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At 30, Endangered Species Act still breeds controversy
By Theo Stein
Denver Post Environment Writer

Sunday, November 30, 2003 -

Some of Colorado's newest and most-famous residents are slinking about the state's rugged southern quarter on oversized paws, thanks to a 30-year-old law that Westerners love to hate.

Radio collars placed on Colorado's reintroduced lynx have revealed critical new information on the secretive species. And the 16 kittens produced by the reintroduced snow cats are being hailed worldwide as a conservation first.

But as the Endangered Species Act marks its 30th anniversary in December, the country's most powerful environmental law finds itself under attack from all sides.

Politicians say the law has been hijacked by environmentalists and turned into an anti-growth tool. Conservation groups accuse the Bush administration of trying to ignore the law.

Meanwhile, officials at the U.S. Fish and Wildlife Service struggle with programs that are hundreds of millions of dollars in the red. The agency routinely fails to make timely decisions, and nearly every decision it does make generates a lawsuit. As a result, court orders dictate many of the agency's actions.

The waiting list of species that federal biologists agree need protection has climbed to 256, including Colorado's boreal toad, lesser prairie chicken and Gunnison sage grouse.

"What's happening is we are building up a huge conservation deficit in this country," said Rodger Schlickeisen, president of Defenders of Wildlife. "There is just not the political will to fund the important work this act requires."

Big, photogenic species such as the lynx have done well under the Endangered Species Act, largely because they capture the public's imagination and support. Biologists say the law has stopped the decline or extinction of most of the 1,263 species protected under its arm.

But when the animals live on land coveted by people, the law has been less effective.

In 30 years, only seven U.S. species have improved enough that they no longer need protection. And the best-known victories were easy. For example, the brown pelican and the peregrine falcon rebounded when the pesticide DDT was banned. Gray whales and gray wolves recovered when whaling and hunting were restricted.

The Bush administration doesn't like the law. Under Interior Secretary Gale Norton, listings of new species needing protection have slowed to a trickle, largely because the agency's budget is tied up in lawsuits, she said.

Only 25 have been listed since Bush took office in 2001 - all as a result of court orders. By contrast, the Clinton administration added an average of 55 species per year. The first Bush administration listed an average of 64 per year.

Some politicians, such as Colorado Gov. Bill Owens, point to the endless squabbles, legal fights and dismal recovery rate as proof the law is broken.

"I would suggest the federal government in the 1960s and '70s made some huge steps forward in areas such as welfare, housing, highways and even defense, but that over the next 30 years we've learned how to do these things better. The Endangered Species Act is no different," Owens said.

Owens wants the federal government to delegate authority for endangered species programs to states as it does air pollution programs. He also wants clear recovery goals to be established soon after a species is listed.

The cost of conservation
University of Wyoming professor Steven Buskirk says lawmakers who supported the original Endangered Species Act may not have realized just how many species would require protection under the law - or how expensive it would be to recover them.

"The conservation of species is not just a symbolic act," said Buskirk, who studies midsize carnivores such as the lynx and black-footed ferret. "It comes at a cost. And because the costs are larger than some folk want to pay, Congress has disabled the law by simply not funding it."

Last April, Gary Frazer, assistant director for endangered species at the U.S. Fish and Wildlife Service, testified that the agency needed $153 million to address the backlog of obligations under two key programs: listing new species and designating the habitat they need to survive.

The agency got only $12.3 million for those programs for 2004. That was double the 2002 budget and a third more than this year's.

But slowly, a middle ground is emerging in the debate. It includes state efforts to protect species before they are listed, to head off listings - like Colorado's lynx reintroduction - and incentives for landowners who conserve vital habitat.

Richard Knight, a professor of wildlife biology at Colorado State University, says protecting creatures that lack star power, such as the Preble's meadow jumping mouse, will take more: willingness to leave room for critters that writer Wallace Stegner called "the little live things."

The fight over the mouse embodies both the power and the problem with the Endangered Species Act, Schlickeisen said. Some people want to save the mouse, others want to develop the land the mouse lives on.

"By protecting habitat, the law creates incredible political pressure," he said. "And there has never been an administration or leadership in Congress that didn't bend somewhat to political pressures."

Critics of the act argue that it now is misused.

"The Endangered Species Act has essentially gone from being about the protection of species to stopping urban sprawl or development or what have you," said Christopher P. Massey, a staff attorney with the Mountain States Legal Foundation.

In June, Massey sued the government on behalf of Douglas County builder Robert Hoff, who says that mouse habitat has devalued his land because he cannot fully develop it. He wants the mouse taken off the list.

Hoff's claim, Massey said, is based on a common criticism of the law - that shoddy science is often used as a basis for new listings.

Opposition to the act, Knight said, stems from the frontier mind-set that divides animals and plants into two classes: useful or wasteful; resource or impediment; good or bad.

Law itself is threatened
When President Nixon signed the act in December 1973, it was seen as a no-brainer. Throughout the 1960s and early 1970s, scientists reported alarming declines in some of North America's most cherished wildlife. Gray whales, grizzly bears, and even the national symbol, the bald eagle, seemed destined for extinction.

So the act's authors gave it teeth: When scientific studies show an animal, plant or insect is in trouble, the Fish and Wildlife Service must limit activities that harm individual members of the species and designate "critical habitat" the population needs to survive. The law also requires the agency to recover endangered species "to a significant portion" of their range.

And it gave citizens the power to sue if the government failed to act. That generated so many lawsuits that courts now essentially dictate how the Fish and Wildlife Service spends its budget.

Assistant Secretary of the Interior Craig Manson likened the agency's plight to "an emergency room where lawsuits force the doctors to treat sprained ankles while patients with heart attacks expire in the waiting room."

The money the agency spends defending the suits and complying with court orders should be spent on listing and recovery programs, said Manson, who oversees the Fish and Wildlife Service.

He advocates reforming the law's "critical habitat" provisions, which federal biologists say almost always invite lawsuits from groups that feel too much or too little land was set aside.

Other parts of the act work just as well as protecting habitat, the biologists say.

"Habitat is critical for the survival of endangered species, but critical habitat as mandated by the Endangered Species Act is not," Manson told The Denver Post. "This is a classic example of good intentions failing the test of reality."

Brock Evans, director of the Endangered Species Coalition, a Washington, D.C.-based conservation group, estimates there have been 60 or 70 congressional efforts to weaken the law.

"It's the strongest environmental law in the country," he said. "To me it's a miracle it has survived."

But Evans agrees with the law's critics on two main points: More effort should be made to keep species off the list and to expand incentives to protect habitat on private land.

Colorado's governor says states can take the lead in species recovery by breeding species and releasing them, as Colorado has with endangered fish on the Colorado River. A state-run mousery, Owens has said, might solve the Preble's mouse problem.

Critics deride Owens' mouse plan because it ignores the link between species survival and habitat protection.

That approach, presented as a compromise, in reality is an assault on the Endangered Species Act, said Evans.

"They've starved it so now they can claim it needs reform," he said. "And reform is code for, 'Gut the law so it doesn't function at all."'
Listing: To receive protection, a species must be designated as threatened or endangered by the federal government. The law allows citizens or groups to petition the government to list or delist a species and then sue if they don't like the result.

Recovery: The law's goal is to increase populations and remove threats to habitat to ensure the long-term survival of a listed species. Recovery has proved elusive - only 7 of the more than 1,200 species listed have rebounded enough to be removed from protection, though the bald eagle, gray wolf and grizzly bear may soon be delisted.

Critical habitat: An area ruled essential to the survival of a threatened or endangered species. Federal agencies must consult with the U.S. Fish and Wildlife Service about the effect of actions they authorize, fund or carry out, on designated critical habitat.

Consultation: The act requires all federal agencies to conserve listed species and ensure that their actions do not destroy or harm critical habitat. Any project that needs a federal permit and potentially affects a listed species must be cleared by the Fish and Wildlife Service.

Candidate species: Species that the Fish and Wildlife Service says need protection, but cannot receive it because of budgetary shortfalls.

Candidate conservation agreements: Voluntary agreements between agencies and private or state landowners to benefit proposed species in decline.

The agreements provide landowners who agree to manage their lands or waters to benefit at-risk species the assurance that future conservation efforts will not result in land-use restrictions beyond those identified at the time of the agreement.

Habitat conservation plans: Agreements designed to offset any harmful effects the proposed activity might have on the species. The process allows development to proceed while promoting listed species conservation.

Safe harbor: Agreements that give landowners who voluntarily manage their land for the benefit of listed species assurances that no additional future regulatory restrictions will be imposed.


Premium Member
108,049 Posts
That act is certainly a double edged sword:


EDITORIAL: For the birds

My, what a conundrum environmentalists are in when it comes to the tale of foxes, eagles and pigs on the channel islands off Southern California.

It seems that a large number of wild pigs on the islands have attracted a significant community of "threatened" Golden Eagles, who find the piglets tasty.

The birds discovered, though, that the foxes could also satisfy the palate. Alas the foxes are an "endangered" subspecies.

In stepped Fish and Wildlife officials, who have been removing the pigs and eagles from the islands to save the foxes. But they won't be able to get them all, The Associated Press reports, leaving the foxes vulnerable.

The potential answer: Kill the eagles, who are apparently more "threatened" by federal bureaucrats and do-gooders than anybody else.

Of course, foxes aren't "endangered"; they are abundant throughout the United States. But by creating hundreds of "subspecies" of plentiful animals -- and identifying each "habitat" as unique -- environmentalists and others have succeeded in expanding he Endangered Species Act well beyond its intended scope.

And now, some "threatened" eagles must pay. Oh well, to make an omelet ...
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