Endangered Species Act:
ESA Impact on the Pacific Northwest

BACKGROUND

On December 28, 1973, Congress passed the Endangered Species Act (ESA) in an effort to conserve threatened and endangered species by first determining their status and then providing for their recovery. The ESA was not designed as a permanent bill, so it must be periodically re-authorized by Congress. Re-authorization was scheduled for 1992, but for the last several years Congress has decided not to deal with the issue of a major reauthorization. Instead, it has issued one-year extensions to the existing law. Some believe that 1997 will be the year where current law will be debated, revised and re-authorized.

Endangered species were viewed by the drafters of the ESA as limited in number or geographical area to the point where listing would impact only small locations and have minor economic impact. Congress did not originally intend for the ESA to cause such far-reaching social and economic impact as has been evidenced in the Pacific Northwest with the listing of the northern spotted owl debate, marbled murrelet and several species of salmon.

ISSUES

  • 1. The ESA listing process has several flaws contributing to inconsistent and arbitrary listing decisions. There is a lack of set standards for defining the “best scientific and commercial evidence available” which is used as the sole research determinant in choosing a species for listing. Due to the lack of anonymous peer review from the scientific community, listing decisions are made without peer inquiry, critique and/or mutual resolution.
  • 2. There is a lack of standards in measuring what constitutes jeopardy to a species and adverse modification of critical habitat.
  • 3. The U.S. Fish & Wildlife Service (FWS) has wide latitude in designating critical habitat, which has created inconsistencies in the process and caused lands to be designated which are neither occupied nor suitable for the listed species.
  • 4. Government agencies have prolonged the defined 90-day time limit on consultation by manipulating the definition of the starting date of consultation, thus delaying decisions for up to 18 months.
  • 5. The ESA mandates the same protection to every geographical area within a species range as it does the entire species, although listed species may thrive in some geographic areas of their total range.
  • 6. There is no differentiation between threatened species and endangered species, which has produced unwarranted protection for species not proven to be in danger.
  • 7. Recovery Teams, which develop recommendations to federal agencies and have non- federal employee members, should be subject to the Federal Advisory Committee Act (FACA), which ensures balance in committee membership of all impacted parties.
  • 8. Recovery Plans, which are developed by recovery teams and incorporate actions which will lead to species de-listing, also do not involve members of the general public or other affected parties.
  • 9. The management actions which would lead to a “take” of a listed species are rarely defined. The legal definition of a “take” is still unclear even after the Supreme Court decision in the Sweet Home case.
  • 10. Non-federal landowners are vulnerable to prosecution for unknowingly “taking” a northern spotted owl.

ANALYSIS

The Listing Process

Current guidelines state that the status of a species must be determined solely on the basis of the “best scientific and commercial evidence available” and may not consider any economic consequences of listing. Since there are no set standards for determining the validity of this evidence, biologists working for the federal government have broad latitude to emphasize some research findings and disregard others. The fates of entire industries lie in the judgment of a handful of biologists.

The process is not subject to full peer review, nor is there any anonymity of those who review federal listing documents. As such, peers are hesitant to criticize each other given that both their names and comments are a matter of public record. It is perceived by some experts that they will be the target of negative commentary on their own projects should they question work done by their colleagues.

Additionally, the drafters of the ESA created two categories of listed species: threatened and endangered. Much greater protection was afforded by the ESA to endangered species than to threatened species. Congress specifically created the two categories to limit the social and economic impacts of protecting species which were not threatened with extinction. In 1975, the Secretary of the Interior issued a regulation which wiped out this distinction. In doing so, full ESA protection was extended equally to both endangered and threatened species.

Questionable Listings: Northern Spotted Owl and Marbled Murrelet

The northern spotted owl was listed because it was thought that the amount of the old growth forest on which they depend was declining. No research was done to verify the assumption of exclusive old growth dependency which now is known to be false. Since spotted owls use a wide variety of habitats, the projected amount of spotted owl habitat has been steadily increasing since listing.

In 1988 it was estimated that 6,069,720 acres in Washington, Oregon and California were suitable for spotted owls. In 1990, this estimate was increased to 6,795,400 acres, and in 1992 to 8,204,400 acres— 2,134,680 more acres than what was estimated just four years previously. This increase was due in part to better inventories, but mostly due to the recognition that spotted owls are not limited to living only in old growth forests. These numbers, however, are still conservative as federal biologists are not willing to recognize the entire range of suitable forest habitats for spotted owls.

In making the original decision to list the spotted owl, no population census was conducted. The listing decision just assumed that the size of the population was declining because habitat was decreasing. Ironically, every year for the last 20 years the number of verified owl sightings has increased. In 1988, the number of owls verified was nearly 1,500 pairs. In 1990, the year the spotted owl was listed as a threatened species, the count increased to 2,022 pairs and in 1992, to 3,461 pairs. The estimated total population has also continued to rise. In 1988, population was estimated at 2,260 pairs, increasing in 1992 to 4,500 pairs.

Data supporting the listing of the marbled murrelet (a sea bird approximately the size of a robin) is even more questionable. In reviewing the murrelet, FWS biologists relied on field notes taken at the turn of the century concluding that the number of this species in Oregon was very high at the time. They also assumed that the entire coast range had always been covered with old growth forests. Both assumptions are false and there is absolutely no research data that supports the hypothesis that the marbled murrelet population is in decline.

One anomaly of the ESA is that it affords the same protection to every geographical area within a species range as it does the entire species. In the case of the marbled murrelet, the bird is common on the coasts of Alaska and British Columbia numbering over 250,000. FWS has stated that there is no evidence that the marbled murrelets in Washington, Oregon and California are geographically separated from the 250,000 marbled murrelets in Alaska and British Columbia. Therefore, if no murrelets lived outside of Alaska, the species as a whole would continue to thrive.

Critical Habitat

The main problem with the ESA critical habitat designation is agency latitude. The ESA mandates critical habitat be designated at the time of listing “to the maximum extent prudent and determinable.” This portion of the law has not been strictly adhered to by the federal agencies overseeing the listing process. In fact, only a fraction of the listed species have had critical habitat designated, as it is often difficult to determine and of questionable value. The ESA states that only lands which are occupied by the species and are necessary for their conservation can be designated. Economic considerations can be used to determine if an area should be designated, but only if excluding an area will not jeopardize the existence of the species.

FWS has designated land as critical habitat for the spotted owl and has proposed land to be designated as critical habitat for the marbled murrelet which do not meet these requirements, as they are neither occupied nor suitable for the species. In the case of the spotted owl, FWS decided not to designate critical habitat and was challenged in court. FWS was later forced to make this determination against its professional judgment.

Recovery Plans

The ESA directs federal agencies to develop a recovery plan for each listed species which incorporates site-specific management actions leading to delisting. Recovery plans have been adopted for approximately 60% of those species listed as either threatened or endangered. FWS or National Marine Fisheries Service (NMFS) do not have the authority to implement recovery plans. These must be adopted by federal or state agencies whose actions may affect the listed species.

The Recovery Plans for both the northern spotted owl and the marbled murrelet were developed by a Recovery Team comprised of federal employees, state agency representatives and university professors. Members of the public and other affected parties were not represented on the teams. Since these teams develop recommendations to federal agencies and have non-federal employee members, they should be subject to the Federal Advisory Committee Act (FACA), which ensures this type of committee is fairly balanced and open to the public. The ESA exempts Recovery Teams from FACA, limiting participation to a select group of interests.

Consultation

Section 7 of the ESA specifies the procedure used when an action taken by a federal agency “may affect” a listed species. It states the action agency must consult with the agency in charge of managing the listed species to 1) ensure that the action agency’s proposed project will not jeopardize the continued existence of the species, or 2) lead to adverse modification of critical habitat. With the spotted owl and marbled murrelet, FWS manages the process; in the case of anadromous fish, NMFS is the responsible agency. The ESA does not offer guidance as to what constitutes either adverse modification of critical habitat or jeopardy to a species.

Due to this lack of standards, FWS and NMFS have a great deal of latitude in making crucial decisions on these processes. In fact, both agencies have made decisions which appear inconsistent and arbitrary. For example, FWS has allowed the actual killing of marbled murrelets at sea but has ruled that disturbing less than 1/5 of one percent of its inland habitat will jeopardize the existence of the entire species. NMFS has allowed the actual killing of listed salmon species through fishing season allocations while at the same time stating that performing routine road maintenance near a river cannot occur because it would jeopardize the existence of the same species. FWS has made similar judgment calls concerning the northern spotted owl.

FWS has continually violated the ESA concerning the time limit on consultation. The ESA specifically states that consultation, “…shall be concluded within the 90-day period beginning on the date on which initiated.” In most cases, FWS has taken much longer than this by manipulating the definition of the initiation date. Instead of using the date that it initially receives the consultation request, it is using the date when they feel they have all the information needed to make a decision. This has extended the time projects are in consultation up to 18 months. The outcome of the consultation process is the issuance of a biological opinion and, if appropriate, an incidental take permit by the enforcement agency. In developing these documents, the agency must determine how many individuals of the listed species will be “taken.”

Defining a “Take”

The confusion in defining a “take” is determining the point when action causes harm to the species. The focus of this debate is whether the modification or destruction of a species habitat in and of itself is a violation of the take prohibition. The Sweet Home case ruled on by the Supreme Court did little to resolve this issue. Some believe that the decision reaffirms the notion that habitat modification can be viewed as a take. Others think the decision limits the scope of habitat modification as a take to those instances where the habitat modification actually leads to the physical injury or death of the listed species. Resolution of this issue will most likely occur when a federal agency files suit against a non-federal landowner for taking a listed species based on habitat modification. One such case is now before U.S. District Court in Eugene, Oregon. The FWS is claiming that a proposed timber harvest by West Coast Forest Resources will take a spotted owl pair, nesting about a 1 miles away. The fact is that after six years of owl surveys in the area, neither of the owls have ever been seen using the proposed harvest site.

The FWS continues to maintain that habitat alteration alone can be sufficient to violate the take prohibition. In the case of the spotted owl, the agency claims that if a landowner’s activity causes the nesting habitat of a pair of spotted owls to fall below 40% of their total home range, the pair may be taken. This definition has led to situations where the same pair of spotted owls has been taken many times. Furthermore, spotted owl pairs are establishing nesting sites which do not contain 40% habitat and therefore would be taken without any human intervention.

The threat of prosecution has led private landowners to seek various means of obtaining incidental take permits associated with land management activities. Furthermore, the administration’s promulgation of a Section 4(d) Rule for Washington and California was an attempt to clarify what lands would be relieved from the prohibition of taking northern spotted owls, but fails to clarify what constitutes a take on those lands where the prohibition remains in effect.

Application to Private Lands

The ESA is clear that private landowners are not allowed to do anything on their lands which would violate the take prohibition of a listed species. There is, however, no provision for private landowners to consult with FWS or NMFS to determine if an action would lead to a violation. The only options for private landowners are: “No Take” Management Plans and Habitat Conservation Plans that result in the issuance of incidental take permits. Both options are costly, time consuming and likely infeasible for small landowners with limited resources. One of the important components of HCP’s is the “no surprises clause,” which provides certainty to the landowners should another species be listed. The “no surprises clause” assures landowners that if they follow their approved multi-decade HCP, they will not be further impacted if another species is listed.

In 1993, the administration committed to examining alternatives to provide relief to non-federal landowners with regard to protection of the northern spotted owl. Private landowners entered into discussions with the administration to assess the feasibility of using Section 4(d) of the ESA as another means of clarifying the prohibitions against take. The section states that “the Secretary shall issue such regulations as he deems necessary and advisable for the conservation of” any threatened species. While the details of this rule are still in development, the main component necessary is “safe harbor.” This term means that if landowners comply with the mandates in the 4(d) rule, they could not be charged with an ESA violation. Private landowners, in general, supported the development of such a rule if it was based on a proven need for private lands to contribute to the maintenance of the species. Landowners hoped that a 4(d) rule would clarify the confusion surrounding the role of non-federal lands and the modification of habitat as it relates to listed species. Unfortunately, political pressures at the state level precluded this from happening in Washington State. There is still a chance for this to occur in the development of a 4(d) Rule for Oregon.

RECOMMENDATIONS

  • A) Define standards for determining the “best scientific and commercial evidence available” as guidelines for agency investigative research in determining species listing.
  • B) Consider research findings equally from all affected parties, taking into account economic impact of species listing.
  • C) Mandate double-blind peer review studies of all proposed listings, encouraging scientific inquiry and debate without fear of reprisal from academic colleagues.
  • D) Redefine and distinguish “threatened” from “endangered” species in the ESA, allowing appropriate levels of protection for each classification.
  • E) Clarify Congress intent of protecting listed species viability which may not include maintaining the species in every geographic region.
  • F) Clearly define criteria for designating and overseeing critical habitat by all government agencies.
  • G) Impose standards to measure jeopardy to a species and adverse modification of critical habitat to ensure consistent procedures.
  • H) Allow full participation in Recovery Plan development and implementation, balancing Recovery Team membership equally among all parties affected by final decisions.
  • I) Set strict guidelines on the length of consultation period for government agencies to make listing decisions.
  • J) Redefine the term “take” and the conditions that define the action.
  • K) Establish a scientific basis for determining need of non-federal land contribution towards maintenance of a listed species.
  • L) Protect non-federal landowners from federal prosecution if they are in compliance with existing state laws.
  • M) Consider compensating landowners for loss of rights to manage their private lands as a result of federal requirements to protect listed species.

 

Source: Northwest Forest Resource Council, April 1997