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Bureaucracy, Not Biology, Drives ESA by Daniel A. Himebaugh Capital Press, May 17, 2012

According to the U.S. Fish and Wildlife Service, 1,440 American plant and animal species are currently listed as endangered or threatened under the Endangered Species Act. Another 182 species are candidates for listing. Yet only a handful have ever been removed from the list in the 40-year history of the ESA.

The list seems only to grow, and grow, and grow.

Some people might claim that the federal government's steady gathering of species under its ESA wings proves the existence of an extinction crisis. The truth, however, is that the expansion of federal wildlife regulation has mostly to do with bureaucracy, not biology.

Over the past few years, litigation has revealed two reasons the ESA lists keep getting longer. The Fish and Wildlife Service routinely fails to keep its scientific records up-to-date. And, where updated science is available, the Service routinely fails to follow it when the science recommends that species should be removed from the list.

The first problem stems from the ESA provision that requires the Fish and Wildlife Service to perform status reviews for each listed species every five years. The idea behind the provision is easy to understand. Because listing decisions must be made on the basis of best available science, periodically reviewing the scientific data related to each species allows the Fish and Wildlife Service to calibrate its regulations over time. In some cases, new data have shown that species that were thought to be nearly extinct at the time of listing are actually more abundant than originally assumed.

Unfortunately, the Fish and Wildlife Service does not strictly follow the status review requirement. In 2005, a lawsuit by Pacific Legal Foundation resulted in a settlement that required the Service to undertake status reviews for over 100 plant and animal species occurring in California and Oregon, because it had neglected to update its files on those species as the ESA requires. When the Fish and Wildlife Service eventually performed the status reviews, some of them showed that various species should not remain listed.

That leads to the second problem: While the Fish and Wildlife Service continues to add species to the ESA lists, it moves slowly when species need to be removed. The 2005 litigation has so far resulted in the Service finding that more than 20 species should be reclassified or "delisted." But in spite of the Service's own scientific conclusions, only one of the 20 has been reclassified. Most of the others are the subjects of follow-up lawsuits that seek to force the Service to do its job and make the regulatory moves necessary to accomplish the reclassifications.

For instance, the Service recommended reclassifying the arroyo toad in 2009, but the Service has so far not acted on that recommendation. In fact, the Service enacted a rule in 2011 that expands the toad's "critical habitat" throughout Southern California even though the toad's listing status is in question.

It would be unrealistic to expect perfect performance from the Service, but we should at least insist that the agency abide by statutory deadlines, and not fail to act on science that recommends species for delisting. The ESA is a fountain of regulation that limits what people may do with the land they own.

Restricting property rights for the sake of protecting wildlife that does not need to be protected is bad environmental policy.