After three decades on the books, the Endangered Species Act might be facing an overhaul. With momentum for its reform building, Rep. Richard Pombo, R-Calif., is expected to introduce new legislation during this session of Congress.
That will be not a moment too soon for many producers. “It’s like living in a constant lightning storm,” says Ted Hoffman, veterinarian and rancher in Mountain Home, Idaho, of dealing with the current Act. “You never know when you’ll be struck.”
Randy Simmons says the Act was born broken. “An endangered species act would worry about a species,” says Dr. Simmons, head of the political science department at Utah State University. “But because of a line inserted into the ESA as originally written, we primarily worry about ‘distinct population segments’ arbitrarily decided by the Fish and Wildlife Service. If the act strays from what people expected, it’s because of the distinct subpopulation sentence.”
The result is that the Act gave the Fish and Wildlife Service far greater control over land use than may have been intended. “It became a land-use-planning act,” Dr. Simmons says.
It is a product of its times: the early 1970s was a time when people looked to the federal government for solutions. “States weren’t trusted, maybe because of the civil-rights experience,” Dr. Simmons says. “But states have come a long way.” A study of state and national forest lands revealed that the states did a better job of managing, ecologically and financially, their forests and grazing lands. “Why can’t it happen for species, too?” Dr. Simmons asks.
In addition, ecological thinking has changed since the Act passed. “Most environmental laws are based on the idea of a balance of nature: if you don’t have humans in the way, there’s stasis,” Dr. Simmons says. “But modern ecology doesn’t predict that anymore. Ecologists have been moving away from that for 20 years, but it’s not public knowledge yet. There is change, not stasis. The Endangered Species Act, as it’s interpreted, is an attempt to create stasis,” Dr Simmons says. “So you’re fighting against ecological processes.”
Sage grouse decision
Many ranchers breathed a sigh of relief when the greater sage grouse did not get listed — and wondered if it might be a sign of changes to come.
At the very least, it is a test case. “There are two issues with the sage grouse decision,” says Jeff Eisenberg, director of public lands for NCBA. “One is a model of conservation. It’s a different model, instead of the top-down mandate, involving local people. We support that. The other is the impact on sage grouse: time will tell if conservation by local communities will succeed. It’s an extremely important test.”
For Preston Wright, a cattle producer from Deeth, Nev., chair of NCBA’s Property Rights and Environment Committee and president of the Nevada Cattleman’s Association, the sage grouse decision exemplifies his frustration with the Act. “It’s a good decision in that listing wasn’t warranted, but there are still a lot of agency folks that are going to require the same restrictions as if they were listed,” he says. “States are going ahead with recovery plans as if they were listed. We may have a few more tools than if they were listed, but it hasn’t eliminated impacts to grazing completely.”
Part of his frustration stems from the lack of good information behind ESA decisions. “It’s not really well-understood what needs to be done to reverse their decline. But some group of biologists came up with some guidelines — maybe they need at least 7 inches of grass height. They actually live in areas where grass won’t even grow that high. But having that standard put out there means we have, every time we go to renew a permit, some environmental group trying to get that written in as a standard and not a guideline. If it were to be into regulations by judicial edict, it would rule out grazing in that area — and to no effect,” Mr. Wright says.
Much of the information that supported the sage grouse listing was resoundingly refuted, Dr. Hoffman says, in part by the Owyhee Cattleman’s Association in Idaho, which spent $20,000 to start the investigations. “I’d hope the government will examine more critically the evidence put forward toward listing.”
It’s true that the scientific process could be improved, Dr. Simmons says, but that is minor compared to the change in basic approach he’d like to see. “It doesn’t move us very far,” he says. “So what if something is endangered? What matters is how we are going to try to save it — will we create positive incentives or negative ones?”
Incentive is the idea that comes up over and over in connection with reform. “Cattlemen would like to see some real positive incentives to protect and recover,” Mr. Wright says. “Anything they call an incentive now for landowners is just an insurance policy against future demise of species in your area. There’s no upside.” With 80 percent of all listed or threatened species having all or part of their habitat on private land, incentives for landowners may be the most important change that could be made.
Right now, there are no incentives for anybody to make the process work — neither landowners nor agency employees. “There is no incentive for encouraging or even recovering. What gets done is planning and process,” Mr. Wright says. “People with nothing to lose get to make decisions. No agency person will lose their job if a species goes extinct.”
He wonders if that could be turned around. “What if you put the people who have most to lose in charge of the process?” Mr. Wright asks. “It’s pretty radical in some cases. Who complained loudest about species being listed? They get to decide how to recover it. Ranchers and sportsmen were against wolf reintroduction — so they’re responsible. Let the bureaucrats be advisers.”
Incentives could apply at the state level, too, and encourage state involvement. “As the law is currently administered, it doesn’t give states incentives to participate; there’s no reward for coming up with a conservation plan,” Dr. Hoffman says.
Currently, the only incentives that exist are incentives to list species and keep them listed. “You have a budget,” Dr. Simmons says. “If the budget is going to go away if you de-list, why de-list? It’s relatively easy to add something to the list, start creating management plans. There’s no penalty if a species fails to improve. In fact, you may end up with a bigger budget.”
Those policies mean few species actually get saved. “Most listed species are in decline,” Dr. Simmons says. “The peregrine falcon was primarily saved not because of the Endangered Species Act, but the work of private groups and the elimination of DDT. There are almost no Endangered Species Act success stories to speak of. People point to the gray wolf — it’ll be a success story in terms of reintroducing them to that portion of the country, but they weren’t endangered.” There were already thousands of wolves in Canada and Alaska; still it ranked 24th in terms of expenditures, out of 1,264 endangered or threatened species.
Proof, recovery, renumeration, state input
Another change to the Act that critics would welcome is higher levels of evidence that a species deserves listing. “We need standards of proof,” Dr. Hoffman says. “We use ‘best available science,’ which sounds good, but if it’s inaccurate, that’s inappropriate. Right now, if the specter of endangerment exists, you need convincing proof it’s not true. That ought to be turned around: we should address instances where there is convincing proof that a species is in trouble. There is nothing else in American history like this Act.”
Shifting the emphasis to recovery and having a plan in place is crucial. “They should have measurable, achievable goals for when recovery happens,” Mr. Eisenberg says. “That’s our concern: not that the process be distorted, but that there be realistic standards clarified.”
Renumeration is another issue that concerns NCBA. “People lose value because of the application of the ESA,” Mr. Eisenberg says. “If you diminish people’s property for the public good, the public ought to compensate. Apart from whether a permit is a property right, it has value. We recognize that principle; we are working with Congressman Renzi to get that bill introduced.”
The intention of the Act was that its work be done in cooperation with states; that should be mandated. “But it’s almost never done,” Dr. Hoffman says. “It’s not in the policy and regulations they use to enforce the Act. And most people in the Fish and Wildlife Service have no intention of cooperating with local people. That’s turning around somewhat now. That cooperative attitude would go a long way to solving problems, even without changes to the Act.”
Levels of optimism for the likelihood of changes to the Act vary, but interest is at a high point. “One of the reasons we have a better chance of reform is it’s affecting a wider and wider array of people,” Mr. Wright says. “The question is: does it affect enough rural people that we get it reformed before there are so few of us we don’t count?”