Some Reflections on ESA As Intended and As Lived Out

bffJohn had some comments that got me to reflecting.. from the Canada lynx post.

The Feds are the ones treating endangered species like chess pieces. The Canada lynx is a perfect example. It took nearly a decade and how many rounds of litigation before the FWS issued a warranted finding? And once they were listed, the FWS was supposed to designate critical habitat. What happened? Julie Macdonald, a Bush political appointee with no science background determined that critical habitat should only be designated in National Parks. She resigned when the FWS determined that she monkey-wrenched the lynx critical habitat issue and multiple other determinations. The FWS then designated more than 10 million acres of critical habitat in National Forests. It only took several more years and rounds of litigation.

Enviros don’t view themselves as “morally superior people.” Congress and President Nixon determined that we have a duty as a country to ensure species don’t go extinct:

Nothing is more priceless and more worthy of preservation than the rich array of
animal life with which our country has been blessed. It is a many-faceted treasure, of
value to scholars, scientists, and nature lovers alike, and it forms a vital part of the
heritage we all share as Americans. I congratulate the 93d Congress for taking this
important step toward protecting a heritage which we hold in trust to countless future
generations of our fellow citizens. Their lives will be richer, and America will be more
beautiful in the years ahead, thanks to the measure that I have the pleasure of signing
into law today.

President Nixon, December 28, 1973.

(a) Findings
The Congress finds and declares that–
(1) Various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation.
(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;
(3) these species are of esthetic ecological, educational, historical, recreational, and scientific value to the Nation and its people;
(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants fating extinction 16 U.S.C. §1531.

So I am a scientist, and I am all for trying to keep species around. However it seems to me that, like any noble social goal, like reducing poverty or providing healthcare, the devil is in the details. From my point of view before I retired, there were a number of things that keep it from being a pure exercise.

First is that legal and environmental folks stated that species are a tool to promote a point of view through the courts. Spotted owl- logging, sage grouse- oil and gas. So it is not that simple as a positive vision “let’s all try to save a species.” In fact, that seems to be more the fact on private lands (see the Black Footed Ferret, or Best Ferret Forever, as I liked to call it). Where positive visions are developed, and various instruments used to promote that vision. On public lands, litigation has left more of a “what you can’t do” sort of mentality. Which makes sense if the target is to really stop things you don’t like.

Second is that if you really believe “global climate change will drastically alter the plants and animals who can live on a piece of ground”, then litigating to reduce thinning or prescribed burning is like varnishing the deck chairs of the Titanic. I don’t see how you can hold both thoughts at the same time (we haven’t a clue as to what will happen in 20 years in terms of climate), and (we must not allow this 150 acre thinning project because it might have an impact on lynx). Applying the varnish has a great deal of costs associated with it, and doesn’t work, if the species is not going to be inhabiting those acres anyway.

Third is simply the idea of endangered species. I’m a population biologist, so the term “species” has a meaning for me. Lynx is doing fine in some places. To me, restoring it everywhere it used to be is different from making sure it doesn’t go extinct. Especially when some of those places are further south, see climate change, above. I’m waiting for Californians to reintroduce grizzly to central California. I know this is heretical, but to me it’s not “endangered” if it exists in Canada or Alaska. Extinction to me also has meaning…extinction, not “it’s still around but not in the continental US.” I don’t read the legislation that way, although judges might.

Back when I worked in California, someone dreamed up the idea (external groups with some of our scientists, we heard ) that sugar pine was endangered, so a bunch of folks in my office had to go count (estimate) all the sugar pine. You can drive anywhere from southern Cal to Bly, Oregon, 25 or so years later and see that they are fine. I don’t think that currently widespread species (including whitebark) are really what was intended in the legislation. You see, prediction of what will happen to these trees in the future is not “science”. Counting existing animals or trees could be fact-based. And when you get scientists’ prognostication and pontification (hidden under the mantle of “science”) mixed in with Legal World, it’s really scary, and at the end of the day may not do any good in Physical World.

Fourth is related to the spotted owl example. If we stop doing things, and it turns out that there are other factors (climate change? barred owl?), then the answer is not to stop doing even more of the same things you already stopped. This only makes sense if your original point was to “stop doing things” in the first place.

Fifth is a bit of internal USG dynamics. When regulatory biologists and research biologists and agency biologists disagree, rather than have it be “managed”, I would like to see the debate go on in the public sphere where other knowledgeable folks could participate. There is a disagreement resolution process, but I have heard people tend not to use it as it is potentially bad “work karma” to highlight disagreements. Even when we could all learn from them.

Finally, I had kind of a bad experience when I worked on the Hill. I was the staff assistant for the Congresswoman on the D. Environmental Caucus. We talked a bit about problems with ESA, but rather than reaching across the aisle, the folks felt that it was better to use it as a tool to attack the R’s. When we talk about adaptive management and continuous improvement.. well, that was not the vibe I was getting. If I were going to impanel a bipartisan commission to address the question of updating, I would ask:

1) How is it working? Is it producing desired outcomes? Could these be produced at less social and economic cost, both to others and to the government?
2) What are the problems people are having with the current processes? Could they be resolved through some tweaks?
3) Can we make all the scientific and value discussions more transparent, with public review on the internet of all documents? Can we post also post without paying for them, to the public, notes from settlement discussions between DOJ and plaintiffs?
4) How is the federal land vs. private land working? Are there lessons to be learned?
5) Given the unknowable future of climate change and increasing populations, should we tweak the statute or regulations in any way?

7 thoughts on “Some Reflections on ESA As Intended and As Lived Out”

  1. I agree with JZ, a thoughful discussion on a very difficult topic.

    But here are a few of my thoughts, with a start about the Titanic. Nothing wrong with varnishing the deck of that ship IF you had no idea it would rub against an iceberg someday in the future, and it needed some varnish! We have no real vision of what future climate change will do to our forests and wildlife. We see some trends, but not knowing should not be an excuse to do nothing today.
    You infer that maybe we shouldn’t worry about impacts of thinning today on lynx because we may not have any lynx habitat at all in a decade or two.

    I think that the ESA was designed to keep all our species as long as we can, within the limits of science and reasonable economics. There was no thought given to a major worldwide shift in climate (and impacts on plants and wildlife) when ESA was approved. And I might add, my reading of ESA is that the intent is to keep our USA species and critical habitat intact, regardless of what is out there in Canada or Russia or northern Europe. So any argument that we “have plenty of griz and wolves in Canada” does not meet the intent of our ESA.

    With that said, I will reluctantly agree that our efforts since the late 1960’s to save or retain a handfull of woodland caribou in the Selkirk Mtns. at the Canadian border seems doomed and should probably be halted. The US habitat that once supported a true USA population of these caribou is gone. The tiny herd left along the boundary spends most of their time in British Columbia, and we should sadly write them off.

    All in all, the experts and the public do need to dialog on this complex topic…climate change and biologic issues. How to integrate future, unclear or unknown changes into today’s forest and wildlife decisions. I don’t have the answers, but I would like some, please!

    • Thanks, Ed, I don’t think we should “do nothing”. I think we should do things that make sense. A you point out, some things may not make sense.

      I think that what you said is an important point, “keep species and critical habitat intact”
      That’s the discussion that they should be where they always were (e.g. Griz in California), or where they were more recently, or where they are now. But we reintroduce species where they used to be, sometimes, but not other times. It seems funny to ordinary people to have critical habitat designated for a species that isn’t there, but people hope someday might be there. That’s basically saying that say, the species lynx won’t survive unless it moves to point B where it is not occurring now. But we don’t and can’t know that. That’s where some of the regulations and bureaucracy related to ESA starts to lose people, even people fairly knowledgeable about the habitat and the species.

      And I agree that open dialogue is about the only way we will all get through this.

  2. Sharon: I agree with JZ. Also, I seriously hope you are considering politics in your “retirement.” This is the exact type of thinking we need in Congress today! I’ve pretty much given up on lawyers and judges. And taxpayer-funded “science.”

    Ed: “Not knowing” is actually the perfect excuse for doing nothing — except maybe watching and paying attention (“monitoring”), to see what happens and consider possible responses. Heavy-handed actions intent on dealing with an unknown future can be (“usually are”) both costly and counter-productive — especially of feared future conditions that (usually) don’t take place. Or, “unintended consequences” — either one.

    We also disagree on the original intent of the ESA, and I don’t know anything about the caribou you use as an example, but I am impressed with your willingness to be practical and your interest in achieving reasoned answers: qualities I really admire in other people, and am always looking to improve in myself.

    We probably disagree, too, on Global Warming, but that’s another discussion!

    • Bob, thanks for the compliment. I lack numerous qualities useful in politicians, however I did volunteer to work on environmental policy on a campaign in which I think the candidate is pretty open-minded and interested in working across the aisle. Also when I attended a fundraiser for him in a previous election (he was beaten by another member of his party with more bucks from outside the state) he had a nuanced view of climate change and not just his party line. Wonks find that kind of thing worthy of support (there is hope!).

      We’ll see if my soul will begin to shrivel under the hyperpartisan atmosphere of an election and I will give up..

  3. Seventh, why should application of the “precautionary principle” assume that “doing nothing” is the safest precaution, especially when:

    Eighth, so many species (Kirtland’s warbler, red-cockaded woodpecker, numerous plants, etc) have ranges that have been limited by the elimination of historic fire regimes which can no only be safely and economically simulated by, guess what, logging!

    • I might add “grizzly bear” to that list Bill. The ESA had nothing to do with the grizzly population in Yellowstone growing from 200 bears in the 70’s to 600 today. A one million acre wildfire had everything to do with it.

      Awhile back I was reading an EIS for a timber sale in the CAbinet Yaak region of the Kootenai Nat. Forest in Mont….this is a grizzly bear recovery whatever. The USFS deleted “obliterating many miles of old logging roads” from the project in response to comments from the USFWS that the area was prime grizzly bear habitat. What made it prime grizzly bear habitat? The old logging roads crisscrossed through 1000’s of acres of old clearcuts from the 60’s and 70’s.

      One has to wonder, in the absence of any wildfire…and in the total absence of any recent clearcutting in the Cabinet-Yaak,what that will do to the 45 grizzly bears clinging to the region. Has anyone ever thought how beneficial it might be to this “fringe” population to clearcut areas…and then close the roads afterwards(as we all know the average bear is sensitive to roads…and backpackers)? It will be interesting to see how British Columbia does this exact same thing now…and how it has affected their population of grizzlys. Next on to- do list. What do you “ologists” do all day?


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