Some Reflections on ESA As Intended and As Lived Out

John 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?