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Congress, Courts Shape
the Act We Know Today

by Nate Poppino
Times-News, January 25, 2010

(Ashley Smith) Bald eagles flock near Box Canyon in the Thousand Springs State Park in December. They arrive each winter and dozens of the eagles can be seen perching on trees and flying in search of food. Supporters of the Endangered Species Act point to the recovery of the national symbol as one of the act's greatest successes. Idahoans today probably feel they know the Endangered Species Act pretty well. They see its face in the wolves that now roam their state's backcountry, in the sockeye salmon that fight their way up Idaho's rivers and in the bald eagles that gracefully soar near the Snake River Canyon.

In recent years, most haven't seemed enthused by what they see. Aside from the furor over Idaho projects such as wolf reintroduction, residents have also watched Western neighbors grapple with complicated issues. Farmers in Klamath Falls, Ore., fought attempts to take irrigation water that aided struggling salmon runs, and similar restrictions for a fish called the delta smelt are the subject of debate now in California.

"The federal government has its place, and I'm grateful for the federal government, but that place is not usurping state's rights," said Dale Quigley, a longtime Twin Falls resident active in the Magic Valley Fly Fishers.

To understand how a national attempt to preserve nature led to fights over land, water and growth, one must look back at just how the ESA evolved.

Years in the works

The landmark legislation that passed in 1973 was spawned by one a few years before. The Endangered Species Preservation Act of 1966 allowed for listing native U.S. animal species as endangered and for limited protections. On Feb. 24, 1967, Interior Secretary Stewart Udall announced the first list of endangered species -- 77 mammals, birds, reptiles, amphibians and fish deemed threatened with extinction.

Then the act was amended in 1969 with additional protections for species at risk and a call for an international meeting on the issue. That summit produced the law on the books today.

It expanded protections for plants and all invertebrates, broadened the restrictions for endangered species habitats, and required biologists to consult on any federal projects that might affect listed species. Yet it still missed provisions that it's known for today.

Economic effects of a listing weren't expressly prohibited from being considered until 1982, for example.

The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration both enforce the ESA and have been instructed to serve as impartial, scientific sources of information for species reviews and consultations.

Their list today consists of about 1,320 species, just over 1,000 of which are endangered. Nearly 580 more foreign species were also found worthy ofprotection.

Only 46 species have been delisted since Udall's announcement, according to the U.S. Fish and Wildlife Service. Just 20 have recovered; nine went extinct, while the rest were dropped for incorrect data.

Environmental advocates say those numbers are to be expected given the long biological timelines recovery efforts can take. Louisa Willcox with the Natural Resources Defense Council's Montana office said the act is working when it at least puts a system in place to nurture species, and noted some creatures will be challenged no matter how much assistance they get.

"You have to look at how the whole arena is looking," she said.

Patched in pieces

The ESA attracted critics right away, and Congress didn't wait long to make changes. The first major amendment came in 1978 with the creation of a Cabinet-level Endangered Species Committee that could allow federal agencies to proceed with actions jeopardizing species on the list. The committee was known as the "God Squad" and would be criticized over the years for its power.

Also in 1978, the U.S. Supreme Court gave the ESA its true teeth. Justices ruled that construction on the Tellico Dam in Tennessee had to stop in order to protect a tiny fish, the recently discovered snail darter. The act's priorities were clear; even the God Squad didn't see the dam as worth finishing, and Congress itself eventually had to order it built.

Lawmakers tweaked the act again in 1982, clarifying explicitly that wildlife officials could not factor economic ramifications and other related effects of a listing into their decisions. Section 10 of the law introduced habitat conservation plans, granting landowners leeway to slightly disturb or harm a species in the course of business in return for conservation promises. And Congress also tightened listing deadlines, requiring a final decision within one year of a listing proposal rather than two.

According to Fish and Wildlife, more than 1,500 proposed listings had already been mandatorily withdrawn in 1979 for failing to meet the two-year deadline.

Congress made one more major reform in 1988, greatly expanding recovery and monitoring efforts. Candidate and recovered species had to be monitored for the first time. Species recovery plans also had to undergo far more scrutiny and public review.

The courts continued to review and interpret the law many times over the years. A 1988 decision paved the way for protections of the northern spotted owl that protected old-growth forests, but devastated the Oregon timber industry.

The U.S. Supreme Court in 2007 backed up some state powers, clarifying that states don't have to run management decisions past federal biologists when the states are delegated oversight of environmental laws such as the Clean Water Act.

But the court refused in 2005 to hear another states'-rights argument, challenging federal power to regulate endangered species that only exist in one state and have no commercial value.

One cumulative effect was more work. Jim Caswell, who spent much of his career with the Forest Service and Bureau of Land Management, pointed to how much biological assessments used in consultations grew from a small document as rules were added.

"And so a number of years further on, and the biological assessment now looks like this," he said. "No resemblance to how it looked when it was first born."

Court interpretations and challenges have had much to do with how the agencies conduct themselves today. The net effect of those cases has been to narrow the focus of the ESA, said David Mabe, who heads up NOAA Fisheries' habitat efforts in Idaho.

"(They) just kind of reminded us that our work is really about the species, not social or economic impacts," he said. Interior connections

Complaints and tinkering have continued, with presidential administrations suggesting more changes over the years. Dirk Kempthorne, President George W. Bush's last interior secretary and a former Idaho governor, managed to make some project consultations optional.

His tweaks didn't last long, reversed by President Obama when he took office last year. But the Obama administration now has its own list of ESA items to review, possibly including the consultations, how habitat is designated "critical" and vital for a species, and what defines "adverse modification" of that habitat.

Former Idaho Gov. Cecil Andrus, who served as President Carter's interior secretary from 1977 to 1981, tried but failed to make one change to the law, which he describes as otherwise proper. Species receive listing protections while being considered for listing, he said -- removing that would discourage activists from using the act as a tool to target other land uses and industries.

"It's a very necessary act, a good act," Andrus said. But he acknowledges ways the act can be applied heavily.

"It's become a vehicle where many times again my environmental friends will think of any way they can to stop a project, whether it is beneficial or whether it is not. And they'll reach out and use any tool that is available.

"The Endangered Species Act, as it is written, is a tool that can be used."

He was in Washington for the snail-darter controversy, and cited that case and the spotted owl as times that environmental interests misused the act.

The first time, of course, the dam was the target -- the biologist and others involved in that matter have since publicly acknowledged they were looking for ways to halt construction.

And timber, said Andrus, was clearly the target of the spotted owl listing. Conclusions that fewer than 100 mating pairs survived and only nested in old-growth forests "brought the timber industry to its knees in western Oregon," he said. Biologists later determined that several hundred pairs of the bird lived in a somewhat broader range. Today, competition from the barred owl is fingered as the main culprit in the spotted owl's decline.

But he also noted species such as the bald eagle, peregrine falcon and others, aided by the law. He rejected allegations that the act is inflexible or broken. "I don't accept that," he said.

In Idaho, growing pains

Despite the national debate, the ESA didn't fully arrive in Idaho for a number of years. Most of the plants and animals currently listed in the state were added in the 1990s or later.

Though not formally listed until the '90s, two species of salmon were among the first to show up on the state's radar, including the sockeye that gave Redfish Lake its name.

The grizzly bear also became the focus of a controversial effort in north Idaho. And a handful of snails native to springs in southern Idaho -- five in the Snake River and one near Bruneau -- were among the first creatures to attract significant local attention.

Advocates for the snails said they felt a moral obligation to list them, but also admitted to other motives. In the early '90s, Peter Bowler, a California biologist who grew up in Idaho, described to the Times-News how the snails would help block a number of proposed hydroelectric projects in the Hagerman area.

"When you think about what we've lost, it's tragic," Bowler said in a 1990 interview.

The Snake River snails were eventually protected in 1992, with the Bruneau snail following the next year. But the ESA debate in Idaho was just heating up.

In 1995, the federal government released gray wolves into the Idaho wilderness despite protests from state officials, launching a years-long effort to rehabilitate the predators that continues today.

Former state Sen. Laird Noh of Kimberly headed the Senate Resources and Environment Committee for 22 of his 24 years in office. He recalled the immense education effort it took to get recalcitrant state legislators to understand the ramifications of the ESA, which couldn't be touched by economic concerns or other balancing aspects of resource management.

Lawmakers first refused any attempts to go along with the federal reintroduction. Noh and other legislators on the House and Senate resource committees had already been through the salmon issue and understood what was at risk. For several years, they painstakingly negotiated a state wolf management plan "a word and a sentence at a time."

"One of the great motivating factors in stimulating people to compromise and reach agreements was this growing understanding of what can be some very heavy costs if you let the act play out," Noh said, noting examples such as irrigators in the upper Lemhi and Pahsimeroi basins who could possibly have faced punishments if their systems sucked in salmon smolts.

Proactive policies

Noh also had help form the fledgling state Office of Species Conservation, placed under Kempthorne by the Legislature in 2000.

With OSC, the governor hoped Idaho could be more proactive about species issues in a way that also considered state and local needs.

Kempthorne said he hoped to work with motivated landowners "who agreed, 'Yes, we can make a difference. We are stewards of the land. We want to have these species. They enrich our whole experience with Mother Nature.'"

To lead OSC through its first few years, Kempthorne picked Caswell, who viewed private land as a conservation priority because he felt it was usually higher quality than some areas of public land.

"They're always skeptical, and rightly so," Caswell said. "Because again, a lot of times they don't understand the law and how it works, and they're not even sure 'How did I get into this mess?'"

State officials today again portray themselves at a crossroads after a failed, OSC-driven attempt to keep slickspot peppergrass from being listed. Kempthorne said he believes the listing shows OSC may have reached a limit, despite hopes that other states would create similar agencies after seeing Idaho successes.

"But (those states are) looking now and saying with regard to peppergrass and sage grouse, 'Apparently it doesn't matter how much we put into this before.'"

Coming Tuesday:
How collaboration can make or break a species' recovery in Idaho.

Related Pages:
Salmon Support 137 Other Species by Ed Hunt, Environment News Service, 7/6/00

Nate Poppino
Congress, Courts Shape the Act We Know Today
Times-News, January 25, 2010

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