The Endangered Species Act --
THROW IT OUT, REVISE IT, OR JUST KEEP IT?
By Kelly Andersson
The cornerstone of species protection in the United States is a 23-year-old law known as the Endangered Species Act (ESA). It's up for re-authorization, and faced with a formidable line of both tenured and junior Republicans in Washington who would like to ditch it, gut it, or at least cut it down to what they see as a manageable size.
Their problems with the ESA center on two chief areas: Economics and science.
Opposition to the restrictive nature of the ESA has long swirled around the economic costs of protecting a species. Small woodlot owners fear that protection of forest species such as the spotted owl and marbled murrelet will prevent their harvest of the timber they thought they owned. Small logging operations and mills in the Pacific Northwest have suffered economic hardship or even bankruptcy from the species-protecting decisions handed down in federal court cases initiated by environmental groups. Large-corporation timber interests, however, who have made the most noise about economic ruin, have in recent years enjoyed record profits.
Another objection to the ESA is the property rights issue. Though legitimate questions and legal problems regarding the property rights of citizens under the authority of the ESA do exist, the bulk of this criticism is really objections over potential economic loss disguised as a property rights issue. Owners of private property fear, and sometimes justifiably so, that their right to the peaceful and presumably profitable enjoyment of their property is threatened by government regulations and legal decisions over which they have no control. Some owners of private property in this group are the same large-corporation timber interests mentioned above -- more Oregon timber was harvested on private land than on national forests in five of the ten years between 1980 and 1989.
These two broad groups, but especially the timber industry, are major financial contributors to many of the lobbyists and members of Congress who now advocate trashing the ESA. A major argument against the ESA is its alleged cost to the affected regions.
Ironically, the economic effects suffered by the large corporations in the timber industry have been record earnings. The real economic costs have been borne by the small operators -- the father/son logging outfits, the family-owned mills, the independent fallers and truck drivers, the employees of shut-down mills, and the other small-town rural residents in areas previously heavily dependent on the timber resource.
The employment picture hasn't been as dreary as the timber industry predicted, either. Though it's true that industry employment numbers have declined, those lost jobs have been more than made up for in other areas. Oregon's shown a net gain in jobs through the forest conflict, with considerable gains made in high-tech industry and tourism.
The economic arguments against species protection are offset by the economic arguments in favor of species protection. Incoming industries, for example, always cite the "quality of life" of the Pacific Northwest as an attractive factor -- including air and water quality, recreational opportunities, and scenic beauty.
Bad Science?
Another recurring objection to the ESA is that it's based on faulty scientific evidence, or incomplete scientific information or research.
First of all, the very nature of research implies that's it's incomplete -- it's on-going. Industry protests over the spotted owl conflict were long and loud in their claims that the government's figures on owl numbers were flawed. They pointed with glee to the most recent estimates of numbers of breeding pairs of owls within habitat areas, and claimed that because those numbers had increased protection was unnecessary.
Here's an explanation for the simple-minded. If you ask me how many earthworms are in my backyard garden, I might guess that 100 worms live there. If, however, the next day I go out there and do a serious search, I find 150 worms. Because, at that point, you and I really want to know, I get serious and go out there and count all day and into the night. Now I estimate that there are perhaps 275 worms in that garden. Because the numbers have become a real issue, the next day I hire six 10-year-old boys to help me count, and we find 482 worms.
Does this make my first estimate wrong? Does it make for bad science? Of course not -- it's just the nature of scientific research. I'm always amused when I hear the critics of wildlife management and forest management agencies claim that management decisions are based on bad science. People don't seem to consider the medical profession evil and incompetent for what it didn't know twenty years ago, but you'd think the Forest Service was surely possessed by the devil for what it didn't know twenty years ago.
What are we protecting?
Another major objection to the ESA is its focus on species protection, and this objection, unlike the "bad science" argument, does have some validity.
The stated purpose of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."
Though the use and function have focused on one species at a time, what the ESA says it conserves is ecosystems. It attempts to conserve those ecosystems by identifying and developing recovery programs for individual species that are in decline. Critics say that this is an inefficient way to protect both individual species, the ecosystems, and related species in those communities.
No one would argue that the process has been inefficient. It's also incredibly complicated and at odds with itself -- many of the related laws and regulations and processes conflict with each other.
When a species such as the Dolly Varden (bull trout) is listed under the ESA, the management agency (Forest Service) of the habitat in which that species is found must develop and institute, through the National Forest Management Act (NFMA), a recovery plan intended to maintain enough habitat for enough members of that species to survive in order for the species to recover.
Recovery plans themselves are incredibly complex. Section 4(f) of the ESA directs the Secretaries of Commerce and Interior to develop recovery plans for endangered or threatened species, and to coordinate efforts among "state, tribal and federal agencies, academic institutions, private individuals and organizations, commercial enterprises, and other affected parties."
The management agency developing the plan must:
- Diversify areas of expertise represented on a recovery team
- Develop multiple species plans when possible
- Minimize the social and economic impacts of implementing recovery actions
- Involve representatives of affected groups and provide stakeholders the opportunity to participate in recovery plan development, and
- Develop recovery plans within 2 1/2 years after final listing
No problem, right?
Consider just some of the factors that must be taken into account in preparing a recovery plan:
"The method to be used for recovery plan preparation shall be based on several factors, including the range or ecosystem of the species (limited vs. extensive), the complexity of the recovery actions contemplated, the number of organizations responsible for the implementation of the recovery tasks, the availability and expertise of personnel, and the availability of funds. Outside expertise in the form of recovery teams, other federal agencies, state agency personnel, tribal governments, private conservation organizations, and private contractors shall be used, as necessary, to develop and implement recovery plans in a timely manner that will minimize the social and economic consequences of plan implementation."
"Team members should be selected for their knowledge of the species or for expertise in elements of recovery plan design or implementation (such as local planning, rural sociology, economics, forestry, etc.), rather than their professional or other affiliations. Teams are to be composed of recognized experts in their fields and are encouraged to explore all avenues in arriving at solutions necessary to recover threatened or endangered species. Factors for selection of team members are (1) expertise (including current involvement, if possible), with respect to the species, closely related species, or the ecosystem in which it is or may once again become a part, (2) special knowledge of one or more threats contributing to the listed status of the species and (3) knowledge of one or more related disciplines, such as land use planning, state regulations, etc. The Services also will select team members based on special knowledge essential for the development of recovery implementation schedules, particularly development of Participation Plans that are intended to minimize the social and economic effects of recovery actions. Teams should include representatives of State, Tribal, or Federal agencies, academic institutions, private individuals and organizations, commercial enterprises, and other constituencies with an interest in the species and its recovery or the economic or social impacts of recovery."
Sound complicated? It gets worse. After that's done, one group or another (let's say the Associated Flyfishermen of Trout County) brings suit against the Forest Service because it's allegedly not doing enough to protect the trout, or it's allowing logging in an area the group thinks should be off-limits. Then the Loggers of Trout County get in on the suit because they think that too many areas in the trout's range are now off-limits. One way or the other, the judge finds that the Forest Service is not in compliance with the NFMA or the ESA. Complicated, yes, but it gets worse. Now throw the Environmental Protection Agency into the arena, and consider that the Forest Service must also be in compliance with the Clean Water Act and the Clean Air Act, then you tack on the Salvage Logging Rider, requiring the Forest Service to sell even more timber than it had planned before. Then you consider that upstream of this area, more bull trout are determined to be threatened, but now they're not on Forest Service land -- this section of the river runs through BLM land. Two different agencies, two species, two recovery plans, one body of water -- and now you throw in another federal act -- the NFMPA, which the BLM operates under. Add one more twist with the National Environmental Policy Act (NEPA) and you begin to understand why the Pacific Northwest has been tied up in such a storm of controversy over endangered species in its forests.
As Forest Service Chief Jack Ward Thomas explains it, the process is nearly impossible. "You have owl plans overlaid with salmon plans, overlaid with murrelet plans, and if you pursue them all, you just bring yourself to a stop." A long-time advocate of ecosystem management, Thomas headed up the Forest Ecosystem Management Assessment Team (FEMAT), a collection of the nation's top experts who, under direction from President Clinton, drew up all the options for management which eventually resulted in Option 9 and Clinton's Forest Plan.
According to Thomas, the various laws are so intertwined that they can't be considered independently. FEMAT attempted to weave them together into a workable management plan for Pacific Northwest forests, but even that was dragged into court, questioning the feasibility of FEMAT and the legality of ecosystem management. Judge William Dwyer's 9th Circuit Court of Appeals decision stated that ecosystem management is not only legal, it's mandatory.
But the ESA does work
Despite the mind-numbing complexity of the process, the ESA does have a number of success stories to show for itself. The recovery and de-listing of the bald eagle, probably the most visible and well-known success, is but one of a long list of success stories achieved by the ESA since its authorization.
Though it involves a complicated and expensive process for maintenance and conservation of species (and ecosystems), the ESA's focus on individual species should not be scrapped. In theory, preserving an ecosystem sounds smarter than the mess we're faced with now. It seems logical that protection of, say, the high desert area in southeast Oregon would be less complicated than trying to protect -- one at a time -- the gejillion various species in that area. But how do you do it? Where are the edges of that ecosystem? Along roads? State lines? The national forest boundaries? It's difficult for even the leading experts to say where one ecosystem ends and the next begins, and there's a lot of overlap. It's far easier to map the home range of one species of rabbit or bird who lives there. An individual species gives us a marker with which to look at its habitat. The Borax Lake Chub and Lahontan cutthroat trout either live in a body of water or they don't.
Another reason to retain the species function of the ESA is the role served by an indicator species. The northern spotted owl is one such species, probably the one most familiar to us. What's less familiar is how an indicator species functions in terms of ecosystem health assessment. Here's a simplified example for illustration:
Let's say that the pileated woodpecker is an indicator species in the mid-elevation pine forests of the Blue Mountains in eastern Oregon. Let's say that population surveys in the Starkey area over the last 10 or 15 indicate that for every pileated woodpecker we can count up there in that wildlife unit, we know that there are also known numbers of other species. For every dozen woodpeckers, there are 125 elk, 78 mule deer and 13 whitetail deer, one wolverine, 28 badgers, 2 cougars, 19 bobcats, 32 black bear, 5 bald eagles, 9 red-tailed hawks, 7 pygmy owls, and 43,000 porcupines. Okay, I made up some of the numbers, but you get the idea.
Here's the indicator species at work: If I go up there this fall and count 12 woodpeckers, and last year at the same time, in the same area, I counted 17 woodpeckers, and the year before that we had 23 woodpeckers, then we know something is very very wrong. Indicator species are not just randomly picked -- they are THE species within an ecosystem that best represents not only habitat conditions but also overall populations and health of all the other species there. Simply put, if the indicator species is doing well, the ecosystem is doing well. If the pileated woodpecker in the Starkey unit is showing serious decline, then bad things are happening in that forest area.
The significance of the listing of the northern spotted owl is not so much a question of declining owl numbers. It's the status of the entire ecosystem in which the owl lives -- Pacific Northwest old growth forests -- that's significant.
One argument in favor of preserving the species approach of the ESA is made by considering that recovery plans designed to protect a trout also happen to be very effective at protecting the stream in which the trout lives. Logging restrictions enacted to protect what seems to many people to be merely a cute brown-eyed owl also happen to be very effective at protecting the health of the forest where the owl lives. It's difficult, time-consuming, and expensive to design a recovery plan for an owl, but a recovery plan for a forest would be far more complex.
The dire predictions of a Northwest Appalachia haven't happened, and they won't. The science isn't "bad." The ESA is working -- most Americans support it, and no one can argue the evidence indicating that it's brought species back from the brink of extinction. It is indeed a complicated law, and its implementation and enforcement are inextricably interlaced with several other conflicting laws. It's an expensive law to deal with, but not nearly as expensive as the timber industry claims.
Though modifications might very well improve the ESA and make it more functional and less complicated, its benefits clearly outweigh its problems. If Congress and the courts and our experts in the fields of science and politics and economics can't agree on changes, then the Endangered Species Act should be retained in its present form. We have no other choice.
