ESA: a failure if species aren't delisted?
Posted August 5, 2011 in Saving Wildlife and Wild Places
On March 7, 2011, the 9th Circuit Court of Appeals heard a case, Greater Yellowstone Coalition v. State of Wyoming, case number 09-36100, involving the 2009 decision by Judge Donald Molloy to restore endangered species protections for the Yellowstone grizzly bear population. Key reasons for relisting included the threats to whitebark pine, a key grizzly bear food source, and inadequate regulatory mechanisms to manage the grizzly bear should federal protections be removed.
On the issue of regulatory mechanisms, the federal government’s attorney said to the 9th Circuit panel: “the requirement of judicially enforceable standards and regulations before endangered species may be delisted is to set an impossibly hard standard that will never likely be met. And because success in the Endangered Species Act is measured by removals, this would assure that the Act would be deemed a failure.”
What? Did I hear that right? I went back and listened to the audio recording several more times before I’d been satisfied that the quote was correct.
One does not have to be an expert on the ESA to know that the purpose of the Act is not removals of species from the endangered species list per se, but recovery of imperiled species. And the Act has proven to be enormously successful in reversing declines in species numbers and improving their prospects. Approximately 93% of the species on the list are stabilized and or improving, due to the medicine and tender loving care offered by the Endangered Species Act. Key ingredients to the improvement of the status of endangered species under the protection of the ESA include the application of the precautionary principle, the requirement to use the best available science in decision-making, and the prohibition against killing or harassing endangered species.
In the case of Yellowstone’s grizzly bears, the ESA has been vital to maintaining a population that was nearing extinction by the mid 1970s. After listing, the government cleaned up the massive garbage problems in Yellowstone Park, which reduced the habituation of bears to human foods—a pattern that often leads to grizzly deaths. The Forest Service negotiated with sheep growers to move domestic sheep out of the core grizzly habitat, thereby removing another source of grizzly conflict and bear mortality. Hundreds of miles of roads were closed on public lands to improve the security of key bear habitat. And the grizzly population grew from perhaps as few as 200 bears to somewhere between 400 and 600 animals today. So, by any reckoning, the Yellowstone grizzly bear story is an ESA success.
The fact that the Fish and Wildlife Service (FWS) places such great emphasis on “removals”, rather than continued survival or growth of protected populations, is testimony to a decade’s long political siege against the agency by development interests that seek to exploit habitat used by imperiled species. Sadly, the U.S. Fish and Wildlife Service’s (FWS) understanding of its mission has been twisted and subverted after years of hardball political pressure, especially when it comes to species that use a lot of habitat, like grizzly bears and wolves. The agency charged with implementing the act has increasingly internalized what its opponents have been saying: that the ESA is a failure if species’ legal protections aren’t removed.
The FWS has been, in great measure, captured by the development interests that it is charged with regulating. (There is an exception, of course for species that don’t take up a lot of space, or are not contentious, like whitebark pine.) This pattern is not unlike the domination of another Department of Interior agency, Mineral Management Service, by the oil industry prior to the BP’s disastrous spill in the Gulf of Mexico last year. Like other agencies, FWS is prone to self censor what is says and does because of what it fears Congress might do to its programs; what the Act requires and what is in the service of the broader public interest can be of lesser concern.
That is why conservationists have had to take their concerns to the courts to save species and the ecosystems they depend on. It is why too, that litigation brought by conservationists has been, in general, very successful. The delisting of the Yellowstone grizzly bear is a classic example. The agency ignored overwhelming evidence that the bear’s key food was in deep trouble, and it failed to ensure that mechanisms were in place to maintain a healthy population after delisting. The federal attorney’s argument that FWS could not delist species if it had to have legally binding standards in place is yet another reminder that FWS does not want to have to do its job under the ESA, and that the role of watchdog groups is vitally important.
What FWS needs, now more than ever, is protection against political intervention by development interests. It needs too, a refresher course on its mission: to protect and restore imperiled species and the ecosystems they depend on. And it needs new, young people who are not hardened by decades of tough-minded political pressure, but who believe that the purpose of government is to protect the public interest and those that have no votes or voice in Congress.
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Comments
John Lopresti — Aug 8 2011 07:05 PM
Characterizing the Forest and Wildlife Service's stewardship goal as "removal" from the Endangered category is, indeed, the sort of rhetoric the least environment-aware presidents have espoused. One champion in the US House of Representatives from CA was put to shame in a recent reelection attempt because of his penchant for that very way of misinforming the citizens of what government oversight can do.
Retrospectively, of course, if a species graduates to a stable sustainable population, and is de-listed, it is another success story.
However, in reviewing case documents for matter 09-36100 found at earthjustice and elsewhere, there is no transcript of the taped audio presentation from March 7 to which Ms.Willcox has linked. Further, I continue to look for any publicly published opinion from the judge following the March 7 arguments.
I think the critique in the post indicting FWS with hardball politics management thru-out an entire decade might be difficult to document, though I am prepared to do some of that research.
I recall a UCS survey of government employed scientists during the Bush administration in which thousands of respondents reported their work was doctored. Beyond that broadly painted discrediting of government science at that moment in time, it becomes more elusive in the present tense, to identify how political overlords continue denaturing of solid biology fieldwork and opinions.
I wonder if Ms. Willcox can offer a few additional links to coroborate the claim about FWS.
I know, locally, sometimes I appreciate FWS' having stepped in to halt the venal politics of county and regional government entities which have seemed too hasty in supporting polluters and ignoring wildlife balances, as I live in a part of the US which only recently transitioned from one party's holding the governorship to now the other party' having won every statewide elective office in a seachange election in 2008. We continue to emerge from a political blanket of environmental misinformation, although we have a long tradition of solid environmental agency performance statewide.
So, what more do you have about FWS? That audio clip from March 7 seems pretty abbreviated as a basis for characterizing the degradation of the protective responsibilities of a national wildlife management service.
Addendum: while I, too, long have known of the occasional overhastiness of 'MMS', I recently was reminded in a Beinecke article about Shell's new carte blanche permit for Beaufort oil exploration that one of the first things the government did after the Deepwater Horizon multimillion gallon Gulf of Mexico spill of oil last year was to alter the longstanding name MMS, now making it "Bureau of Ocean Energy Management, Regulation and Enforcement ". i suppose the lawyerly political theory of the name change might be that the new name for the same agency confounds search results and imputes a limpidly clean record for the newly minted bureau, which probably is actually the same old MMS.
Louisa Willcox — Aug 12 2011 01:53 PM
Dear John,
Thank you for your thoughtful response to my post of last week. Here is the link for the oral argument -- I hope it works for you now.
Here also is Judge Donald Molloy’s ruling of 2009 that restored the grizzly bear protections, as a result of threats to habitat and inadequate regulatory mechanisms post-delisting. This is worth the read: Judge Molloy made a very clear case about how FWS’ delisting rule was defective in its failure to assure legally binding post-delisting regulations which was the topic of the quote I used from the 9th Circuit oral argument.
Here is a link to a report by Professional Employees for Environmental Responsibility called Grizzly Science, where in a number of government employed scientists were discredited because of the work they did that had conservation leanings (i.e. advocating closure of roads to protect bears, protection of security habitat, etc). Not much has changed since this report was written.
There is a long-standing tradition of the U.S. Fish and Wildlife Service, in the case of the Yellowstone grizzly bear, of overstepping its boundaries to “stick to the science”, advocating deliberately for the delisting of the grizzly bear despite the sound science on the threats to key foods, and going so far as twisting the science to suit FWS’ delisting goals, as Judge Molloy pointed out. This issue is also discussed in a book written by Todd Wilkinson called Science Under Siege. A more recent book by Susan Clark goes into great detail on the regions the federal government has been captured by parochial interests in the management of the Greater Yellowstone Ecosystem.
It is of note that 237 scientists who wrote a letter to U.S. FWS opposing delisting which I will send to you separately.
Here are a few excerpts from other comments submitted on the grizzly bear delisting rule in 2006, so you can see that the arguments about politicized science in the context of grizzlies are not new:
Charles Redpath, scientist, Bozeman, MT: “by delisting grizzly bears this time, you (Dr. Chris Servheen) would not only be betraying the bears, you would be betraying sound science”.
“Like so much policy-making by this administration, the proposal is based on ideology and politics ignoring the best scientific information”. Ken Alby, professor emeritus, department of biological science, University of Albany, New York.
The Society for Mammalogy and the Society for Conservation Biology also opposed delisting, because of its failure to protect habitat and failure to consider threats such as the loss of whitebark pine and cutthroat trout.
I have a lot of documentation from the last 25 years, and I would be happy to e-mail this to you privately, depending on how much material you are interested in.
Thanks again for your interest.
Sincerely,
Louisa