Endangered Law
By Ted Williams

"When the last individual of a race of living things breathes no more, another heaven and another earth must pass before such a one can be again."
— naturalist-explorer William Beebe

Ted Williams is Editor-at-Large of Audubon magazine and conservation editor of Fly Rod & Reel.

The Endangered Species Act of 1973 was an awakening--humankind's first serious expression of an ecological conscience and its first and, so far, best major effort to preserve the planet's genetic wealth. The law has been a beacon for the world, inspiring nations and global communities to enact similar statutes, most notably the Convention on International Trade in Endangered Species.

The ESA has been hugely successful because it has teeth; and because it has teeth it has come under vicious and prolonged attack by the development interests it inconveniences. Since 1978, when Congress hatched the "God Squad"--a committee empowered to sacrifice species it deems nonessential--the ESA has survived unscathed. But now a two-pronged attack by Congress and the administration threatens to bring it down. Last September, Rep. Richard Pombo R-CA)--a developer posing as a rancher posing as an advocate of the public good--prevailed on the House to pass his "Threatened and Endangered Species Recovery Act," basically a repeal.

The Bush administration's assault has been more artful and, ultimately perhaps, more effective. For example, listing species is something it doesn't do on its own volition. The administration of George H. W. Bush listed an average of 58 species per year. The Clinton administration listed an average of 65 per year--this despite a one-year listing moratorium sponsored by Senator Kay Bailey Hutchison (R-TX). The George W. Bush administration has listed an average of 8 for a total of 40. Thirty-eight of these listings were in response to court action, one in response to threatened court action, and one in response to a citizens' petition.

Shortly after taking office the president reneged on his campaign promise to reduce carbon emissions. He then reneged on the nation's commitment to the Kyoto Protocol, an international treaty to deal with global warming--a threat to thousands of species. More recently, the administration has forbidden NASA scientists to inform the public about strong links between climate change and greenhouse gases.

In 2001 Interior Secretary Gale Norton, who as Colorado's attorney general had tried to prove in court that the ESA was unconstitutional, ordered the Fish and Wildlife Service to insert the following disclaimer into all ESA-related press releases: "Designation of critical habitat provides little additional protection to species." Two years later she suspended designation of critical habitat.

The administration's notion that plants and animals don't need places to live was painfully evident in 2002 when, to appease irrigators, the Bureau of Reclamation dewatered the Klamath River in southern Oregon and northern California, thereby killing 33,000 chinook and coho salmon (the latter threatened), and further imperiling two species of endangered suckers. Those who blamed the administration were accused by Steve Williams, then director of the Fish and Wildlife Service, of a "premature rush to judgment." And he went on to proclaim that it was "too soon to draw conclusions" about what might have caused the biggest dieoff of adult salmon in history--roughly the equivalent of a parachute manufacturer suggesting that skydivers scraped from asphalt might have died on the way down from bird flu.

Even as Klamath salmon were expiring the administration was jeopardizing four endangered fish and a world-class trout fishery on Colorado's Gunnison River by giving away federal water rights.

That same fall Interior had declined to appeal a bizarre court ruling that cancelled the water right of Deer Flat National Wildlife refuge in Idaho, a refuge dedicated to waterfowl and important to listed species.

Where Pombo and his allies have attempted frontal assaults, the Bush administration has favored flanking maneuvers. Consider Interior's machinations with the threatened marbled murrelet which nests in old-growth rain forests of the Pacific Northwest. When the timber industry sued Interior in an effort to get the bird delisted the administration declined to defend, and the Fish and Wildlife Service initiated closed-door negotiations. It then bypassed its own scientists, whose data the timber industry didn't like, and hired consultants to do a "status review." But the consultants also came up with the "wrong" answer--that ESA protection was entirely appropriate. With that, Interior rewrote the report, reversing the findings.

Presiding over the rewrite was assistant secretary for fish and wildlife and parks, Craig Manson, who boasts that his administration has "reduced critical habitat in some areas by 90 percent" and submits that extinction might be okay. "If we are saying that the loss of species in and of itself is inherently bad, I don't think we know enough about how the world works to say that," he told the Los Angeles Times. And in an interview with Grist magazine, he questioned the "orthodoxy" that "every species has a place in the ecosystem and therefore the loss of any species diminishes us in some negative way."

Federal agencies that permit or undertake development in the habitat of a listed species must consult with the Fish and Wildlife Service or the National Marine Fisheries Service (NMFS) to determine if that species will be jeopardized. If a "jeopardy opinion" is forthcoming, the service or NMFS must suggest "reasonable and prudent alternatives" or advise that the project would violate the ESA. To circumvent this inconvenience, the Bush administration has proposed "self-consultation" by agencies like the Forest Service which are controlled by interests they're supposed to regulate and have scant capability of assessing risks to fish and wildlife.

Moreover, Fish and Wildlife Service Florida Panther biologist Andy Eller reports that he's been told by his superiors that the administration has forbidden jeopardy opinions for any species no matter what. Eller was ordered to put a "positive" spin on his biological opinions about development in endangered panther habitat. When he refused he was taken off panthers, harassed, and suspended.

On November 30, 2004, NMFS issued a biological opinion that the eight main-stem Columbia and Snake River dams, which are in the process of eliminating 27 threatened or endangered salmon and steelhead stocks, don't count as fish killers because they were built before ESA enactment and are thus part of the natural environment, like waterfalls. It was an astonishing, unlawful action which contravened ESA's plainly stated recovery mission. But when the scientific and environmental communities expressed outrage NMFS flack Brian Gorman declared that paperwork--not results--is all that's required of his agency: "The Endangered Species Act does not mandate recovery; it mandates a recovery plan."

Then, on June 16, 2005, NMFS announced a policy to count domestic salmonids raised in hatcheries as wild fish when determining whether or not a stock requires ESA protection, thereby tossing out all scientific data, including its own. Who needs clean, free-flowing rivers when you can mass-produce fish in concrete troughs?

On February 21, 2006 the Fish and Wildlife Service announced its decision not to list the Yellowstone cutthroat trout as threatened, despite overwhelming evidence from its own scientists that the fish is on the way out. Yet only 10 months earlier it had seen fit to jeopardize one of the last strongholds of Yellowstone cutthroats by repealing the Clinton-era protection for roadless areas greater than 5,000 acres--the most popular initiative in the history of federal rulemaking.

This has allowed exploratory roads to be hacked into the Sage Creek area in Idaho's Caribou-Targhee National Forest for possible expansion of J.R. Simplot Company's phosphate strip mine, a major Superfund site spewing trout-killing selenium into tributaries of Crow Creek and the Blackfoot River. Concurrently, the administration is proposing to replace the waterborne selenium standard of 5 parts per billion with the far laxer fish-tissue standard of 7.91 parts per million. According to Interior's resident selenium expert, Dr. Joseph Skorupa of the U.S. Fish and Wildlife Service, "the proposed tissue standard would mean 50- to 90-percent mortality for cutthroat trout."

Brock Evans, former Sierra Club staffer and now director of the Endangered Species Coalition, attributes the ESA's longevity to its "nobility and high-mindedness." And he offers this thought: "Thirty-three years ago our lawmakers got together and said: ‘We're not going to let another living thing go extinct in this nation or anywhere on this planet, if we can help it.' That's pretty impressive."

Indeed it is. And what's also impressive is that, despite the perceived inconveniences of the ESA, 86 percent of Americans want to preserve it and keep it strong. As a nation we loathe the thought of extinction. The ESA reflects America at its very best. It does not consider "value" or "usefulness" or human concepts of "beauty" and "magnificence." With it we affirm our civility, our unselfishness, our democracy.

Call your Senator-tell them to dump Rep. Pumbo's "Threatened and Endangered Species Recovery Act of 2005 " (H.R. 3824), it should be titled "Death to Endangered Species Act"