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Endangered Species Act 'Broken,' Federal Officials Say by Phillip S. Moore Capital Press - May 6, 2003

As the governors of the four Pacific Northwest states prepared to meet in Boise to declare their support for salmon recovery efforts that do not involve dam breaching, Assistant Secretary of the Interior Craig Manson declared the endangered Species Act "broken" and a "classic example of good intentions failing the test of reality."

Expressing frustration with a process that he said favored litigation over protecting species, Manson said, "Imagine an emergency room where lawsuits force the doctors to treat sprained ankles while patients with heart attacks expire in the waiting room and you've got a good picture of our endangered species program right now."

As assistant secretary for fish and wildlife and parks, Manson said he is facing a situation where two-thirds of the $6.3 million endangered species listing budget is being consumed by court orders and settlement agreements. He said the U.S. Fish and Wildlife Service is now requesting congressional approval to shift funding from other endangered species programs to cover the shortfall.

Noting that in almost all cases, recovery of Endangered Species Act listed species has come through voluntary cooperative partnerships, rather than the regulatory power of the act, Manson said, "We need to make decisions about how to use our limited resources based on the most urgent needs of species, not on who can get into a courtroom first."

While not directly addressing the legal battle over endangered fish populations on the Columbia-Snake river System, Executive Director Glenn Vanselow, of the Pacific Northwest Waterways Association, said Manson's comments highlight the continuing gridlock over salmon recovery.

Vanselow said the June 5 governors meeting was another example of an attempt to resolve the decade-long struggle to find common ground. the meeting, which brought together Idaho Gov. Dirk Kempthorne, Montana Gov. Judy Kartz, Washington Gov. Gary Locke and Oregon Gov. Ted Kulongoski, was prompted by the May 7 decision by U.S. District Judge James Redden to strike down the 2000 Biological Opinion for endangered Columbia and Snake River salmon and steelhead, protected under the Endangered Species Act.

Redden's opinion supported a lawsuit filed by a coalition of environmental and fishing groups represented by Earthjustice attorney Todd True. While downplaying the link between the lawsuit and dam breaching, True agreed that Earthjustice position papers have declared the organizations opposed the Biological Opinion because it rejected dam breaching as an option.

By overturning the opinion, the environmental groups have again been able to introduce dam breaching as a strategy for salmon restoration.

Vanselow said this has been the situation for years, since the Endangered Species Act became the law of choice for promoting regional land and water use objectives.

"We've spent untold millions on studies of dam breaching, recovery teams that have rehashed the same ground," he said. "the agencies are getting sued from so many sides over so many things that the money is getting used up in process and not helping species."

As long as the agendas of the various groups have as much to do with using federal regulation to force changes in regional economic development as saving an endangered species, he said, "If you find (a solution), you will do it by chance."

"We have a spider web of goals. Everybody's goal has an effect on everybody else's goal. Finding ground has been impossible, so far," he said. "Until you build a structure where someone gets to decide what goals exist, you can't find a balance."

Liz Hamilton, executive director of the Northwest Sportfishing Industry Association, dismisses the idea that the lawsuits against the U.S. Fish and Wildlife Service and National Marine Fisheries Service are examples of the failings of the Endangered Species Act.

"It's obvious if you're losing lawsuits all the time you aren't obeying your own regulations," she said.

The association, which has supported environmental groups in some battles with the federal agencies and opposed them in others, sees the litigation as an example of "bringing everyone to the table." Prior to the ESA listing, she said it was commercial and sport fishermen who alone sacrificed to protect salmon and steelhead.

With the listing, including the litigation, the federal and state agencies, along with regional power and economic development interests are forced to become involved.

"The ESA is the one thing that's brought us all together," she said.

While the federal agencies and their opponents struggle over ESA implementation, the Northwest Power Planning Council attempts to make changes to the regional economy to aid both development and the environment, said Idaho Council Member Jim Kempton.

"The federal agencies are charged with implementing the act. We're not, and that puts council efforts and federal agency efforts in different directions," he said.

Created by the 1980 Northwest Power Act, in part as an ultimately unsuccessful attempt to avoid listing of Columbia-Snake fish species, Kempton said the council has attempted to match the goals of its fish and wildlife program to the goals of the federal agencies.

"We worked together," he said. "We've used Biological Opinion criteria in defining how programs are working, and our program funding for listed species exceeds all other species."

If the Endangered Species Act is broken, Kempton said it doesn't change the direction of the council.

"Our plans have concentrated on mitigation and habitat restoration to recover populations. This is a bottom-up approach, and I don't think we could do any better in achieving objectives."