Fish and Wildlife Service Issues “Warranted but Precluded” Finding for Monarch Butterfly

Troutman Pepper
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Troutman Pepper

In accordance with a settlement between the U.S. Fish and Wildlife Service (FWS) and the Center for Biological Diversity (CBD), the FWS was required to make an Endangered Species Act (ESA) listing determination for the monarch butterfly by December 15, 2020. On December 17, 2020, the FWS announced that it had determined that adding the monarch butterfly to the list of threatened and endangered species is “warranted but precluded” by higher-priority listing actions.

This decision follows an action taken by the FWS on December 31, 2014, to publish a 90-day finding that the petition for listing the monarch butterfly presented substantial scientific or commercial information indicating that listing may be warranted. The FWS initiated an in-depth status assessment in which it studied the global population of monarch butterflies, as well as populations in North America, where 90% of the world’s monarch population occurs. In March 2016, CBD and the Center for Food Safety (CFS) filed a complaint against the FWS for not issuing a finding on the petition within the statutory timeframe, and in July 2016, the parties entered into a stipulated settlement agreement to submit the 12-month finding to the Federal Register by June 30, 2019. In May 2019, the District Court for the District of Columbia granted an extension of that deadline to December 15, 2020.

In its finding, the FWS concluded that the primary threats to the monarch’s biological status are loss and degradation of habitat from conversion of grasslands to agriculture, widespread use of herbicides, deterioration and incompatible management of overwintering sites in California and Mexico, urban development, and drought, as well as effects of climate change and exposure to insecticides. The FWS further concluded that existing regulatory mechanisms are insufficient to protect the species from all threats. As a result of these factors, the eastern and western North American migratory monarch populations have faced a gradual decline over the last 20 years.

While recognizing these impacts and the resulting decline of the species, the FWS also noted the significant monarch conservation efforts that have been and continue to be implemented by various federal, state, tribal, and other programs. Given these positive steps, and in light of the need to address higher priority species, the FWS determined that it is precluded from listing the monarch butterfly at this time.

As a result of this decision, the monarch butterfly will become a candidate for listing under the ESA, and its status will be reviewed annually until it is no longer a candidate. Candidate species do not gain any special protections under the ESA. Deferring action on the listing also delays the FWS’ obligation to designate critical habitat for the monarch butterfly. The FWS has indicated that it will not be in a position to list the monarch butterfly until 2024, consistent with its Listing Work Plan.

The FWS’s finding was published in the Federal Register on December 17, 2020, and is certain to face challenges from environmental groups under the Administrative Procedure Act’s “arbitrary and capricious” standard.

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