THE ESA UNDER SIEGE

by Tara Williams

Imagine an endangered species act that does notprotect species. This new ESA would compensate landowners and businesses ifan endangered species was foimd on their property. Choosing extinction would be an option for government officials. And listingwouldbe so complicated, many species wouldbe left out completely. Picture a fiiture without diversity because most species will have gone extinct.

The House Resources Committee, led by Chair Don Young ofAlaska, hasbroughtthepossibility ofthese nightmaresto life. On Sept. 7 ofthisyear. Young stoodbefore his fellow representatives anddeclared, “The Endangered Species Act is one ofthe most important environmental laws everpassedby Congress - andwe have nottakenthislightly ... the act must be reformed because it simply is not working.” WithRep. RichardPomboofCaliforniaand 90 cosponsors, YoungpresentedHR. 2275, “TheEndangered Species ConservationandManagement Actof 1995.”

Some thinka more appropriatetitleforthisbillis “The SpeciesExtinctionBill,” astheYoung/Pombo rewrite ofthe ESAstripsthelawofitspowerstorecover species. Bychangingthe meaningofwords and complicatingeverystep ofthe protectionprocess, thisbill makes endangered speciespreservationnearly impossible.

“Theworstthing about theYoung/Pombo Bill is that it would overrule the Sweet Home decision,” said Rina RodriguezfromDefenders ofWildlife. The SweetHomecase, brought before the Supreme Court, reaffirmed the 1982 amendmentto theESA stating habitatprotection is vital to species recovery. TheESAdefines anillegaltakeas anyactivitythatharms, killsorinjiuesanendangered species. However, theYoimg/Pombo Bill definesharmas “adirectaction against any member ofan endangered species that actually injuresorkills amemberofthe species.” TheYoimg/Pombo Billdoesnotconsiderdestructionofendangered specieshabitatillegal. Hereis anexampleofhowthischangewouldwork: Ifit isknownthatabaldeagle’s nestisinatree, andyouwantto cutthat tree, you can. As longas thebald eagle is not inthe treewhenyoucut, theYoung/Pombo Billsaysyouhave done nothing wrong. Your action does not directly result in the injuryordeathoftheBaldEagle. TheYoung/PomboBill alsoweakensprotectionbyplacinglimitsonlistingendangeredpopulationsofspecies. Let’s use a grizzlybeartoillustrate howthiswouldwork. Current law protects a distinct population ofgrizzlies in the North Cascadesregion, althoughthis speciesthrivesinAlaska. The ESA’s abilitytoprotect distinctpopulations is critical to regional species survival. If passed, the Young/Pombo Bill would immediatelydelist the grizzlybearpopulationin the North Cascadesbecause oftheirabundanceinAlaska Itfails to recognize that the extinction ofspecies in a region is an indicatorofthatarea’secologicalhealth. Alaska’sgrizzlybear population gives us no indications about ecosystem conditions inthe North Cascades. By eliminating protection for distinct populations, the

three currently protected salmon runs of Washington and Oregon would quickly disappear. Glen Spain from the Pacific Coast FederationofFishermen’s Associationexplained tomethat714distinctfishrunsarepresentlythreatenedwith extinction onthe West Coast. Although salmon get most of theattention, “declineinsalmonpopulationsarejustthetip ofthe iceberg,” Spain said.

TheYoung/PomboBill will resultinthe rapiddelisting ofall fish populations. For endangered fish populations to regain protection, the entire species must be in jeopardy around the globe. The fishing industry has renamed the Young/PomboBill“TheFisherman’sExtinctionBill.” Ifthe fishdisappear, sowillthe fishers’ livelihoods.

Further, the Young/Pombo Billthreatensthe survivalofsea said. However, a contradictory statement from the Endangered Species Coalition reports that compensation legislationwouldcost almost$30 billionoverthe nexteightyears. Compensationwill notbe thatbig ofan issue?

H.R. 2275 creates a series of hoops an endangered or threatened species must jump through to gain protection underthe ESA. Alterations to the petitioning and informationstandardswerecreatedtobogglethelistingprocess. First, thebill would require peer review, inwhichfederal to local government oflBcials are consulted. Essentially, the regulatory structure built by the Young/Pombo Bill complicates matters.

“As a result ofthis confusion, a lotfewer [species] will belisted,” saidMargaretMcMillan from the Environmental Defense

turtles. The toweakeningsea turtleprotectionisthroughincidental take, which is indirector unintended harm to an endan

TheYoung/Pombo Bill does not consider destruction of endangered species habitat

gered species. Incidental take is notconsideredaviolationunder theYoung/PomboBill.

In one section ofthe bill, the current requirement for shrimpnetstohaveTurtleExcluderDevices (TEDs)iseliminated. TEDs are structures put in shrimp nets that allow a seaturtle to escape ifcaughtina net.

Also, the Yoimg/PomboBill ignorestheNational Academy ofthe Sciences’ declaration that TEDs are essential to endangered sea turtle recovery. A huge decline in sea turtle populations would result, possibly endinginextinction.

One ofthe mostfar reaching measures ofH.R. 2275 is itsrequirementtocompensateprivatepropertyowners. The Young/PomboBillsaysthatifanendangeredspeciesisfound onsomeone’s landandifpreservationofthat species results in a property value loss, the property owner wouldbe paid.

Severalcaseshavebeenbroughtagainstthefederalgovernment by landowners who claim the ESA devalued their property.

“Thefederal courtshave neverfoundunderthe Constitution [that] any landowner deserved compensation,” said HeatherWeiner, attorneywithDefendersof>Wldlife. Onthe other hand, Steve Hansen, communications directorforthe House Resources Committee, thinkscompensation isanecessary improvement to the ESA.

The compensation claims that could be made against Fundin Washington, D.C. TheYoung/PomboBillhasadded an unusual twist to the listing of species. Ithands overcompleteauthority to the secretary ofthe interior. TheESAasitstands givesextensive authorityto the secretary, but not complete control. Ifthe Yoimg/PomboBill were passed afterthe secretaiydecidesto lista species, aconservationobjective is developed. Inthis objective, thesecretaiy maygrantfullprotection, absolutely no protection or anything in between. The Young/ PomboBill putsthefateofendangeredspeciesintothehands ofone person. “There is always thepossibilityof[getting] a good secretary that does good, but with a bad one, there’s noway to make him do squat,” McMillan said.

A conservation plan is developed from the conservation objective. The Yoimg/Pombo Bill states that this plan mustimplement“conservation measuresthathavethe least economic and social costs.” Recovery efforts hinge on whether or notthey conflictwith people.

TheYoung/PomboBillaimstorelieve tensionsbetween privatepropertyinterestsandthemethodsofrecovering species, Thebill’s superficial, piecemeal efforts in species protectionareevidentthroughout its lengthy discourse.

The bill’s reliance on captive breeding programs is a prime exampleofhowscience andcommon sensearebeing ignored. Encouragement is given to captive breeding programs because they detract responsibility from developers and keep land open for human use.

In October ofthis year, the House Resources Commit

theESAarelimitless.

“TheentireESAwouldbehaltedbycases,” Weinersaid. For instance, suppose I owned 20 acres situated on a wetland and that wetland was a nesting ground for whooping cranes. I could claim that I planned to turn my land into a golfcourse. Naturally, I could not have my golfcourse beteeapprovedH.R. 2275 witha 27 to 17vote. Thebill isnow in front ofthe House Agriculture committee, but a vote is not expected before the end ofthis Congressional session. Therearecurrently 125 cosponsorsoftheYoung/PomboBill. Ithas moreHouse supportthananyotherESAreauthorizationproposal to date. There is time to stop this effort to gut

cause thatwould destroythewhoopingcranes’ habitat. The financial loss to me would be huge, so I could sue the government to compensate me for that loss.

“Compensationwillnotbethatbigofanissue,” Hansen said. Compensation would be a last resort for negotiating between private property owners and the government, he theESA.

The Young/Pombo nightmare does not have to be the only possible future forthe ESA. Picture a future withbiological diversity where people — landowners and developers, too - interact respectfully and responsibly with other species.

When Principles Go Extinct

The Process of Amending the Endangered Species Act

by Richard Navas

R

elax. Extinction is a naturalprocess. Thefact that species disappear is not cause for alarm.Individuals andfederal agencies have more importantwork thanprotecting the diversityand legacy oflife on earth. Short-term economic impacts and budget constraints must take priority. Private propertyrights needprotection no matterwhat the cost. It is sobering to see how fundamentally politics have changed since a Republican president, Richard Nixon, proudlysignedthepopularESAinto law. Many Republicans in Congress voted fortheESAthatyear, includingtheconservativefreshmanrepres^tativefrom Alaska, DonYoung. In contrast, this yearthe same Rep. Young, along

This year, tfiese principles inspired with Rep. Richard Pombo (R-Calif), proposed HR

two congressionalbills, HR2275 introduced by Rep Don Young (RAlaska) and S 768 offered by Sen. Slade Gorton (R-Wash.) — both 2275 to reversemuchoftheESA.

“Itdoesn’tundo everythingthat’s beendone, butI suspect it would end up having that effect,” Gorton saidintroducingthesimilarS 768 intothe Sen

writtento changethe Endangered SpeciesAct(ESA) of1973.

HR 2275 and S 768 make protection optional and politically motivated. Theyignorediemostcommon cause of extinction — habitat deate.

Environmentalists

are going to have to com

Rep. JackMetcalf(R-Wash.) co-sponsored the Yoimg/Pombo

Bill, feeling it had the best chance ofgettingpassed. “We signed on with

struction. some trepidation, but we

These ideas not only conflict withscientific opinion, butth^differstarklyfromthefar-sighted principles that guided the authors ofthe

promise. If not, I'mjustgoing

to ram it down their throats.

wanted to have a say in it,” Metcalf said. “It had some realhorsepowerbehind it.” The locomotive pro

original ESA23 years ago.

In that era, many people were alarmed by the disappearance ofspecies. Theysawextinction as an omenforotherse

-Don Young

vidingthathorsepowerisDon

Young. Manypeople knowYoung as adramaticmanandastaunchanti-en-

riousproblems.

“Thetimehas comewhenwecannolongerwaitto repairthe damage already done and to establish new criteria to guide us into the future,” President Nixon said in an address to Congress in 1970. The environvironmaitalist.

When he became chair ofthe House Resources Committee after the Republican congressional victories lastyear. Young said, “Environmentalists are goingtohaveto compromise. Ifnot. I’mjustgoingtoram

mentwas ahealth concern and national securityissue thattook priority.

Responding to the demands ofvoters. Congress gaveus anunequivocallawstating, “TheUnited States has pledged itself... to conserve to the extent practiit down theirthroats.”

OnetoolYoungusedto “ramitdowntheirthroats” was ataskforceheadedbyPombo. Pomboheldhearings in districts that were hostile to the ESA. He was careful to avoid inviting scientists and environmental

cablethevariousspecies... facingextinction.”America declared its commitment. Only the details ofhow to protecttherichness ofour wildlife were leftto be anist to the panels.

“There has been no effort to be objective,” task forcememberRep. BruceVaito(D-Mina) said. “Ifind

WayneGilchrest(R-Md.) was alsopartofthistask force. “I havenever seen so many peopleafraid ofinformationinntylife. Th^ are extravagantlyfundedby interestgroupsthatstandtomakealotofmoneyfrom misinformation,”hetoldthe Baltimore Sun.

TheNationalEndangeredSpeciesActReformCoalition(NESARC)represents theinterests ofmanywho stand to profit from sweeping aside America’s commitmentto protectingendangeredplants and animals. Members and supporters ofNESARC include power utilities, waterdistricts, cattleranchers, andtimberand mining companies.

Two local companies. Wilder Construction of Bellingham and Puget Power, are members of the NESARC. Global interests such as die International Coimcil ofShopping Centers also have membership.

Economicconcernsmotivatemostmembers ofthe NESARC to join. The ESA created annoyances for somemembers.

“I think die worst impact we’ve seen is restricted hours ofoperation on a few occasions near an eagles nest,”saidGaleSchwiesow, projectmanagerforWilder Construction Company.

Others have been devastated, like Dan Pietila, a contract logger in Denting who profitably logged for 20years. Today, Pietilacannot find workforhis crew because forests in his area are closed to protect the spotted owl.

No memberofNESARC wants any species to go extinct. They simply have other priorities, and those priorities are financial.

NESARCwrotemostoftheESAreformbillthat Slade Gorton presented in the Senate this Spring. Many pieces ofGorton’s bill have shown up in the Young/Pombo legislation as well.

Theauthors oftheNESARC bills (HR2275 and S 768) were driven by the shortterm financial concerns held by the coalition’s members. Again and againthose concerns show up in the proposed bills. Forexamplepredictability—oncearecoveryplanhas beenwritten it is difficultto change evenifnewscientific information comesto light. Another concern is compensation to property owners; will we perpetuallypay landowners forprotectionofwildlife?

The entire pointofview ofthenew bills contradictthe visionofthe currentlaw and scientific opinion. The principals of ecology say, extinction is a wanting sign ofgrave problems for long term economic health and national security. The prudent course is protecting species in their natural setting. Incontrast, thenewlawswould say, tirelossofshort term profits orjobs is a signal ofgrave political and financial problems for anyone who wants to protect the environment—especiallythediversityoflife.

Because it began with different principles, the Young/Pombobillfrequoitlyconflictswithscientific opirtion and with the goal ofa robust environment centuriesfromnow. TheHouseResources Committeemusthavesensedthiswhaiitvoted21-17 against invitingtheprestigiousNational AcademyofScience toreviewthe bill forscientific

We signed on with some trepidation, but we wanted to have a say in it. -Rep Jack Metcalf soundness.

The principles gmdingthe Young/Pombo Bill and the spirit that brought it into the worldaretroubling.

Wtill Americans acceptit as law? WhenCongress votes on these bills duringthe coming year th^ will answer an importantquestion: IsthisgenerationofAmericans willingto takeastand andrenewits comntitment to a strong environment? Or will we walk away fromthatcomntitmentandthe futureitpromisesbecausethe principles werejusttoobigfor usto grasp?