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Public Lands Foundation
Position Statement:
2010-15
Endangered Species Act Amendment
August 27, 2010
Executive Summary
Amid widespread continuing support for the
goals of the Endangered Species Act of 1973 (ESA), there is a broad-based
concern that the implementation of the act is generally inefficient and
has fallen far short of achieving all of its intended purposes. The Public
Lands Foundation (PLF) believes the ESA must be amended, and Federal
Regulations for implementation of the Act modified. This must be done so
that the Federal public land agencies can, with appropriate budget support
and in cooperation with the States and public land users, efficiently and
effectively manage the public lands and resources under the principles of
multiple use and sustained yield, which includes responsible care for
endangered species and the ecosystems in which they exist.
Background
In January 1999, the Public Lands
Foundation issued a Professional Perspective Paper on the reauthorization
of the ESA. That paper proposed a number of changes in the law, its
enabling regulations, and procedures.
PLF’s 1999 recommendations emphasized the
need to focus on ecosystem and bioregional habitat protection rather than
on single species management; the importance of realistic multi-agency
planning for recovery at the time of listing; the need for harmony between
the ESA, NEPA, and Federal Public Land Laws; and the critical need for
cost-effective strategies that could lead to actual species recovery.
Those recommendations, as yet unrealized, are still valid.
The Public Lands in the National System of
Public Lands administered by BLM are, among their many values and uses,
important living places for many threatened and endangered species.
Planning for and managing the habitat of these species is a significant,
and often frustrating effort for BLM because of the conflicting public
interests and procedural difficulties involved in decisions where
endangered species are affected. There are presently about 400 listed
threatened and endangered species found on the Public Lands. There are an
additional 1,500 “sensitive species” found on Public Lands, some of which
may be potentially listed species. BLM is involved in more than 200
Recovery Plans and in more than two dozen Candidate Conservation
Agreements, some of which, like the Desert Tortoise Recovery Plan, affect
decisions on millions of acres of Public Land. There have been
innumerable appeals of BLM decisions filed related to ESA matters, and
there are numerous law suits affecting BLM filed with federal courts that
involve ESA issues.
Discussion
The intent of the ESA is to identify
species that are threatened with extinction, and to take action to manage
those species and maintain their habitat so as to avoid extinction. The
difficulties with implementing the ESA arise from two fundamental reasons:
habitat ownership and species subdivision. The frustrations that attend
implementation result from a failure to recognize and meet its costs, and
the inadvertent creation of a procedural and legal quagmire.
Habitat Ownership
Much of the habitat important to the
conservation of listed endangered species is privately owned. The issues
that result from conflicts between private property rights and endangered
species habitat protection are recognized and should be addressed in
revising the ESA. This paper is concerned primarily with the management
of the Public Lands administered by BLM and is equally applicable to the
National Forest lands. Unlike private lands, the provisions of the ESA
are applicable to all decisions regarding the use or management of the
Public Lands. However, as a matter of law and public policy these Public
Lands are mandated for a wide variety of multiple uses. These include
commodity production, minerals, timber, livestock, recreation, hunting,
fishing, camping, exploring by foot or vehicle, amenity protection,
wilderness, scenery, cultural, and fish and wildlife habitat management.
All of these values and uses must be considered and provided for in Public
Land management decisions under a sustained yield approach that gives no
absolute priority to any one use, but to the combination of uses that
assures the conservation of resources for public use and enjoyment over
time. The ESA, on the other hand, gives absolute priority to listed
species and their habitat over any other uses or values, which creates a
complex legal dichotomy for those who must make public land management
decisions. If a responsible recovery plan based upon peer-reviewed
science and reasonable social and economic analysis were required at the
time a species was proposed for listing, it would go a long way to
resolving this dilemma. Species listing should result from, not precede,
recovery planning. Where essential habitat for the proposed species is on
public land, the appropriate agencies must be full partners in the
analysis and planning process.
Species
Subdivision
The degree to which population segments,
environmentally significant units, and other sub-species taxonomic
distinctions have come to complicate the ESA was not anticipated when the
Act was passed. The idea that some populations of a species of animal or
plant should be given absolute protection from take or habitat
modification while other populations of that same species clearly do not
need that protection overextends the legitimacy of the ESA’s draconian
legal power. The ESA has served magnificently in raising the public
understanding of the essential importance of healthy habitat for the
survival of wild species, as well as the concepts of ecosystems and
biodiversity. What was not realized at the time of its passage was the
extent to which the ESA would be used by interest groups as the ultimate
tool to stop land management practices they opposed. Timber harvests
have been blocked by spotted owls, housing developments by butterflies,
and dams by snail darters. Where the existence of an entire species is
immediately at stake, the power of the ESA in the decision process may be
necessary. But, where that is not the case, particularly where a species
as a whole is not in terminal jeopardy, the ESA should provide for a more
balanced role in a public decision process.
Realistic Budgets
The evident fact that Federal budgets do
not come close to covering the costs of implementing the ESA demonstrates
that we have bitten off more than we can chew. The responsible Federal
Agencies, the Fish and Wildlife Service (USF&WS) and National Oceanic and
Atmospheric Administration (NOAA) Fisheries, are hopelessly under-funded
and understaffed for the task. Other Federal agencies such as BLM are
spending far more than they have Endangered Species budgets for in
planning, analysis, appeals and litigation related to listed species in
order to try to carry out their other mandated responsibilities. State
fish and wildlife agencies are similarly stressed by the ESA with totally
inadequate financial support from the Federal budget. The national budget
situation would indicate this is unlikely to change in the foreseeable
future. What this means is that the ESA and its regulations must provide
for a responsible prioritization of resource expenditure. Unrealizable
expectations and demands can only result in a growing level of antagonism
toward the ESA and its otherwise praiseworthy goals.
Procedural Problem
The ESA and its regulations are structured
today in such a way as to assure that major endangered species decisions
are being made in the courts at a huge expense to the public agencies
involved, the general public, and the courts themselves. The only visible
result is a significant cut into resources that could better be spent on
the ground in support of projects and activities that actually might help
in the recovery of some species. A clear example is the petition process
for listing, which, if not responded to as desired by the petitioners,
leads to litigation, the result of which may well be the listing - without
a recovery plan or even the information to develop a reasonable recovery
plan - of a species or population which, regardless of its merits, cannot
hope to receive a priority for costly recovery efforts in any time
certain. On top of this is the requirement for the designation of
“Critical Habitat” before recovery planning is undertaken. Often this
means that the USF&WS and NOAA Fisheries propose such designations, under
threat of litigation if delayed, by a staff biologist’s best guess based
upon no firsthand knowledge of the territory. Combined with the present
definition of critical habitat as essentially all habitat presently
occupied, historically occupied, and even potentially occupiable, this
often means that such designations affect many thousands of acres of
public land. Furthermore, recovery plans are often not developed for many
years after listing a species, and those plans, as well as consultations
and opinions, often fail to focus on specific and reasonable actions that
can do the most, with realistic means, to recover the listed species. The
resulting additional procedural burden before any use, management, or even
protection decisions can be made is immense, and the result is either a
failure to act or action immediately halted by appeal and litigation.
The Federal public land management agencies already have complex
collaborative public planning processes which, coupled with National
Environmental Policy Act and other environmental protection requirements,
are consuming major portions of the agencies’ budgets. The additional
process requirements of the ESA and its regulations, as presently
constructed, create situations in which appeals and litigation, or the
threat thereof, can bring sound and needed professional land management
decisions to a grinding bureaucratic halt.
The PLF supports the purposes of the ESA,
“…to provide a means whereby the ecosystems upon which the endangered
species depend may be conserved, to provide a program for the conservation
of such endangered species…”
The PLF specifically recognizes the BLM’s
major role in achieving the purposes of the act. The Public Lands under
BLM jurisdiction include a significant portion of the habitat in the
western United States and Alaska that are key to maintaining or returning
species to healthy populations. BLM also has the scientific skills,
policies, procedures, regulation and mission to support the ESA. What BLM
does not have, nor will ever have, is the funding that would be required
to carry out the provisions of the ESA and its regulations as presently
constituted.
The PLF believes the wise management of
habitat, ecosystems and bioregions will achieve the purposes of the ESA;
much more so than the present focus on individual species, or
sub-populations of species. Wise management across widely varying
landscapes and land ownerships can only be achieved through a cooperative
and collaborative process. The answer for public land agencies and for
the States is for the ESA to recognize and require counterpart regulations
under which those agencies and the States, with full technical and
scientific competence, can implement the ESA directly without the
interminable delay and bureaucratic avoidance processes that are currently
bogging down effective implementation of the Act. ESA amendments must be
designed to eliminate as far as possible the appellate and litigate
bottlenecks created by the ease with which the ESA can be used in pursuit
of broader social or environmental goals. This must be coupled with the
kind of incentive based system that will bring private landowners into
willing partnership in achieving the purposes of the ESA. The PLF
believes that the ESA will only be truly effective when a widely supported
cooperative process replaces the present conflict-laden approach.
Rescission of Decisions
Over the last several decades, various
Administrations have made what appear to be arbitrary decisions to rescind
regulations, critical habitat designations, recovery plans and other
actions taken by a previous Administration. Two recent examples are the
rescission of the final rule amending regulations governing interagency
cooperation under the ESA and the final rule for designating critical
habitat for the northern spotted owl.
These examples, as others in the past, had
undergone a lengthy, exhaustive public input process before final
rulemaking decisions were made. To rescind final actions with little or
no explanation and without further public input is an injustice to the
previous decision-makers and the public in general. And, it ignores the
countless hours, months and years of agency and public involvement that
went into the decision-making process. The PLF believes that an amendment
to the ESA should include provisions that require the Administration to
provide an open and public process before final decisions are rescinded.
Support for Reform
The PLF is only one of many organizations
recognizing the value of an effective Federal Endangered Species law with
efficient and constructive implementing regulations. The PLF suggests
that close attention should be paid to the reform recommendations made by
two important organizations: The Western Governors Association (WGA) and
the International Association of Fish and Wildlife Agencies (IAFWA).
PLF Position
The ESA and its implementing regulations
should be amended to:
1. Establish petitioning
requirements including scientific standards, peer review, and economic
analysis before the petition can be made. The petitioner should have the
burden of defending the quality of the petition.
2. Require that quantifiable
recovery plan goals be agreed upon and a recovery plan outlined with the
cooperation of affected States and agencies at the time a species is
listed as endangered. Recovery plans should, where possible, cover more
that a single species and incorporate habitat plans that examine
environmental needs more broadly in terms of ecosystems and regional
biodiversity. However, the mandated actions in these plans should be
specifically those shown to be essential in resolving the problems causing
the decline of the listed species with a realistic expectation of success
upon implementation.
3. Redefine “critical habitat”
more precisely and establish it concurrently with the completion of a
recovery plan.
4. Ensure the use of good science
in ESA decisions, and responsible social and economic issue analysis and
consideration in recovery planning.
5. Require counterpart regulations
for federal land managing agencies, particularly BLM and the Forest
Service, and the States, aimed at eliminating interagency delay and
procedural wrangling.
6. Provide for incentives to
encourage cooperative involvement of private landowners in endangered
species habitat protection.
7. Establish ways to prioritize
the use of resources in carrying out ESA recovery actions that assures
funding to the appropriate Federal Agencies, States, and private
landowners in support of the most urgent needs.
8. Place a lower level of priority
and protection on sub-species level populations or other sub-species
groupings.
9. Require the Administration to
first provide an open, public process before considering the withdrawal or
cancellation of regulations, critical habitat designations, recovery plans
and other Endangered Species Act decisions.
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Updated from PLF No. 27-05, October 14, 2005 |