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ESA Conflicts Mulled at Conference in Boise by Terrell Williams Capital Press, October 29, 2004

BOISE -- The Endangered Species Act has some problems that farmers and ranchers would like to reform, such as unlimited litigation and lack of delisting action.

But their opposition does not want to lose the power that ESA has in its uncompromising deadlines and other mandates. That’s what makes the act effective, they say.

Rancher Phil Soulen of Weiser said part of the problem is a lack of understanding.

“A lot of this stuff is coming from the big cities,” he said at a recent ESA workshop in Boise. “They just want to know it’s there. They don’t realize the consequences it has on local rural economy.

“There is no such thing as a friendly relationship between predators and livestock,” said Soulen, who has lost 333 sheep this year to wolf kills. “Predators kill livestock and all our game. That’s what they do. ... The wolves are sure working the game over. Traditional areas where I’ve been, the game just isn’t there.”

Dr. R.E. Cope, a Lemhi County commissioner from Salmon, said special interest groups with their own agendas are abusing the ESA.

“Most lawsuits that are filed have nothing whatsoever to do with recovery of the species,” he said.

Retired U.S. Senator Jim McClure, who was in office when the ESA was written 30 years ago, said an ever-increasingly larger, more affluent population has put added uses on public lands. The original goal of the ESA was to preserve the species, he said, but no one wanted to address research limitations or unavailability, economic impact factors, site specific critical habitat requirement conflicts, a means to resolve conflicts between conflicting demands, and other potential problem issues.

“I remember some colleagues got extremely impatient with me, (wanting) to get into that level of detail,” McClure said.

To resolve today’s ESA issues, he said, all parties need to come together to make choices and tradeoffs of values and activities.

“We need to reform the act to make a balanced public policy,” he said. “There has to be a means in which we can resolve differences. You have to try to make the act work.”

During the two-day workshop, biologists and government agency leaders described ESA related projects and successes they have had throughout the nation. A river with 35 trees per acre in its buffer zone has kept water cooler for fish habitats, and fallen logs across the water create structure, “which is a wonderful thing over time,” a resource supervisor said.

CONGRESSIONAL REFORM

The workshop ended with a conference call to Washington, D.C., where representatives fielded questions from a workshop panel and discussed the chances of ESA reform from a congressional perspective.

“We’ve got a lot of trust-building to do,” said Greg Schildwachter, majority staff for Sen. Mike Crapo. “It’s a common complaint that far more species have been listed than those that have been recovered and delisted. There’s a lot more said than done under the ESA. We need to spend more resources getting species off the list.”

The ESA, he said, is a far-reaching regulatory law that is bogged down with paperwork from lawsuits, which takes progress away from other parts of the act.

“The ESA is used to advance agendas that may or may not have anything to do with species protection,” Schildwachter said.

Some lawsuits are the result of zealousness, he said, but they also are the result of the law as it is written.

Panel members proposed several exemptions that would allow agencies to “work outside the box” with more flexibility in establishing habitats. But Schildwachter said those changes aren’t likely.

“You’ll hear a huge outcry of people who say if you take that away from them, they’re powerless,” he said. “What people want to be sure about is that the critters are going to be taken care of.”

Sen. Crapo, chairman of the Fisheries, Wildlife and Water Subcommittee of the Senate Environment and Public Works Committee, is trying to find some areas of the ESA that people on all sides agree could be better, Schildwachter said. Crapo’s current bill, as yet unnumbered, is circulating as a discussion bill to build trust and gather views of a wide variety of people before it is set in stone. Main focus of the bill is on problems over designation of critical habitat. It also formulates a specific number of recovery projects. Schildwachter said Crapo hopes to have this reform bill ready for the next congress.

“Everybody agrees that the species need to be saved,” said Kiel Weaver, staff member for Rep. Richard Pombo, chairman, House Resources Committee in Washington, D.C. “The question remains, how best to do it?”

With a less than 1 percent success rate in its goal of recovering endangered species, most would agree that the ESA is not successful, he said.

One proposed solution is a measure to legally protect volunteers who work in ESA recovery programs.

“They should not have to worry about litigation that borders on being frivolous,” Weaver said. “We need people doing real work, but the law doesn’t allow that to happen. It’s prohibitive in nature rather than affirmative.”

“The ESA has become a law of unintended consequences,” he said. “It has become a fund-raising tool for litigation and fund raising for groups not necessarily involved in saving species. We need to modify the ESA so it isn’t quite so litigation-friendly. For every lawyer you fire, you can hire two biologists.”

But people in the Northeast and Midwest distrust reform and are reluctant to change the ESA at all, Weaver said, “because they have not experienced what we have.” And in this, an election year, “don’t expect anything to happen,” he said.

Congressional debates on controversial issues are slow to ever reach a consensus, Weaver said, adding, “The worst thing that ever happened in this country was when Congress got air conditioning.”

MAINTAINING STATE CONTROL

The best solution is to get ahead of the ESA listing process, said Steven Huffaker, Director of Idaho Dept. of Fish and Game.

“I understand your frustration,” he told the workshop group.

Once the ESA lists a species, all agencies have to follow the letter of the law, Huffaker said. “Every time they try to do something else to benefit wildlife, they wind up back in court.”

But if the species is still under state law, the state can do as it wishes.

“Idaho can shape its future,” he said. “Let’s get out of the pressure cooker and be masters of our own destiny.”

Outlining the state’s plan and its timetable that is already in progress, Huffaker said Idaho is creating its own wildlife preservation strategy that will provide an alternative to the ESA process. The strategy includes putting focus on the species in greatest need of conservation, and making the best use of science and resources. Those involved include government agencies, conservation groups, private landowners and anyone who wants to help.

“We want everybody at the table,” Huffaker said.

Under state control, the director said, work is voluntary, not regulatory. This promotes local community-based conservation. Information on management practices will tell people how they can use their land and their knowledge, if they choose to do so.

“We need to prioritize the species to find out which ones the state needs to take definite actions to protect,” Huffaker said. This entails study of populations, range extent, threats, vulnerability, and long-term and short-term trends.

“How many places does it occur? What can we do to help it out?” Huffaker said. “If we can do this right, we may be able to come up with some safe harbor for threatened species.”

This will be a lot less expensive than ESA listings, he said, and an approved plan will be eligible for federal funding. The plan also will shift care from federal protection to state conservation.

“And I think that would be a really good thing to do,” he said. “It’s an opportunity for us to get out of the heat.”