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Act Still Prompts Debate by Les Blumenthal, Washington, D.C., Bureau Tri-City Herald, December 28, 2003

WASHINGTON -- Thirty years after President Nixon quietly signed it into law, the Endangered Species Act remains one of the nation's premier environmental statutes and one of its most controversial.

From the snail darter to the spotted owl to Pacific salmon, the law and its enforcement still sparks fierce confrontations between environmentalists and business interests that almost inevitably end up in court.

Repeated attempts to overhaul the law have been beaten back in Congress, though critics say they aren't about to give up trying.

The original sponsors of the act may not have foreseen the impact it would have.

At the time it was passed, the country was focused on the Watergate scandal, Nixon's possible impeachment and Vietnam. For environmentalists, the leading issue was the Alaska oil pipeline, not endangered species.

The Senate approved the measure 92-0, and the House 391-12.

"The whole thing was sort of ho-hum," recalled Brock Evans, a lobbyist for the Sierra Club at the time. "But it turned out to be a strong law with enormous implications."

In signing the bill on Dec. 28, 1973, Nixon issued a simple three-paragraph statement saying it would provide the federal government with the "needed authority to protect an irreplaceable part of our national heritage -- threatened wildlife."

"Nothing is more priceless and more worthy of protection than the rich array of animal life with which our country has been blessed," he said.

Though most of the attention in Washington state has focused on owls and salmon, 28 animal and 10 plant species are protected under the act. They range from the woodland caribou of the Selkirk Mountains in far Northeastern Washington, to the Columbia Basin pygmy rabbit in the sagebrush of Central Washington and the Oregon silverspot butterfly, found in salt spray marshes along the extreme edge of the Pacific Coast.

Most recently, a federal judge in Seattle ruled the Bush administration made a mistake when it decided not to list Puget Sound orcas for protection. The number of killer whales in the Sound has dropped from 97 in 1996 to 84 today. At one time, environmentalists believe more than 200 orcas prowled the inland waters.

The National Marine Fisheries Service, in deciding not to list the Puget Sound orcas, concluded there was only one species of orca worldwide.

The Puget Sound orcas are just one example of the continual conflicts surrounding the act. Critics of the law say environmentalists are misusing it to block logging, grazing and mining on federal lands and development and other activities on private lands. Environmentalists say they just want the law enforced as it was intended.

"The Endangered Species Act is a great tool to protect species. It is not an optional law," said Rodger Schlickheisen, president of the environmental group Defenders of Wildlife.

Federal courts have ruled in 68 cases that the administration had violated the law or tried to ignore it, the study said. The administration also has been quick to settle lawsuits from industry groups challenging the designation of critical habitat for a number of species.

In addition, this administration has listed only 25 species since taking office in 2001, all under court order, the study said. The Clinton administration added an average of 65 species per year, while the first Bush administration listed an average of 58 species annually.

The administration denounced the Defenders of Wildlife study as "utterly irresponsible" and a partisan attack filled with "factual errors and false statements" designed to raise money for the group.

But the administration also has made no secret of its support for changing the act and the way it is applied.

"It was and is an important law, but based on what I call '70s state-of-the-art public policy technology,' " Craig Manson, an assistant secretary of Interior, said in a recent speech.

The act has a "mixed to poor" record in helping troubled species and totally disregards the impact the listing of species and the designation of critical habitat has on people and their livelihoods, Manson said.

Regulatory agencies need more flexibility in how they apply the act and a "new era of cooperative conservation" is needed to help protect species and respect the needs of people, Manson said.

In the Northwest, the administration is conducting a "status review" of the listing of the spotted owl and the marbled murrelet, a reclusive seabird that, like the owl, nests in old-growth forests. Such reviews are required every five years under the Endangered Species Act.

But rather than conducting the reviews on its own, the Fish and Wildlife Service has hired two private companies, one of which has links to a major timber company.

"It's a myth the spotted owl is dependent on old-growth forests," said Chris West, vice president of the American Forest Resource Council, an industry group based in Portland, Ore.

Rather than logging, West said, the biggest threat to the spotted owl may be the barred owl, a species from the Midwest that is aggressively moving into the spotted owl's habitat.

Environmentalists say the review is just another example of an administration beholden to special interests.

"This administration is looking for any way to reduce protections on the national forests," said Bill Arthur, who heads the Seattle regional office of the Sierra Club.

Arthur also suggested the status review of the owl could backfire on the administration.

"The owl might be doing a lot worse than people expect," he said.

With banner runs of salmon again reported on the Columbia River, the administration also is in the midst of reviewing the status of listed salmon stocks in the Northwest. The administration launched the review as it prepares a new plan, or biological opinion, for saving the fish. A federal judge in Portland said the existing plan was inadequate and ordered a new one.

Environmentalists are as suspicious of the administration's handling of protected salmon as they are of the administration's status review of the spotted owl.

"They never engage in a frontal assault," Arthur said. "They are more insidious."

West of the American Forest Resource Council said environmentalists are quick to allege a conspiracy when it comes to the administration's actions.

"The administration is not as draconian as they would make you believe," he said.

Despite the almost endless disputes, lawmakers say protecting endangered species still has strong public support.

"Yes there is controversy, yes there is disagreement," said Rep. Norm Dicks, D-Wash., who as a congressional aide in 1973 helped write the act. "But these is still a fundamental desire to save these species."