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Too Controversial to Change Critics Push Ways
to Improve the ESA, But Politics Block Major Reform

by Nate Poppino
The Times-News, January 26, 2010

(Ashley Smith) Bald eagles flock near Box Canyon in the Thousand Springs State Park in December. They arrive each winter and dozens of the eagles can be seen perching on trees and flying in search of food. Supporters of the Endangered Species Act point to the recovery of the national symbol as one of the act's greatest successes. Westerners who gripe about the Endangered Species Act often have very clear ideas about how they'd change it. But actually making those changes is another matter entirely. The ESA is the very definition of a political hot potato, and there may not be much anyone can do to alter it anytime soon.

The agencies that administer the law note they already accomplish quite a bit in Idaho. And, aware of the criticism, they said they've taken steps to try to respond to it.

Not always easy to play nice

Getting people of all persuasions together to help a species is easier said than done.

Idaho residents and government officials alike clearly see local input and guidance as vital to the ESA. Steve Westphal of Filer, a member of the Rocky Mountain Elk Foundation, praised the role grassroots groups -- such as the one he supports -- play in conservation.

"It's made up almost entirely of volunteers like me," he said. "And we do it because we love the outdoors and we want to protect our interest for the future generations."

But even locals can disagree, and politics and philosophy can infect attempts to cooperate.

Sarah Harris, president of the Audubon Society chapter in Twin Falls, participates in one of the local working groups aiming to save the Greater sage grouse. But she has mixed feelings about how that collaboration has worked, as well as the partisan turn the statewide conversation about wolves took.

"I've been really dismayed by the vitriol expressed by those who don't want wolves," said Harris, who didn't oppose the state hunting season for the predators. "I don't think it's going to hurt to have a hunt. Hunting with heat in your eyes is another thing."

Reaching out, opening up

Getting past that heat is a key task for the federal agencies that administer the species act. Officials with the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration said that Idahoans, stereotyped as anti-government, are actually more willing to work with them than some think.

One of the agencies' most critical roles from a local perspective is crafting habitat conservation agreements for listed species. In exchange for pledging to improve habitat over a 10-year span, landowners aren't punished for minimal harassment or harm to a listed species in the course of business.

That's the ESA's main tool in recruiting private landowners, explained Kendra Womack, who handles Fish and Wildlife conservation partnerships in Idaho.

"So it's a real win-win, where we get conservation ... and in return we kind of take away the perceived disincentive of having species on the property," Womack said.

The agencies also pursue more voluntary habitat projects with watershed groups, soil conservation districts and the state Office of Species Conservation. By offering cost-share incentives, the feds find more landowners who conserve.

They've also worked to have more of a local presence. NOAA Fisheries, for example, has opened offices across its project area in Salmon and Grangeville to make agency employees part of the community and give them a better idea of the issues ranchers, loggers and others face.

"We can't focus on them in our decision," said David Mabe, the agency's state habitat-conservation director, "but that doesn't mean that we don't understand them, that we shouldn't understand them."

Environmental groups also show they don't need laws to compel them into collaboration.

Matthew Miller of the Nature Conservancy said his organization sees cooperation and communication as the keys to productive, local conservation work.

"We listen, and we see the local communities as being the experts on many aspects of conservation," Miller said. "And so we don't see them as adversaries."

That mindset has led to numerous projects around the state, including work combining conservation easements and habitat restoration for Chinook salmon in the Lemhi and Pahsimeroi rivers. For decades, few salmon returned to spawn in a creek in the upper stretches of the Pahsimeroi; last year, Miller said, biologists counted 68.

"That shows what you can accomplish by working together," he said.

Some still not happy

Some feel the government still hasn't stepped up enough.

"The (Endangered Species Act) doesn't need to be corrected," said Katie Fite, biodiversity director for Western Watersheds Project. "What needs to be corrected is, of course, the federal agencies following the act; applying, I guess, just basic common sense."

She pointed to another project in the Pahsimeroi and Lemhi region, where steps to protect threatened bull trout simply spread noxious weeds and failed to take into account the remedies' effects on other species.

"(The ESA) says you should take a more integrated view of things," Fite said.

But the act doesn't actually provide for a big-picture approach, countered Jim Caswell, first the head of OSC under Gov. Dirk Kempthorne, then director of the U.S. Bureau of Land Management when Kempthorne was U.S. interior secretary. Caswell, arguing for ESA reform, said the act must consider ecosystems as a whole.

"Nothing operates in a vacuum," he said, adding, "What's good for salmon and bull trout in the same stream may not be compatible."

Recovery plans -- called for in the act once a species is listed -- have been completed for all but one of the Idaho species Fish and Wildlife oversees and are in the works for NOAA's listed fish in the state. But several people, even those who didn't call for reform, said the act must do more to support a species' recovery.

Justin Hayes with the Idaho Conservation League is one of those who urge for earlier action in a species' decline so that fewer need to be listed. Others said the act just doesn't elaborate enough on recovery requirements and process, a view shared by Kempthorne. The short existing section on recovery plans doesn't go far enough, he said.

Kempthorne argued that the act is more about listing than recovering species and compared its approach to triage at a hospital.

"You wait until the patient is critically ill to the point that you then list it as endangered," he said. "And once you have done that, you move on and look for the next species to list."

A reform bill he proposed in 1997 as a U.S. senator, would have tucked in a new section on recovery among other changes, he said. Criticized by environmental groups for dismantling part of the act, the proposal did have support from current Senate Majority Leader Harry Reid, D-Nev., and others.

Where politics and science collide

States do wield ESA influence. News reports ahead of next month's decision on sage grouse have speculated if a listing will be politically angled to avoid blowback from Western states and energy developers.

But the most common sentiment uttered by critics is that the federal government intrudes in what some call state and local affairs.

The belief is shared by Idaho policymakers as well. Caswell said he'd like to see Section 6 of the act -- dealing with cooperation with the states -- rewritten to more explicitly allow states to contract with the government to manage species issues themselves, similar to delegating powers under the Clean Air Act and other legislation.

"We should've been able to have the state say, 'We're sovereign, we're allowed to manage the plant,'" he said of the recently listed slickspot peppergrass. "That ought to be good enough."

Not everyone agrees. Hayes said the state's attempts to keep species such as slickspot peppergrass and sage grouse off the list have been based too much in politics and not enough in science.

"When the (agency biologists) are saying, 'Hey, we have a problem here,'" Hayes said, "but the political power of the state or the nation is such that science will be shoved in a room with the door shut, people just keep rationalizing the political decision. And it just comes back and bites them in the butt."

Successful collaboration on any aspects of the act, even between the state and federal governments, would presumably require a little compromise on some of Idaho's more ideological concerns.

"You can't take a stance with no flexibility," said Cecil Andrus, former Idaho governor and U.S. interior secretary.

Other ESA concerns have more to do with money than the law. Both Westphal and Dale Quigley, a longtime member of the Magic Valley Fly Fishers, questioned the cost of saving every species. Quigley wondered if government conservation programs should be put on hold until the economy recovers.

It's a matter of priorities, he said, referencing an obscure plant called the Goose Creek milkvetch that's a candidate for listing and only lives on 10 square miles in Idaho, Utah and Nevada.

"It probably isn't going to affect the world, whether that minute species survives or not," he said. "We all have our favorite thing ... To some people, I expect it's pretty important. Common-day man has to make some basic decisions every day."

Steep climb ahead for change

Those in Washington politics of the past and present say reform would be a difficult venture.

Andrus simply wants one adjustment keeping ESA protections from kicking in until a species is actually listed. He believes such a bill just needs "an enlightened member of Congress" to draft and carry it. Several of Idaho's delegates would do, he said, including Reps. Walt Minnick and Mike Simpson, and Sen. Mike Crapo.

In 2008, Crapo secured a permanent tax deduction in that year's farm bill for ESA expenditures on private land. But anything more than incremental reform isn't feasible in the current political climate, and hasn't been for about 20 years now.

"As desirable as a comprehensive fix and solution would be, I don't believe that it is politically achievable," Crapo said.

Adding to the problem is the fact that the most powerful states in Congress aren't the ones generally affected by the ESA, Caswell said.

"There's no stomach for it," he said of lawmakers, especially those in the East.

Kempthorne insisted that during courtesy calls with Congress members during his confirmation revealed a large majority would support revisions to the act. He could have secured those revisions with more time, he said, given the other issues such as ethical problems plaguing Interior that he had to tackle.

"There is a willingness," Kempthorne said. "Generally they fell in the category of 'Why would we not try? Something has to be done.'"

The public was behind reform too, he believes. In listening sessions he held across the country, he said the vast majority of people who came asked for some sort of change to the act. What they didn't call for was just as notable, he said.

"Nobody was advocating the abolishment of the act," he said.

Whether reform is attainable or not, agencies are at least willing to talk about it. The Obama administration, after undoing changes made by Kempthorne, has already signaled its plans to consider ESA adjustments of its own.

"I think every administration looks at ways to do things better -- streamline consultations, position ourselves so we're not vulnerable to legal challenges so we can put money toward species rather than courtroom fees," said Pat Sousa, Fish and Wildlife's regional endangered species program manager.

In general, Mabe said, it's always good to review how things are done.

"It's a valid time for us to be listening," Mabe said.

Nate Poppino
Too Controversial to Change Critics Push Ways to Improve the ESA, But Politics Block Major Reform
The Times-News, January 25, 2010

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