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Common Sense Goal for ESA Regs by Patricia R. McCoy Capital Press, November 17, 2004

BOISE -- It took a little time for the natural resource industry to start using the courts to overcome some of the more onerous restrictions imposed on them by the Endangered Species Act and regulations imposed in its name.

It’s also taken time for some of those lawsuits to succeed. Today, slowly but surely, some common sense is being inserted into the equation, says Russell C. Brooks.

Brooks, managing attorney for the Pacific Legal Foundation’s Northwest center, Seattle, can cite numerous examples of court decisions that are helping ranchers, farmers and others affected by various environmental rules, regulations and past lawsuits.

“The environmentalists have gone so far out on the limb that judges are starting to rein in some of their more extreme demands. More and more members of Congress are getting fed up with the various prohibitions and restrictions coming out of ESA-related lawsuits,” he said during a recent visit to Boise.

“More and more people are being affected, and voicing concerns. Members of Congress in both political parties are hearing from constituents who feel the pain. The court of public opinion is very strong. As the pain increases, so does the reaction,” he said.

Even so, Brooks doesn’t expect to see Congress make any substantial, meaningful changes in the ESA itself. Reforms are more likely to be piecemeal and gradual, he said.

“Several bills proposing ESA reform are in various stages in Congress right now. None go far enough, but they probably go as far as their sponsors think they can. I fear none will pass. Each time some major reforms are proposed, they’re blocked. There are too many people out there who fear even the most minor changes, and not enough members of Congress who will vote for those bills. Eventually, though, it will happen,” the attorney said.

“You see polls all the time indicating that people support the ESA, but they don’t like the way it’s enforced. A larger portion of the public is beginning to question the equality of restrictions that protect animals, fish and plants without consideration for human beings,” he said.

Litigation is chipping away at ESA-related stone, and gradually building a wall around water rights, property rights, and other points of Constitutional law. The resulting rulings are starting to have an impact, Brooks said.

“Eventually we hope to get some of these issues before the U.S. Supreme Court. It’s been a long time since an ESA-related case reached the court, and a lot of legal issues out there worthy of its attention,” he said.

Brooks was lead council for the Alsea Valley Alliance case. A Ninth Circuit Court of Appeals ruling in that case last February requires agencies to count both hatchery and wild stock when determining if salmon populations should receive ESA protection.

That ruling resulted in delisting the Southern Oregon Coastal Coho. Relisting is proposed, but the Alsea Valley decision paved the way to challenge the listing of several other salmon stocks. Pacific Legal Foundation has already filed a notice of intent to sue to force those delistings, he said.

“The federal agencies thought they found a loophole in the Alsea Valley decision They’re trying to list all salmon, exempting hatchery fish from takings protection. We’re seeing record returns of salmon this year. I’m looking forward to hearing them explain in court how they can justify a listing when there are thousands and thousands of fish out there,” Brooks said.

“It will be six or seven months before the agencies put a final policy in place, and before the proposed relistings become final. If the agencies don’t fix what’s wrong in accordance with the court rulings, they’ll have no excuse when we file our complaint,” he said.

Brooks discussed four ESA-related Idaho cases in various phases of litigation during his visit here. They include one filed by the Idaho Conservation League claiming the state is violating the ESA by taking listed species when Idaho authorized timber harvest and road construction on state lands in the Priest Lake area of North Idaho. His office is preparing to intervene in that case and several more, he said.