Endangered Species: Now or Never
Many biologists believe that the earth is in the midst of the greatest mass extinction episode since the demise of the dinosaurs 65 million years ago. The current global rate of extinction is estimated at approximately 1,000 to 10,000 times that of the natural rate of extinction.
While scientists estimate that 50 million to 100 million species exist on the face of the earth, only 1.5 million have been identified. The majority of the species that are going extinct will disappear before ever being named. The removal or disappearance of just one or several species can irreversibly damage ecosystems and lead to their collapse. In comes the Endangered Species Act to the rescue...or not.
The Endangered Species Act (ESA) is one of the most far-reaching environmental laws ever created by Congress. However, an estimated 80 to 300 species have gone extinct while awaiting ESA protection. Since the statute was enacted in 1973, only about two dozen species have ever recovered to the point where they were removed from the Endangered Species list. Species are going extinct despite their protection under the ESA, and the law is seen by many as a failure.
A variety of unlikely bedfellows call for reform, from environmentalists to private property rights advocates. The ESA was described by Supreme Court Justice Antonin Scalia as capable of imposing "unfairness to the point of financial ruin...upon the simplest farmer who finds his land conscripted to national zoological use." In actuality, this so-called "pit bull of environmental laws" has accommodated the overwhelming majority of human activity and development.
Despite a variety of strong protections and stiff penalties for violating the ESA, this law continues to fall short of its target. Why? The answer seems increasingly to lie in deficiencies in the ESA's enforcement. Policy does not always relate to practice.
Delayed and Insufficient Protection
A species qualifies for listing if it faces one of the following threats: habitat loss, overexploitation, disease or predation, inadequacy of existing conservation mechanisms, or other natural or human factors. Once listed, species theoretically enjoy recovery plan development, protection from jeopardy by federal agency action, protection of critical habitat, and prohibition on take (killing, harassment, capturing, etc.). ESA violations carry a criminal penalty of up to $50,000, one-year imprisonment, or both.
As of mid-November, 1,274 species were listed as endangered or threatened under the ESA. However, at least 3,000 species are imperiled in the United States and are not protected. The under-budgeted U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) are charged with making listing determinations and implementing the ESA. The USFWS, which has jurisdiction over the vast majority of species in the United States, currently faces a backlog of about 250 candidate species.
In the last six years, the process for listing species and habitat areas has been more tedious than ever. A one-year moratorium on new listings, implemented by Congress in 1995, left the service with a backlog of listing proposals. Consequently, most species dwindle to extremely low numbers by the time they are listed, making recovery more difficult.
While ESA protections are underutilized, the exemptions from protection are overutilized. Section 7 of the ESA prohibits federal agencies from acting in a way that jeopardizes a listed species. This means that activities such as logging, grazing and mining on U.S. Forest Service and Bureau of Land Management lands are not supposed to proceed if they imperil a listed species.
However, reviews of Section 7's implementation indicate that this potential hammer of the ESA is lightly applied. Studies indicate that although the USFWS and the NMFS hold thousands of consultations each year, very few of them stop any projects. In fact, less than 1 percent (often less than 0.001 percent) of federal projects are terminated as a result of Section 7.
The ESA's provision in Section 9 against the take of endangered species has long been the subject of controversy as well, largely because of its potential importance in protecting species from habitat destruction on private lands. Like Section 7, Section 9 is potentially powerful, but has been weakly implemented.
The use of habitat conservation plans (HCPs) flourished under President Bill Clinton's Secretary of Interior Bruce Babbit and promise to do the same under present Secretary of Interior Gale Norton. HCPs allow private parties to "incidentally take" a listed species by destroying its habitat and/or killing members of the species.
One victim of a string of damaging HCPs is the Utah prairie dog. Although numerous plans have been developed which allow take of this prairie dog, the collective effect on this species is not considered. Further, the largest HCP covering the Utah prairie dog's last stronghold, Iron County, Utah, provides for the translocation of the prairie dogs, which sometimes results in survival rates of only 3 percent. In fact, the "recovery" strategy is to remove prairie dogs from high-quality habitat on private lands and relocate them to poor-quality habitat on public lands. And relocation doesn't appear to be working. Despite the relocation of over 18,000 Utah prairie dogs since 1972, prairie dog populations on public lands are only at 1,229half of the population found on public lands in 1989.
Nonetheless, fear of Section 9 has led private landowners to kill endangered species and destroy their habitat. The goal of this "shoot, shovel and shut up" policy is to avoid ESA protection.
Examples include the slashing of sea turtles' throatsallegedly by shrimpersand the destruction of one of the three last remaining populations of the San Diego Mesa Mint plant by a California developer. Both incidents were no doubt related to concern about restrictions on economic activities.
When it comes to planning for the recovery of listed species, ESA implementation is again rife with problems. For most species, recovery goals are sacrificed for economic interests. As previously mentioned, recovery for the Utah prairie dog consists of translocating these animals from quality private land to often-uninhabitable public land. Although this recovery goal accommodates private landowners' interest in getting the prairie dogs off private lands, it does not help recover the species.
Interior Department budget requests for its listing program have sunk from $10.2 million in 1992 to only $5.19 million in 1998. Agency critics argue that the listing budget should be more than $20 million. President Bush's latest proposal for a 25 percent cut in endangered species funding is being called an "invitation to extinction" by environmental activists.
From petition to listing, the USFWS estimates it costs about $120,000 for each species that is added to the endangered or threatened lists. Nationwide, more than 50 petitions have been filed in the last few months to obtain federal listings for species. If they all resulted in listing, the agency would spend more than $6 million on those petitions alone.
According to the watchdog group Public Employees for Environmental Responsibility, the Clinton administration consistently slashed its listing budget. This was done so the USFWS could argue it had a budget crisis that prevented it from listing politically contentious species as endangered.
The ESA has long been driven by citizen enforcement. The failure of the USFWS to list imperiled species has resulted in numerous lawsuits by environmental nonprofits to prod the agency to list, designate critical habitat for, and enforce protections for endangered species.
As of March 1, 2001, the USFWS was involved in 75 lawsuits covering more than 400 species, and has received 86 more notices of intent to sue regarding another 640 species. The agency has claimed it is constrained from pursuing its mandate of protecting wildlife because of the financial burden imposed by the suits.
One victim of the delays is the Alabama sturgeon. Its listing was continually delayed, largely because of debate over whether the fish had already become extinct before listing. One of the last remaining sturgeons, named Pledger, was caught and died in captivity while the USFWS dragged its feet in finalizing the sturgeon's listing.
A better known example is the northern spotted owl. The potential need to list the owl was recognized as early as 1973 on public lands in the Pacific Northwest. Research indicated the owl is an indicator species whose decline indicates the imperilment of the old-growth forest ecosystem.
The USFWS denied two petitions for the owl's listing in 1987, stalling and claiming insufficient data. Environmental groups then successfully sued the USFWS, accusing the agency of catering to logging interests. The judge on the case stated: "...the Service disregarded all the expert opinion...including that of its own expert, that the owl is facing extinction, and instead merely asserted its own expertise in support of its conclusion."
While the USFWS eventually listed the owl and provided owls with critical habitat, at every turn, the agency was sued into action. Unfortunately for the owl, its habitat was favored by loggers, who trumped timely owl protection.
Bush, Norton Attempt to Gut the ESA
This year, the Bush administration tried to curtail a key provision of the ESA that allows citizens to sue the federal government to hasten protection of imperiled species. The proposal also included barring expenditures on new court orders or settlements. If Congress had approved the change, money would have been spent on ESA enforcement in only two ways: complying with court orders and lawsuits already in effect, and listing only the species designated by Secretary of Interior Gale Norton.
Norton, in keeping with her history of disdain for environmental protection, opposes a strong ESA. Bush also nominated Bennett Raleywho advocates repealing the Endangered Species Actfor Assistant Secretary for Water and Science in the Interior Department.
Meanwhile, foot-dragging by the Department of Interior and USFWS takes up critical amounts of time, with every day of delay increasing the possibility of extinctions. Perhaps this is part of the administration's strategy: If a species goes extinct, it is no longer an administrative burden. Bush' proposal to gut the Endangered Species Act might also be fueled by his own history of breaking wildlife protection laws. During his 1994 run for Texas governor, Bush participated in a Texas dove hunt as a campaign photo-op. Bush killed a bird known as a killdeer, which is protected under the Migratory Bird Treaty Act. He was charged with a misdemeanor and fined $130. He later joked about the dead bird in his State of the State Address in 1995.
Although the Bush/Norton measure failed, it points to the fact that this law is presently enforced by citizens who choose to fight with lawsuits and would be effectively repealed if enforcement were taken away from citizens and left up to those in power.
The Black-Tailed Prairie Dog
One case highlighting the danger of leaving enforcement up to Bush and Norton is that of the black-tailed prairie dog.
A century-long campaign of poisoning started by the federal government, but carried on by ranching and development interests, has reduced black-tailed prairie dogs to 1 percent of their historic acreage. In response to this decline, the Biodiversity Legal Foundation, Predator Conservation Alliance, and National Wildlife Federation petitioned for the listing of this species as threatened under the ESA.
Predictably, the USFWS responded with a warranted,butprecluded designation, conferring candidate status on this prairie dog species. This is a tactic the agency is increasingly employing when it comes to controversial species: Recognize the species is imperiled, but cite higher priorities as an excuse for not listing it.
As a result, the black-tailed prairie dog continues to decline, facing threats from plague, poisoning, habitat destruction and shooting. Moreover, one federal agency, the USDA's Wildlife Services, continues to poison prairie dogs and dispense poisons for private use.
The black-tailed prairie dog is important not only for highlighting USFWS intransigence, but also because of its tremendous ecological role as a keystone species of the prairie ecosystem. As in building design, without a keystone, the structurein this case, the ecosystemmight collapse.
More than 200 species have been observed on or near prairie dog colonies. Not all are dependent on prairie dogs, but some striking relationships exist in this unique ecosystem. For example, the black-footed ferret is the most endangered mammal in North America and depends on prairie dogs for 90% of its diet and on prairie dog burrows for all of its shelter needs. The ferret has been the subject of intensive captive breeding and reintroduction efforts in an attempt to keep the animal from going extinct. Ferret recovery has generally failed because of a lack of large acreages of prairie dogs. Meanwhile, prairie dog colonies are destroyed, and prairie dogs are trapped or frozen to feed captive ferrets in an endless cycle of failure.
The swift fox and mountain plover are also suffering as a result of the decline in black-tailed prairie dogs. The USFWS removed the swift fox from the candidate list last year, even though the fox had not recovered in the northern Great Plains part of its range, where it is most dependent on prairie dogs. The mountain plover was proposed under the ESA after many years of lawsuits, but the USFWS continues to delay its listing. According to Jay Tutchton of Earthjustice Legal Defense Fund, protection for the black-tailed prairie dog would result in the protection of dozens more species.
Prairie Dog Lessons
With listings delayed, underenforcement of protections on public and private land, overuse of exemptions from taking, inadequate recovery planning, severe underfunding, and antagonism from the Bush administration, it is little wonder that the ESA cannot claim wild success. However, it is not the law that is flawed, but the lack of money and enforcement that are to blame.
In fact, even in its crippled state, the ESA is serving to prevent extinction. Several studies show that the decline of species is much more likely to stabilize when they are listed, and that some species should never be removed from the list, given the continued threats they face. In other words, the number of "recovered" species is not necessarily the best measure of the ESA's success. Rather, the number of species prevented from going extinct is.
Nonetheless, the effectiveness of the ESA can be improved. The key may be to protect species whose protection would safeguard other species. Two types of species which scientists support higher priority protection for are those that indicate the health of an ecosystem (indicator species), and those that provide the foundation for an ecosystem (keystone species).
Most of the species referred to in this article are indicator and keystone species, yet they have suffered from neglect at the hands of the USFWS. When the agency uses the excuse of underfunding to justify inaction on behalf of imperiled species, while claiming to support ecosystem-level protection, it should be confronted with the need to protect indicator and keystone species. Their protection would help safeguard whole ecosystems on the presently limited budget.
However, some species may fall through the cracks under the ecosystem approach. A longer-term challenge to the agency would be to demand massive reform in the implementation of the ESA. Instead of trying to make the ESA more "user-friendly" to landowners, the agency should be implementing the ESA to the letter of the law. That means prompter listings, more thorough enforcement of protections, and better recovery plans. To fund all of this, the agency must request the money that it needs from Congress.
We don't have much faith that George W. Bush and Gale Norton will have a sudden change of heart and prevent the further decline of endangered species.
However, Bush can use the cover of terrorism abroad to justify his environmental transgressions at home for only so long. In addition, Norton has recently skirmished with the press in the cases of covering up mismanagement of Native American trust funds and giving Congress erroneous data about the negative impacts of oil drilling in the Arctic on polar bears and caribou. She can't hide the truth forever, and it's our job to make sure the truth catches up with her.
The same goes for the USFWSthe extinction crisis demands vigilance and action, not continued deference to the economic interests causing wildlife to disappear from this country.
Jill Bielawski works with Rocky Mountain Animal Defense and Nicole Rosmarino is the endangered species coordinator for Forest Guardians.