Doc Hastings vs. ESA: Here’s Why

This editorial by Doc Hastings was published on the Salem Capital Press website yesterday. Their website has the slogan: “The West’s Ag Website,” and their focus is agricultural businesses in the western US:

Endangered Species Act needs reform

By DOC HASTINGS

For the Capital Press

U.S. Rep. Doc Hastings (R-Wash., 4th District)
The federal Endangered Species Act needs reform, and here’s why.

From endangered salmon to the spotted owl, the Pacific Northwest has been the poster child when it comes to the Endangered Species Act. This is why, last year, I joined Rep. Cynthia Lummis from Wyoming and 11 of my colleagues, representing communities from across the country to launch the ESA Congressional Working Group. The purpose of this Working Group was to start an open and honest conversation about what works and what hasn’t with the ESA, which just celebrated its 40th anniversary.

The intent of the Endangered Species Act was to preserve and protect key endangered species, and there is still widespread support for that goal today. However, a lot has changed in the past 40 years. I believe it’s not only common sense, but the responsibility of Congress, to examine this law to see if there are ways it could be improved and updated for species and people.

Recently, the Working Group released its final report of findings and recommendations. It reflects hundreds of comments from the public, and testimony from nearly 70 witnesses that appeared before the Working Group or at House Natural Resources Committee hearings.

We found that there is still strong support for conserving endangered species, but that there are four key areas where improvements could be made to make the law more effective for species and helpful for our communities.

The first is to restore the goal of species recovery and ensure greater transparency and prioritization of ESA decisions. Today, too much focus is put on listing new species instead of recovering species and taking them off the list. The ESA only has a 2 percent recovery rate, and I believe we can do better. Instead of enforcing deadline-driven decisions or litigation — as we saw with the recent flawed listing of the White Bluffs bladderpod in Franklin County, Wash. — we should ensure that federal agencies take the time to work with those who live and work around these species, and who should have an active role in deciding how best to improve their recovery. A specific target for what recovery means should also be identified when the species is listed.

The second area for improvement is ESA litigation and settlement reform. The ESA today has become a tool for never-ending lawsuits that often have more to do with limiting the activity of humans than achieving recovery for plants or animals, and drain time and money away from actual recovery efforts. To enact serious reforms to the ESA, we must begin by discouraging ESA lawsuits, limiting excessive taxpayer-funded attorney fees and bringing some sunlight to closed-door settlement agreements that can result in the listing of hundreds of species.

The third area for improvement is to empower states, local governments, tribes and private property owners on ESA decisions that affect them, their citizens, and their land. The ESA Working Group heard countless stories of how state, tribes and local governments are often more successful at species conservation but are, at times, undermined by the federal government. While not perfect, the Washington State Department of Fish and Wildlife has been far more successful in working with local residents to manage wolf populations than the federal government has in the part of the our state that the species is still federally listed.

The fourth area for improvement is transparency and accountability of ESA data and science. Decision-making should be based on the best available scientific data, instead of backroom political deals or court-driven deadlines. In the case of the White Bluffs bladderpod, the federal agency failed to even take a DNA test to figure out whether the plant was genetically different than countless bladderpod plants in other parts of the country, and when an outside party provided proof that it was the same, they moved forward with the listing anyway.

There are many other specific recommendations included in our final report, which can be found at http://esaworkinggroup.hastings.house.gov.

It’s my hope this report will further the discussion on the ESA and serve as a starting point as we move forward with commonsense legislative solutions. My intent has never been to introduce sweeping legislation to overhaul the ESA. Instead, I believe there are thoughtful, sensible, and targeted proposals that would address many of the issues highlighted in this report. I look forward to working with my colleagues on both sides of the aisle in the coming months to consider commonsense, targeted ways to improve and modernize this law for the 21st Century.

Rep. Doc Hastings, R-Wash., is chairman of the U.S. House Natural Resources Committee.

24 Comments

  1. The last sentence of the second graph tells the whole story of how Hastings sees things, not acknowledging that people are species, too (Homo sapiens), and we can’t separate ourselves from the web of life.

    All the nitpicking over technical details of the ESA misses the larger picture. There is a biodiversity crisis — a wave of extinction driven by human activities — that threatens to unravel the web. Certainly, the ESA could be improved to directly acknowledge those facts and figure out how to best deal with them, rather than trying to create loopholes that allow yet more harmful activities.

    Making this about jobs and the economy is misleading. Fact is, we are consuming resources at an unsustainable rate in order to perpetuate an unsustainable lifestyle. It’s not going to end well.

    • Bob B.- I agree that we can’t separate ourselves from the “web of life” but I don’t make the same connection you do between Hastings’ statement and that. After all, NEPA talks about harmony between people and the environment. and NEPA’s a good law, isn’t it?

      “The web” unraveling is an idea, as ecosystems “collapsing” is an idea. It is a fearful idea without a basis in observation of the natural world. Fear is often used as a tool to make people not question authority, or to determine that the “ends” (keeping our world from “collapse”) justifies the means (backroom deals and questionable science).

      It seems to me that (politics aside) he agrees that transparency and open discussion should guide these efforts. Is that debatable?

      But if the underlying problem is our “unsustainable lifestyle” maybe we should outlaw skiing (think of all those cars idling on I70!) not keep a couple farmers in Oregon or wherever from irrigating their crops. Because it seems like the rich and powerful get to do what they want to do, but others (less politically powerful) get their activities micromanaged.

      • Sharon, your points are well taken. I probably wouldn’t quite outlaw skiing, but as I’ve suggested elsewhere, the FS needs to seriously look at carbon-neutral alternatives at the start of any NEPA analysis from now on. I would definitely question continued over-use of fossil fuels for recreation. I understand that we have to keep people warm and that people need to get around, but burning fossil fuel in ATVs and for running ski lifts and snowmaking systems is really questionable at this point.

        But more specifically related to the post, I really think that Doc Hastings doesn’t get it at a really fundamental and crucial level – WE are the endangered species. The Earth will survive and other species will evolve, but we’re really at a crucial crossroads with regard to our own survival.

        I know it takes getting past a lot of hubris to internalize that, but all our tech know-how, all our planning, all our tap-dancing around details of conservation plans, etc. is going to get us burned.

  2. a couple observations:

    1) resource extractors seem to desire to change laws in direct proportion to the degree that they have teeth that might mean they actually work. examples: the NFMA viability regs, the ESA. Hastings admits that the law is widely supported but fails to see that it order for it to work it must force changes in the status quo.

    2) Hastings fails to mention Congress’ failure to fund adequate implementation of the ESA. He thinks there’s too much emphasis on listing species instead of recovery. he ESA is not being implemented if imperiled species are not being listed. The lack of recovery is largely a result of bureaucrats who are too scared to use the ESA authority to change the status quo as much as needed.

    • 2ndLaw:

      1) We are all “resource extractors.” Learn to live with it.

      2) Those are all obviously your opinions, and you’re welcome to them. One more reason I don’t pay much heed to most anonymous bloggers.

      • The real impact of the ESA is its enablement of cost-shifting. Want to stop something you don’t like? Find a species that inhabits the area, preferably one about which little is known so you control the “science.” It’s even better if the species reproduces slowly and doesn’t get along well with people or other animals. Then sue.
        Amazing how that works, eh?

  3. The real impact of ESA is cost accountability (shifting costs to where they belong). To the extent it internalizes real (though hard to quantify) costs of resource extraction it promotes more sustainable lifestyles.

    I like how Hastings narrows the intent of ESA to protection of only ‘key’ endangered species.

    I’d also like to hear more of the “countless stories of how state, tribes and local governments are often more successful at species conservation.” The only example he provides is about ‘managing wolf populations,’ which mostly seems to mean killing them.

  4. After a long period of time where species were blocked from being listed we have a few that are long over-due, like the Oregon Spotted frog. The goal of recovery requires cooperation at the State level and that level must contain a rubber mallet if not a hammer. “The economy” isn’t going to get any better when certain parts are always in jeopardy. For example, everyone knows that habitat degradation is a leading cause of salmonid decline, but there really isn’t too much excitement about the value of the fishery at the state level when commercial development is on the line.

    I can hang with improving the legal process, but I don’t think Doc has the process correct.

    Third – The public does have a say in listings during the comment period. However, many people don’t engage during the planning period. The ESA is a national law. That is, the West doesn’t have exclusive hardship or opportunity or resources. The ESA is not perfect but I haven’t discovered a state law that is tougher than the federal law. This makes me pause when it’s suggested that the states can do a better job. They could, but they haven’t.

      • Bob:

        Why is it so common for people who focus on “listings” to invoke “opposition from fossil fuel and real estate interests” when their favorite species/sub-species/varietal is being questioned for being put on a list? I’m guessing there’s lots of students, libertarians, politicians, ranchers, miners and many, many others that question these proposals as well. Without being bought out or mind controlled (or however they are supposed to do it) by advertisers. That’s why so many lawyers become involved.

        Personally, I think society has gone far (far) beyond the original intent of Congress to provide for the protection of key (actual) species, and there are lots of great reasons for keeping current listings limited to a dull roar — but does that mean I’ve somehow been bought off by the Koch brothers or Republican Realtors? That would be a little idiotic — or at least demeaning or insulting — wouldn’t it?

        My problem isn’t so much with the wolf people or owl people or bladderwort geneticists as it is with the “critical habitat” land-grab that typically goes with these listings. That’s where I think science is being seriously politicized and critically weakened in both functionality and in public perception.

        • “critical habitat” land-grab

          This is a misperception or misrepresentation that I hear so often that I suspect it IS being promoted by a tentacle of the Koch brothers. Critical habitat applies only to the ESA consultation process, which occurs only when there is a federal action. That means it’s on federal land, or requires a federal permit.

          If a use of private land requires a federal permit, listing under ESA already prohibits jeopardy. The effects of critical habitat designation are generally coextensive with those for jeopardy. In the rare case where critical habitat is actually a controlling factor, the use may be precluded only where there is ‘adverse modification’ of critical habitat – which is much more demanding than it sounds. In which case, mitigation measures may still allow the action to proceed.

          ‘Take’ of endangered (and some threatened) species is already prohibited on private land by ESA, and that can sometimes include damage to habitat (critical or otherwise).

          Given all of this, it would be interesting to hear about examples where use of private land has been stopped solely by critical habitat designation.

          • Hi Jon:

            I wasn’t talking about private land, I was talking about the USFWS, NOAA and EPA taking control of federal resource management options from USFS, BLM, and NPS. The evidence is everywhere “critical habitat” can be found. And, I think there has been resulting negative impacts on local families, businesses, and functional infrastructure in many of these locations.

            • Sorry – I’m used to seeing that reaction to proposals to designate private land as critical habitat. On federal land, critical habitat is a big zero. The regulatory agencies are on record with their opinion that critical habitat designation adds little or nothing to the jeopardy requirements imposed by the listing itself, and that’s why they typically make it a low priority.

  5. ESA not perfect? Keep in mind that one of the four authors was chief of law enforcement for USFWS at the time. Now deceased, some animal-rights group now has an annual award named for him. Does that signal a private agenda and a conflict of interest. Heckyah.
    And Bob is right about critical habitat. Listing proponents (all self-interested professionals, versus a volunteer public) are less concerned with actual species stability than they are about getting a legal lever on land use decisions. There’s a reason that wide-ranging, slow-reproducing, and SPARSE species are sought for listing — they have maximum acreage impact over the longest period of time.

  6. Jon:

    I’m not familiar enough with federal management regulations to know what “the jeopardy requirements” are, but I do know that spotted owls, black woodpeckers, marbled murrelets, and coho salmon listings have caused major social, economic, and ecological problems in the PNW. Because of so-called “critical habitat” regulations. That is a lot more than “zero” impact. Unless I’m misunderstanding what you are saying.

  7. Bob – There is a problem with the terminology here, but maybe that is not the point. I won’t disagree that ‘listings’ can cause disruption. The point I was making is that listings (and their effects) are separate from critical habitat designation. They are both supposed to occur at the same time, but in practice critical habitat designation is often delayed.

    I’m not sure what you mean by critical habitat ‘regulations.’ When a species is listed, ESA then requires that no federal action may “jeopardize the continued existence” of the species. ‘Jeopardize’ means to “reduce appreciably the likelihood of both the survival and recovery” of the species. Damage to habitat is one thing that can cause jeopardy, so if that is already prohibited designation of critical habitat generally wouldn’t add any new restrictions.

    I’ll qualify my ‘zero impact’ comment in one situation. That is when critical habitat is designated in areas where the species is not currently ‘present.’ That could create a situation where the no-jeopardy requirement doesn’t apply, but the critical habitat requirement does, so it could have an effect. I don’t think that happens often or applies to the species you mentioned. (The litigation-driven designation of jaguar critical habitat yesterday – 17 years after listing – might be one of the exceptions.)

    • Damage to habitat is one thing that can cause jeopardy, so if that is already prohibited designation of critical habitat generally wouldn’t add any new restrictions.

      I think this is true, in terms of actual regulations. But in terms of a proposed federal project, I think the bar is quite a bit lower for the USFS (for example) to claim “no jeopardy” when there’s no critical habitat in the project area, compared to when there is critical habitat present. In litigation, the absence of critical habitat is a point that USFS will make early and repeatedly, if it can, and (I think) often effectively. I don’t know if that’s what Bob had in mind, but even though critical habitat may not reflect a regulation per se, it probably affects the courts’ determination of whether ESA law is being followed or not.

      • In my experience with the California Spotted Owls (not listed) and Northern Goshawks (threatened), core nesting habitat has been set aside, with little or no management. Since timber projects don’t happen in that core habitat, opponents seek to stop projects that occur in places that almost meet those nesting habitat characteristics. Mainly, wherever there is an overabundance of medium sized trees to thin, activists want to add those acres to more core nesting habitat, even when no nests are present. Every timber sale here has fuels as a main purpose and need. Additionally, on-the-ground surveys are done, as well, during the prep phase. There is still controversy over whether these birds require thick old growth stands to nest in, or whether they simply prefer them over more generic stands 80-120 years old. Certainly, goshawks settle for much thinner stands in the Black Hills, as opposed to nesting areas in California. So, clearly, the birds can survive and reproduce in less optimal situations. Generally, 5000 acres of the best habitat is established for nesting pairs.

      • I like the argument that if there is designated critical habitat, damage to that habitat is more likely to result in jeopardy to the species. I don’t think that is an intended result of the ESA scheme (which has separate requirements for critical habitat), but it makes sense. Note that the argument does cut both ways, so I wouldn’t expect the government to apply it too liberally. (Also, it is the consulting agency that actually performs the jeopardy analysis, and I wonder if this reasoning is part of their protocol for doing so.)

Leave a Reply

Your email address will not be published. Required fields are marked *