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Workshop Mulls Dilemma of ESA by Terrell Williams Capital Press, October 15, 2004

BOISE -- Too much litigation and not enough animal recovery are dilemmas of the Endangered Species Act.

“The ESA should be reformed,” said retired U.S. Senator Jim McClure. “The act, I think, is valuable, … but it ought to be reformed so that it can work.”

McClure spoke at a workshop in Boise Oct. 6 and 7, where about 100 individuals and agency representatives attended 12 hours of lectures to study the ESA and find practical paths to deal with the powerful federal law. The conference was sponsored by the Idaho Council on Industry and the Environment, and the Idaho Office of Species Conservation.

Everything in life involves trade-offs, McClure said, but the ESA does not permit balanced decisions.

“The ESA became a powerful tool for people who wanted to change public policy in dealing with land, air and water,” said McClure, who was in office during discussions on the act when it was passed 30 years ago. “The goal was to preserve the species … (but) they wrote the act in overly broad terms. It preserves the species without regard to any other law or causes.”

McClure said he tried to have balances written into the act, but colleagues became impatient with him, saying that future congresses could change the act should the need arise.

“Congress was careless. Care less,” he said. “They wanted to make a statement, but they did not make it in a way that the act is capable of performing the act for which it is intended.”

There are a lot of things we do that we don’t see the consequences of, he said.

Of more than 1,300 species that have been put on the ESA endangered species list, fewer than 12 are now recovered, giving the act a success rate of less than 1 percent in 30 years.

In his opening address at the ICIE workshop, Idaho Gov. Dirk Kempthorne said one problem with the ESA is that it lists threatened or endangered species and moves on, with not enough emphasis on efforts to get listed species off the list.

Speaker Dale Goble, an attorney and professor specializing in energy law and policy, related the history of ESA and the specifics of its requirements. The ESA, he said, has a relatively simple format of listing species that are at risk of becoming extinct, then recognizing the threats — such as habitat destruction, over-utilization, disease or predators. Next, the listed species are protected until their numbers have recovered to specified goals, at which time the species is taken off the list. The ESA, Goble said, has roots in laws 1,000 years old that restricted game hunting and that conserved wildlife habitat.

“The act’s objectives are newer,” he said. “The idea that it is important to save all the pieces is, in the sweep of things, a new perspective.”

Since its beginnings as the Endangered Species Preservation Act of 1966, the ESA has progressed from game protection, to wildlife management, and finally to species preservation.

“The combined effect of the legislative and administrative amendments to the act has been to transform the prohibitive statutory mandate into a more flexible permitting system,” Goble said. “This is not, however, the public perception. Nonetheless, the act at 30 (years old) remains a lightning rod – a fact that itself may actually impede the recovery of at-risk species.”

Sometimes, he said, the process gets in the way of progress.

“There are so many hoops that they’ve created for us to jump through,” he said, “it’s become a mess of red tape.”

If a species is listed as endangered, ESA laws go into effect and control becomes federal. Mike Scott, a research biologist with the U.S. Geological Survey, said state residents often wait until the last minute to help an at-risk species.

“In doing so, we’re limiting our options,” he said.

The ESA needs some insurance measures to make sure endangered species will be delisted when recovery goals are met, he said. At present, wolves are a recovered species, but they are still listed and protected under federal law. For the ESA to work better, Scott said, the federal government needs to cooperate more with state officials.

And for a better success rate, recovery efforts need to concentrate on species that are easiest to help, Scott said. “Some species are low hanging fruit that we can really make a difference with in a relatively short period of time.”

CONSTANT LITIGATION

Strict critical habitat designations of the ESA have become a litigation quagmire, said Jeff Foss, supervisor of the Snake River office of the U.S. Fish and Wildlife Service.

“We’re definitely flooded,” he said. “We can’t keep up with it. ... The cycle of litigation appears endless and very expensive.”

John Iani, regional administrator for the Environmental Protection Agency, talked about lawsuits based on lack of procedure in following ESA deadlines and other inflexible requirements. ESA litigation rules allow any person to file a suit to enjoin any person (public or private) alleged to be in violation of the act.

The environment is being harmed, Iani said, because money that could have been spent on biology research and species recovery is being spent to fight legal battles filed by people who may or may not care about an endangered species.

“There are all kinds of ways of stopping a legitimate project,” he said. “All of that (court cases) drains resources from other work that needs to be done…. The ESA really does need to be reformed because it is being used in a way that was never contemplated by the Congress.”

Officials from different government agencies need to work together to avoid interagency conflicts, said Richard Krause, director for Regulatory Relations and Regulatory Counsel for the Public Policy team in Washington, D.C. Cross training and standards for ESA testing are needed so agencies do not have gaps and overlaps in reports and other work.

In one stalled case, Krause said, “All of the agencies said, yes, we’d like to do something about it, but we can’t until another agency does something.”

Better communication and standardized procedures will help solve ESA issues causing so many lawsuits, he said.

“You can’t talk about ESA without talking about litigation,” said Krause, a former legal council for the American Farm Bureau Federation. “Lawsuits have a very real impact (resulting in) loss of resources that Fish and Wildlife must use to address these cases.”

Frank Casey, an agricultural and natural resource economist, said he would like to see more incentives for private land owners to help with species conservation, “and hopefully prevent those species from being listed in the first place.”

With charts and graphs, Casey showed that private land is critical to preservation of the species. Idaho has eight incentive programs, he said, but paperwork and regulations are such that landowners throw up their hands and say, “I don’t have time to deal with this.”

Other incentives have not been successful. For example, certification of ecolabeling, stating that a product comes from a habitat-friendly environment, appeals only to a small niche market. Eco-tourism, giving access to private lands to view, for example, wolves, is not popular because ranchers do not want to open their lands to the public.

The best incentive, Casey said, is education and planning that will enable landowners to prevent species listing rather than having to react to it.

“That is one of the major themes that has come up (at the workshop),” he said. “We need to do a lot more on the improvement of private land for the improvement of restoration of the species.”

Conservation priorities should be established, Casey said. Long term and large scale conservation planning is needed at the national level. And locally, landowners should combine their knowledge with community developers to identify conservation projects and funding. Landowners struggling under ESA restrictions should have increased funding and expanded technical support, Casey said.

“We need to keep producers on the land and promote habitat restoration,” he said. “We need to be self-corrective along the way.”

Farmers and ranchers need to be kept in business, Casey said. “They are the true stewards.”