to get more water to the lake. It could firm up the regulations implementing H.B. 453 passed this session—a bill designed to protect Great Salt Lake from water users that use the lake’s water for evaporative mining when the lake’s level is low. It could take seriously the opportunity to secure water from agriculture through split-season leasing of water. It could also take up the challenge to make even greater progress through legislation in the 2025 legislative session or even in an interim special session. 

The state could also look to various partners to help it make substantial progress in saving the lake over the short term and to bring these stakeholders to the table. These partners include government entities at various levels. There are many things that can be done by state and local governments. Some of these are cities, towns and counties within the Great Salt Lake watershed that are already doing some of the work. Others are not. The state could look for help from the federal government, the charitable community, and private entities to save the lake, similar to the state’s role in working with The Church of Jesus Christ of Latter-day Saints to secure a gift of water rights.

Again, this is not just about bird species. Whether or not the citizens of Utah care for the plight of the Wilson’s phalarope is almost irrelevant. It is also not about whether filing the petition was a wise strategic move. Instead it is about what we do with the choices laid before us. The lake itself has impacts that reach far beyond those affecting the phalarope. 

We need clarity on this point: If we do not take the necessary steps to save Great Salt Lake, it is not just the phalarope that is in trouble; our way of life and the place we call home is also endangered.

Daniels is a professor of law at the University of Utah S.J. Quinney College of Law and director of the Wallace Stegner Center’s Great Salt Lake Project. Parker is a senior attorney and senior fellow at the University of Utah S.J. Quinney College of Law, Wallace Stegner Center’s Law and Policy Program and the law and policy lead for the Great Salt Lake Project.