Hastings Focuses on the ESA in 2014: Time for a Reevaluation?

No comments from me — this article is well written and presents the current — and long-term — problems and solutions clearly and succinctly. Kudos to Kate Prengaman.

Rep. Hastings calls for reforms to Endangered Species Act

A male spotted owl glowers at visitors to his nesting area in the Wenatchee National Forest near Cliffdell, Wash. in June, 2002. The spotted owl, which was listed in 1990 as a threatened species under the Endangered Species Act. The has since become a lightning rod in the debate over the ESA. (GORDON KING/Yakima Herald-Republic file)

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By Kate Prengaman / Yakima Herald-Republic
kprengaman@yakimaherald.com

YAKIMA, Wash. — From spotted owls to salmon, the Pacific Northwest has been ground zero for the impacts — good and bad — of the Endangered Species Act for 40 years.

That’s the view of U.S. Rep. Doc Hastings, R-Pasco, who heads the House Committee on Natural Resources, which is considering significant changes to the landmark 1973 legislation.

“Very generally, those of us in the Northwest have been hit by impacts of the Endangered Species Act more than anybody,” Hastings said. “The economy that is based here is natural-resource based, with water, and with the timber industry, so whenever you have laws that impact natural resources, they are going to impact the economy.”

Hastings believes the law takes too much of an economic toll, leaves too much room for litigation by environmental groups and lacks an emphasis on getting species recovered and off the list. He called legislation to reform the act a priority for the year.

Proponents of the Endangered Species Act, ESA for short, say that it’s working well and that calls for reform are actually a move to weaken protections.

There are lots of proposed reforms floating around, including one sponsored by Sen. Rand Paul, R-Ky., which would make adding a species to the list subject to state and congressional approval, automatic delisting after five years, and require the government to pay landowners who property lost value because of the ESA enforcement.

Hastings declined to comment directly on Paul’s proposal, saying that the group of representatives who are looking into reforms is still working on identifying the specific weaknesses in the law and the best potential solutions. He did say that limiting “closed-door settlements” with environmental groups was a priority.

Hastings’ push for reforms is supported by many industry organizations, including the Washington Farm Bureau. The public policy director for the bureau, Tom Davis, said that reducing lawsuits from environmental groups and requiring sound science would help landowners gain trust in the ESA process.

The ranking Democrat on the House Natural Resources Committee, Rep. Peter DeFazio, D-Ore., said in a statement to the Yakima Herald-Republic that he doubts the proposed reforms will succeed.

“There’s the potential for balanced, reasonable compromises to modernize the Endangered Species Act based on the best available science, but unfortunately this majority does not seem interested in such an approach,” DeFazio said. “Instead, we will likely spend time debating legislation that will be cast as ‘common sense’ reforms, but will actually gut the law, and as a result will go nowhere in the Senate.”

Spotted owl, shuttered sawmills

Talking about the economic consequences of the law, Hastings invokes an example familiar to many Washington — the northern spotted owl. When the iconic bird was listed as threatened in 1991, controversial protections of old growth forest were made to protect its critical habitat, reducing the forest available for logging.

Many in the timber industry blame those protections for putting loggers out of work and closing mills along the eastern Cascades.

However, other factors were also at play. Much of the most profitable acres of old-growth had already been cut at that point, and many of the secondary stands had not grown enough to log.

Noah Greenwald, endangered species director for the Center for Biological Diversity, disagrees with the argument that listed species are always bad news economically.

“Take the Northwest Forest Plan, which protected the last 10 percent of old-growth forest — that halted some economic activity, but the economies of Oregon and Washington have continued to grow,” Greenwald said.

Protecting endangered species, Greenwald said, actually means protecting their environments, which is important because people depend on clean water and healthy habitat just like other species.

Bridget Moran, who works for U.S. Fish and Wildlife Service (USFWS) in Washington state, said that the agency works with foresters to figure out how timber harvest and spotted owl protections can coexist.

“We work with the national forests in Washington to help them get the harvest out and more often than not, we know how to work through owl issues,” Moran said.

The ESA works, she said, because the law gives the federal agencies a flexible set of tools to solve conservation problems working with landowners.

Do we need to limit lawsuits?

The national Center for Biological Diversity is one of the environmental groups Hastings likes to blame for turning the ESA into “a process where litigation becomes more paramount than saving species.”

The Natural Resource Committee said 570 ESA-related lawsuits from 2009 to 2012 cost the federal government more than $21 million in attorney fees, including $4.6 million in the Northwest.

Hastings says time and money could be better spent working on recovery efforts.

However, the fees paid to plaintiffs in those cases do not come out of the $175 million annual budget the federal Fish and Wildlife Service has for endangered species work; it comes from a separate fund tapped for all government lawsuits.

Greenwald disputes Hastings’ contention that environmental groups sue to get listings made for “political purposes” and financial gain. They sue to force the agencies to make decisions in a timely manner, he said, not to dictate the outcome.

Last summer, Dan Ashe, the director of the USFWS, told the House Natural Resources Committee that the number of species at risk is increasing, but limited funding and a backlog of species proposed for the list means his agency can miss its own deadlines.

“Any deadline settlement we enter into commits us only to undertake a process already required by the ESA by a certain date,” Ashe said in his testimony.

He added that these lawsuits don’t give away his agency’s authority to make decisions based on the best available science.

Ashe also said a recent nationwide settlement that included hundreds of species at once was in the best interest of the public and the agency, because it allowed the agency to set priorities and achievable deadlines, while also reducing the number of lawsuits it had to deal with.

Greenwald said the right of citizens to sue for enforcement of the ESA is critical to protecting the environment.

“Hastings makes it seem like a process problem, but really, he objects to species being protected,” Greenwald said.

One listing Hastings opposed recently was that of a rare plant found in the Hanford Reach. He calls it a “poster child” for problems with the current ESA. The White Bluffs bladderpod, a perennial plant with clusters of small yellow blooms, was listed as threatened in December, despite opposition from local farmers and the Franklin County Natural Resources Advisory Committee. They hired an independent scientist to analyze the plant’s DNA to see if it really was a unique sub-species.

“The law has to be better defined as to what good science is,” Hastings said. “DNA evidence showed that it’s the same as other bladderpods. … Why was the DNA evidence ignored? In criminal law it’s conclusive.”

Federal records show that the USFWS sent that DNA study to five other scientists for review, and they all said the study lacked sufficient data to conclude that the bladderpod was not unique.

Moran said she saw the bladderpod decision as a success story because of how the agency worked with local landowners to determine the plant’s key habitat.

The only critical habitat that was designated for the bladderpod is about 2,000 acres of federal land in the Hanford Reach National Monument.

Although 300 acres of privately owned farmland was considered for habitat protection but eventually not included, area farmers still worry that the plant’s listing could cause them problems. Excess irrigation water from adjacent farms can cause landslides on the bluffs where the bladderpod grows and the USFWS could potentially limit farming in a buffer zone to protect the habitat, although there are no proposals to do so at this time.

Kent McMullen, chairman of Franklin County’s resources committee said he was “very disappointed” in the agency’s decision because of the potential impact on the area’s farmers.

“I think the USFWS is walking a tightrope trying to avoid litigation from the Center for Biological Diversity and from private landowners,” McMullen said.

He supports reforms to the ESA that would prevent agencies from wasting money on species like the bladderpod, which in his opinion don’t really justify protection, and reduce costs to landowners. However, he said he’s not optimistic that such reforms will gain traction under the Obama administration.

Salmon, steelhead success stories

When Hastings talks about endangered species success stories, he also cites a local example — salmon and steelhead restoration.

The numbers of returning salmon are improving throughout the Columbia River system, Hastings said, and he believes the specific recovery plans, written in collaboration with locals, are key to that success.

One of the 14 ESA-listed fish that travel the Columbia, the fall chinook that swim up the Snake River to spawn have grown from a run of about 800 fish in 1992 when they were listed as threatened, to 56,000 in 2013.

Stuart Ellis, a biologist with the Columbia River Inter Tribal Fish Commission, said that the Snake River chinook are one of the region’s best recoveries, thanks to the efforts of the Nez Perce tribe.

Ellis said that through ESA protections, declines have halted for all the threatened and endangered fish in the Columbia, but recovery is a complicated process and not all the species are doing as well as the Snake River chinook.

In the Yakima River, the only two listed species are steelhead and bull trout.

Alex Conley, one of the people responsible for the recovery plan process for mid-Columbia steelhead, agreed with Hastings about the value of thinking locally about how to help species.

“The cooperative approach for recovery planning for salmon and steelhead in Washington has been bringing scientists together to talk about recovery targets,” said Conley, director of the Yakima Basin Fish and Wildlife Recovery Board. “It gives you something to measure your progress again.”

Conley, who works with two different agencies for the basin’s two listed fish, because ocean-going fish fall under a different jurisdiction, said the level of local cooperation from the National Oceanic and Atmospheric Administration led to a plan that has a lot of support and that people are excited about doing the work necessary to get the steelhead recovered and taken off the endangered species list.

If or when that happens, Hastings and Greenwald will both celebrate. But what the Endangered Species Act will look like by then remains up for debate.

7 Comments

  1. As a former Fed, this quote seemed a little odd to me:

    “Ashe also said a recent nationwide settlement that included hundreds of species at once was in the best interest of the public and the agency, because it allowed the agency to set priorities and achievable deadlines, while also reducing the number of lawsuits it had to deal with.”
    It seems to me that agencies can always set priorities and have achievable deadlines. And couldn’t someone disagree with the priorities and deadlines and file different lawsuits about different creatures?

  2. ‘Doc’ Hastings says ““The law has to be better defined as to what good science is,” Hastings said. “DNA evidence showed that it’s the same as other bladderpods. … Why was the DNA evidence ignored? In criminal law it’s conclusive.”

    He’s wrong of course, as Doc Hastings often is. His ignorance of science is forgivable, as he’s not actually a “doctor” of anything (college dropout), and his understanding of criminal law is incorrect also; DNA evidence is not always conclusive in any context. There’s a lengthy discussion and peer review comments for the bladderpod DNA study (done here at my home university, looks like solid work), warning it’s a very big file: http://www.fws.gov/wafwo/species/Hanford_Plants/Bladderpod%20DNA%20Peer%20Review%20Documents.pdf

    Anyway, the conclusion of the investigator himself and the five peer reviewers is that the results are inconclusive, summary excerpt here: “The genetic analysis (Anderson 2013) used DNA sequence data to investigate the taxonomic status of the White Bluffs bladderpod and concluded that the findings presented in the report did not indicate that Physaria douglasii ssp. tuplashensis is a distinct subspecies. However, the report states that these results cannot be considered definitive or final due to sampling constraints (Anderson 2013, p. 9). The Service had the genetic analysis report (Anderson 2013) externally peer reviewed given its potential significance to our final listing determination. We requested peer review from five subject and related field experts and received comments from all five reviewers. Their unanimous, independent conclusion was that this analysis was insufficient to warrant a change to the current taxonomic status of White Bluffs bladderpod. All five peer reviewers indicated that this study was inconclusive as to the taxonomic status of tuplashensis. Peer reviewers stated that the genetic markers selected for this study were insufficient for determining differences between closely related taxa in the genus Physaria. In addition, all peer reviewers stated that too few samples were collected to adequately characterize genetic diversity and compare tuplashensis and douglasii under the study design. We find the peer reviewers’ critiques of Anderson 2013 to be well-reasoned. Anderson examined only three samples of White Bluffs bladderpod, and he acknowledged that there were “too few samples for statistical validity.” Therefore, the Service, consistent with the currently accepted taxonomic status, affirms its previous determination that the White Bluffs bladderpod is a distinct subspecies.”

    Maybe this bladderpod plant isn’t especially worth saving, I don’t know. But judicial deference to agency scientific conclusions is the general operative rule, most often it’s used to fight off environmentalist scientific challenges. If we do indeed change the law “as to what good science is”, then Doc Hastings may be unhappy to find out he got what he wished for.

  3. Hi Guy:

    I find the large amount of time and effort used to determine if a very minor subspecies (assuming that designation can ever be truly established) of the mustard family qualifies for ESA “critical habitat” designation more than a little unsettling.

    I agree with you that Hastings (Doc is a common nickname — remember Doc Gooden, the baseball pitcher, or Doc Severinsen, the musican? It doesn’t have anything to do with a doctorate, although it is a nickname for medical doctors and dentists, too) is wrong to state: “The law has to be better defined as to what good science is.” I think that is irrelevant for the most part. My thought is that the law needs to better define what a “species” is — and then to further determine which species are actually worth serious attention, given evolution, other species, the economy, etc.

    Maybe the law should simply be retitled: “The Endangered Species and Possible Minor Sub-species Act for Taxonomist and Lawyer Job Security” or something like that. The enormous expense that has gone into this law when compared with the piddling results (species-wise) seems more than odd. It’s a 40-year old out-dated and well intended law that has produced more social, economic, legal, and biological problems than it has ever resolved. I think Hastings is right to have it reexamined at this time. Better late than never, in my opinion.

    • Bob, I like to remind my microbial ecology students that there are no fungi on the ESA list, nor bacteria, nor protists, and there never will be, the way the law is written. Yet, those groups dominate life on earth, they will keep on truckin’ when we humans are gone, and we wouldn’t last more than a few days without them. Not to mention the nematodes, most abundant animals on earth (so I guess few are actually endangered, although the guinea worm may one day be eradicated, and has it’s own ‘Save the Guinea Worm Foundation’, which is a pretty good example of “worst available science” http://www.deadlysins.com/guineaworm/ ) The Giant Palouse Earthworm was a hard ESA-listing sell (it didn’t make it) for some pretty good reasons, including that even those most expert at picking up a shovel and finding it (one of my colleagues is a GPE expert) typically only find… half a worm 🙂 I always assumed Hastings was named after a Doc Holliday, a real dentist (and gunslinger) who was shot in the hip, whereas Hastings mostly only shoots from the hip. Hard to disagree with your opinion of the bladderpod though, sounds like some kind of incontinence device….

  4. I find it ironic that many species on the ESA list made the jump from varmint to “charismatics.”
    What should really happen is, priorities should be set. Uncle Sam gets to save the top 25 or so, while the rest fall under, You List It, You Own It. This would take care of the massive cost-burden shift that exemplifies the ESA in action.
    If you own it, you lease the habitat, you pay for depredation, you sell the harvest if you can’t afford the depredation.
    Another thing would be to allow non-governmental units to breed species of concern and propagate them, like the whitebluff podbag or whatever….subject to an EIS for reintroduction, of course. That way we’d save the species that have value to the folks doing the saving.

  5. We would all like to play God, wouldn’t we (and decide what species are worthless)? Well, Congress thought about that and reserved that power to a select few. It addressed the Tellico Dam/snail darter conflict by adding an Endangered Species Committee (‘God Squad) that may waive the substantive requirements of ESA that prevent extinction. (The Committee consists of some cabinet officials and representatives of affected states.)

    It would perhaps make some economic sense to move this provision into the listing process to avoid wasting time on listing species that we would later decide not to protect. However, I suspect it would be politically more difficult to announce that a species is totally worthless than to decide in a specific situation that its value is outweighed by a particular proposed activity.

    (By the way – I thought this was a good example of how to ‘consider’ and determine (and document) what is the best available science.)

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