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Experts Debate Barriers to Species Delisting;
Bureaucracy, Litigation Cited as Obstacles

by Mateusz Perkowski
Capital Press, May 6, 2016

(Darin Oswald photo) Lonesome Larry was the only sockeye salmon to make it to Idaho's Redfish Lake to spawn in 1992. His sperm was used to preserve a strain of the salmon that was on the edge of extinction. Whether the Endangered Species Act has effectively improved the fortunes of imperiled wildlife and plants is a matter of interpretation.

Critics of the ESA's implementation point to the fact that only 63 species have ever been removed from the federal list of threatened and endangered species, which currently has 2,258 international entries.

Of the species no longer on the list, 10 have gone extinct, 19 were listed erroneously and 34 have sufficiently recovered.

Experts recently testifying before Congress offered several reasons so few species ever make it off the list.

Rob Thornton, an attorney involved in ESA litigation, largely laid the blame on bureaucracy.

Each species that's listed develops a "constituency" that actively opposes its removal, he said during an April 20 hearing before the House Committee on Oversight and Government Reform.

Federal officials are also reluctant to delist species because it diminishes their regulatory domain, Thornton said.

"Frankly, the Endangered Species Act provides a lot of regulatory authority and power to the Fish and Wildlife Service, so the natural human inclination of the regulator is to retain that authority," he said.

Litigation also acts as an obstacle to delisting, critics said.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service commonly face lawsuits over delisting actions or the failure to meet deadlines on listing petitions from environmentalists.

As a result, federal regulators spend much of their time reacting to lawsuits rather than conducting science and on-theground activities, said Karen Budd-Falen, an attorney who represents natural resource industries.

"They simply can't do their jobs because all their hours are sucked up in litigation," she said.

A major settlement reached in 2011 between the federal government and environmental groups established a schedule for listing decisions for more than 1,000 species, said Lowell Baier, an attorney and environmental historian.

Rather than lift the burden of litigation, however, the settlement has simply invited new legal challenges when the governments decides not to list species, he said.

"The settlement did nothing but generate a whole series of new lawsuits," Baier said.

Meanwhile, the government has slowed its pace of creating "recovery plans" for species that are listed, Budd-Falen said.

Such plans were developed for 843 species between 1990 and 1999, but the rate fell to only 235 species between 2000 and 2009, she said. Only 177 recovery plans have been finished since 2010.

"The priority is in listing, not in setting recovery plans to get the species off the list," Budd-Falen said.

The lack of recovery plans is a hindrance to delisting because states and landowners don't have population goals for species to be considered recovered, she said.

"If we know where we're going, we can figure out how to get there," she said.

Defenders of the ESA's effectiveness argued the law has measurably helped listed species.

Ninety percent of listed species with recovery plans are rebounding at the prescribed rates, said Robert Glicksman, a law professor at George Washington University.

About 250 species would likely have disappeared if not for ESA protections, he said. "The success of the Endangered Species Act cannot be measured by delisting alone."

Funding for the ESA has been inadequate since the law was passed in 1973, but Congress has nonetheless sought to cut programs aimed at species recovery, Glicksman said.

ESA lawsuits are allowed to ensure that federal agencies are held accountable, he said.

The court system has been used by those who want stronger ESA enforcement and those who believe it's too strict, Glicksman said.

Attorneys can be sanctioned by courts for filing frivolous lawsuits, he said. "There's a reputational cost to an attorney in a case which the judge says the suit was frivolous."

Dan Ashe, director of the Fish and Wildlife Service, called the ESA "a visionary and powerful law."

"It's been remarkably successful: 99 percent of the species listed are still with us today," he said.

Even so, recovery efforts take time, Ashe said.

The bald eagle, for example, was delisted in 2008 after "40 years of hard work," which involved banning the insecticide DDT and restoring the health of rivers so they'd have enough fish to sustain the birds, he said.

Populations of the black-footed ferret were so low that it was considered extinct at one point, but now is improving, Ashe said. "We have brought it back to the point where we're now talking about the recovery of the black-footed ferret. That takes decades to accomplis

Mateusz Perkowski
Experts Debate Barriers to Species Delisting; Bureaucracy, Litigation Cited as Obstacles
Capital Press, May 6, 2016

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