REGULATIONS
On June 22, the Fish and Wildlife Service and National Marine Fisheries Service proposed (for public comment by August 23) a new set of regulations for administering the Endangered Species Act, which for the most part cancelled many of the changes adopted by the Trump Administration. This follows litigation that resulted in the Trump rules being kept in place pending this action by the Biden Administration. The changes are in three rules governing these main topics:
- Interagency consultations under ESA section 7, including clarifying the distinction between the environmental baseline and effects of the action
- Procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4, including loosening criteria for designating unoccupied habitat, validating the role of long-term effects such as climate change, and removing economic considerations from this scientific process
- Reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all species. listed as threatened under the statute unless USFWS issued a species-specific rule
While those who liked the Trump version would be expected to criticize all of this, the conservation organizations are not entirely happy that some of the Trump changes have been retained. A couple of key ones noted by the Sierra Club include:
“One such regulation severely undercuts critical habitat protections. The policy says a development project must affect critical habitat “as a whole” before alternative projects are considered. This would protect a species with a small range because a major infrastructure project would likely destroy its entire area, and thus it would be hard to approve such development. Not so for species with large ranges, like northern spotted owls and gray wolves. There would never be an instance where habitat was destroyed as a whole for a species whose range includes hundreds, thousands, or even millions of acres.”
“Another missed opportunity, conservationists say, was the chance to update the definition of “environmental baseline,” a term used to describe the habitat of a listed species before federal agencies begin a project. Agencies are supposed to evaluate whether their activities jeopardize a species’ survival and recovery. The Biden administration decided to keep the 2019 rule that allows officials to overlook the cumulative effects of past decisions for ongoing projects. Dams in the Pacific Northwest, for example, have pushed salmon and trout runs to the brink of extinction. When a federal agency is looking to extend a dam’s operating license or approve a new dam operating plan, its consultation with the wildlife agency shouldn’t ignore those past effects on the species’ biological condition.” (For land management agencies, this might apply to something like roads.)
On July 3, the Fish and Wildlife Service adopted a final section 10(j) rule that would allow it to establish experimental populations of endangered species in places outside of their normal historical range. This is primarily in response to changes in species’ habitat resulting from climate change:
“Through this rule change we are adjusting our regulatory authority to allow us to adequately respond to these potential scenarios in circumstances where it may not be possible to recover a species within its historical range because of loss or alteration of some or all its suitable habitat,”
LITIGATION
Court decision in Maine Lobstermen’s Association v. National Marine Fishery Service (D.C. Cir.)
On June 16, the circuit court reversed a district court decision and invalidated a regulation issued by the National Marine Fisheries Service to protect Atlantic right whales from lobster and crab fishing activities. The case is viewed as significant because it discusses and dismisses the use of the “precautionary principle” where there is scientific uncertainty under the Endangered Species Act.
NMFS consulted with itself on the regulation to determine if jeopardy would be likely. In its Biological Opinion, NMFS concluded that federal fisheries entangle more than 9% of right whales each year. According to the court, to reach this estimate, the Service put aside the data on confirmed entanglements and relied instead upon a “scarring analysis” from a 2019 study, noting “This approach provides the benefit of the doubt to the species and a more conservative estimate of total right whale entanglements.” NMFS stated that “uncertainty is resolved in favor of the species” and that it generally “select[s] the value that would lead to conclusions of higher, rather than lower, risk to the endangered species.” To defend its use of the worst-case assumptions, the agency pointed to a line in a House Conference Report for the 1979 amendments to Section 7 of the ESA, which stated that “this language continues to give the benefit of the doubt to the species.” In its consulting role, NMFS concluded that the regulation would not jeopardize the species. In adopting the regulation, NMFS acknowledged that its “model outputs very likely overestimate the likelihood of a declining population.”
The court declined to give deference to the agency, and held the BiOp was arbitrary because in the administrative record NMFS had erroneously claimed that its position was required by the ESA’s legislative history, and because its current “policy” on resolving uncertainty using the precautionary principle conflicted with its prior (opposite, under the Trump Administration) position. In addition, the court stated:
“Statutory text and structure do not authorize the Service to “generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species” whenever it faces a plausible range of values or competing analytical approaches. The statute is focused upon “likely” outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic…
If brute uncertainty does make it impossible for the Service to make a reasoned prediction, however, the interpretive rules supply a ready answer: The Service lacks a clear and substantial basis for predicting an effect is reasonably certain to occur, and so, the effect must be disregarded in evaluating the agency action.”
However, the court left the regulation in place, concluding that NMFS might be able to justify it on remand. (Perhaps meaning, “if they say it in a different way.” It may also be possible for the consulting agencies to interpret a study that uses the precautionary principle as the best available science for predicting likely outcomes.) Here is another summary of the case.
“Greenwire,” in its “occasional series” discusses the role of litigation in implementing the Endangered Species Act. Some highlights:
During President Ronald Reagan’s first three years, 22 species were listed as threatened or endangered. By contrast, 100 species got protections in the Carter administration’s first three years. In response, a frustrated Congress in 1982 amended the law to add deadline teeth.
A 2017 Government Accountability Office study found that plaintiffs filed 141 such ESA missed-deadline suits between fiscal 2005 and 2015.
“The Fish and Wildlife Service knows the workload, and it refuses to ask for enough money to get the work done,” Suckling (Center for Biological Diversity) said, “and then when it doesn’t get the work done, it goes to the judge and says, ‘Your Honor, I don’t have enough money.’”
“Of our total revenue in a given year, only about 5 percent comes from legal returns,” Suckling said. “It’s really just not that much money, [and] settlements are good for everybody.”
“We could avoid having to fully litigate cases and use scarce resources to do so if the agency would agree to settle cases more,” said Larris of WildEarth Guardians, “but they much more often decline to settle.”
In what’s still one of the most comprehensive studies of its kind, Biber and co-author Berry Brosi, a biologist now at the University of Washington, assessed the role played by petitions and litigation with hundreds of species. They concluded, in a 2010 issue of the UCLA Law Review, that species listed as a result of a petition or litigation faced greater threats than species listed on the agency’s initiative. Biber said he believes the 2010 conclusions remain valid, saying that overall, petitions and litigation “are beneficial [in] ensuring that the species most at threat are protected.”
Former FWS Director Dan Ashe, who oversaw the agency during the Obama administration and now is the president and CEO of the Association of Zoos and Aquariums, assessed that “litigation overall has been beneficial” in sustaining a focus on protecting species.
This is interesting. Controversial?
On July 3, the Fish and Wildlife Service adopted a final section 10(j) rule that would allow it to establish experimental populations of endangered species in places outside of their normal historical range. This is primarily in response to changes in species’ habitat resulting from climate change:
“Through this rule change we are adjusting our regulatory authority to allow us to adequately respond to these potential scenarios in circumstances where it may not be possible to recover a species within its historical range because of loss or alteration of some or all its suitable habitat,”
Regulators gotta regulate. So first, you manage where endangered species are.. then there’s “where they could be in the future based on where they are today” (unoccupied critical), then it’s only natural to expand to “stick them other places that we think might possibly have them in the future.”
Predicting the future of organisms and climate and their interactions is difficult or impossible, from this biologist’s viewpoint. Whatever happened to “ecosystems are more complex than we think, they are more complex than we can think?” but we can predict where future frogs might thrive, and/or disrupt other ecosystems?
ESA commits government agencies to recovery of listed species. The alternative to “replacement” habitat is?
I like the part about critical habitat. Someone building a house in N Mexico on one acre shouldn’t be kept from doing so because of a species whose range is tens of millions or hundreds of millions of acres circling the globe. Sometimes I even wonder why a species that is so abundant is listed.
Well, there is always the old battle of “Lumpers versus Splitters”.
Splitter: “This is a brand new species of butterfly! It has 3 red spots on its abdomen. The common species only has 2.”
Lumper: “Otherwise, it is exactly the same as the common species, populating all the adjacent counties.”
And why is there never a straight answer as to whether spotted owls and barred owls can produce viable young? That used to be considered a way to determine species. I caught a lot of flack (behind closed doors, of course) when I gave a couple of presentations a few years ago to OSU forestry grads and staff, and then to OSU fish & wildlife grads and staff, by comparing barred owls and spotted owls to pygmies and Swedes when it came time to determine a species. Vocalizations, physiology, color, diet, and preferred habitats. Lawyers have figured that it is the splitters who provide the most job security.
I got called out for being a “racist” — which was my exact point. These are races of the same species. Got called that again earlier this year when I mentioned Mexican and Honduran workers on federal land, and mostly by anonymous USFS responders. Apparently they think Mexicans are a race and maybe Hondurans are another race entirely. Bottom line is that it is easier to call someone a stupid name and be dismissive, rather than listening to what they are saying.
ESA: “The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Subspecies are separated but could still interbreed. Maybe Sharon can explain subspecies vs race, and whether it is irrelevant (if not racist) to bring up human races in discussion of wildlife speciation.
You do have a point that “sparred owls” is a thing, and maybe you can find your “straight answer” here: https://www.researchgate.net/publication/228856531_Genetic_Identification_of_Spotted_Owls_Barred_Owls_and_Their_Hybrids_Legal_Implications_of_Hybrid_Identity
It sounds like “interbreeding” is not black and white, but exists on a continuum, and these scientists would likely conclude that interbreeding between these species is difficult/rare enough that they should be considered separate species. The original northern spotted owl listing decision in 1990 said, “The potential for interbreeding of the two species also merits concern and monitoring,” but I didn’t find any follow-up in recent reviews (and I’m guessing the “concern” is about how this could reduce genetically pure spotted owl numbers rather than whether they are different species).
Bob apparently we’ve know since 2004, almost 20 years, that they can and do hybridize. can.
https://conbio.onlinelibrary.wiley.com/doi/abs/10.1111/j.1523-1739.2004.00206.x
Don’t know how hybrids translate into ESA.. but evolution and hybridization (and range expansion) are natural processes so if ecological integrity preserves “processes” then would hybridization be necessary for “ecological integrity”.. and then does it conflict with ESA? Sometimes it’s hard to be a population geneticist… I don’t think many people are aware of how much different value systems are imbedded within different scientific disciplines.
As to being (called) racist, people from Honduras or Mexico can be.. your neighbors, contract workers exploited by contractors (federal and other) and mistreated, or employees of various criminal enterprises, or basically anything else that people are. Seems to me that these are important distinctions to make in the real world if we are to 1) respect our neighbors, 2) protect the exploited and 3) investigate and punish criminals behavior including illegal use of pesticides and herbicides, booby traps and starting fires.
I hadn’t seen this when I responded to Bob, but it reminded me of something I forgot to mention. I think ecological integrity could include hybridization, but in this case the evidence seems to be that the overlap of these species’ ranges is human-induced so not within the natural range of variation.
(Discussed in comments here: https://forestpolicypub.com/2021/11/10/trump-administration-used-faulty-science-to-cut-spotted-owl-protections-wildlife-officials-say/)
Thanks Sharon and John: I continue to think the human analogy is good when thinking of other species. I don’t think it was the intent of the original framers of the ESA to include marginal populations of sub-species, hybrids, or minor racial differences. The environmental law industry seems most responsible for this inflation, and has been well rewarded — at the expense of millions of fellow citizens — for this mostly legal expansion of defining a “species.”
Whether the “science” (“modeling”) used to justify the elimination of logging, irrigation, construction, etc., in favor of these minuscule populations is reasonable or not is another issue. And a good argument can be made that continued logging on our public lands would have been better for spotted owl populations than the predictable wildfires that have followed this failed experiment in passive management.
When we start referring to different human racial populations as “hybrids” and “sub-species,” then I will be more understanding. In the meantime it appears as if the expensive war against barred hoot owls in favor of spotted hoot owls (government-speak = “WSO”) is nothing more than an attempt at racial purity. Now use the human analogy to see if that’s really a good idea or not.
I wish I knew where you are going with this, but I don’t see any reason to try to bring the human species into the ESA context (though we might be endangering ourselves). The framers of ESA explicitly drew a line at subspecies – not races. There are “races” of some wildlife species, but that’s not what these owls are – they are different species because they don’t normally successfully interbreed.
“Genetic purity” is a concept applied to conservation of wildlife species. Westslope cutthroat trout will successfully hybridize with rainbow trout (even though they are different species, but maybe fish are different), but the conservation effort is focused on preserving genetically pure WCT rather than the increasingly common “cutbows.” Same for bison, many of which have domestic cattle DNA.
While I have seen arguments that genes should be the focus of conservation, the first principle of ESA is that humans not cause extinction of a species, and with spotted owls, interbreeding with barred owls (facilitated by human-induced habitat loss) could eliminate the genetically distinct spotted owl species. Meeting the ESA goal of recovering the species requires reducing or eliminating the hybridization threat. I understand there is some debate about whether ESA needs to be clarified with regard to “natural” hybridization, but I don’t think that is what’s going on here.
John: Then “what do you think IS going on?” Just look at the existing list of “endangered species,” look at the waiting list, then look at the sources or incomes and expenditures of the “non-profit” organizations regularly filing lawsuits based on the ESA — paid for by taxpayers — and explain why this is necessary for any reason. Sure looks like a racket, unless I’m missing something.,
That comment was specific to spotted owls – that the Fish and Wildlife Service considers barred owls to be an invasive species, so this is not “natural” hybridization.
Congress obviously thought citizen lawsuits would be necessary for implementing ESA since it included a specific provision to do so.
Hi John: “Congress” is mostly lawyers. To me it looks like they were just looking out for their own — and have been wildly successful to the detriment of most of the rest of us. And with no real benefit to most targeted species’ populations, given the enormous costs that have accrued.
Jon, any species that we didn’t think used to interbreed that now interbreeds you could argue is human-caused; and yet new kinds of hybridization is a natural process.. part of evolution. So it seems like this leads to a philosophical conundrum. I know ESA is a law, but just thinking as an evolutionary biologist here.
An interesting conundrum, and the solution probably means splitting the hair somewhere (maybe in the law). You’ve got obvious human causes (deliberately crossing cattle and bison, or deliberately introducing rainbow trout into cutthroat trout streams), and less obvious ones like facilitating barred owl intrusion into spotted owl habitat or decimating red wolf habitat to the point where the only breeding opportunities may have been other kinds of wolves or coyotes. In the latter case, one argument is to protect these crosses under ESA to preserve the genes. Should we protect barred owls for this reason some day? I’d be interested in an example of “hybridization as a (obviously) natural process,” and wonder how often that might come up in an ESA context.
Ideally we could run the clock back two ways..A. one with Native American/First Nations but not European/African/Asian immigration to North America. B. The other would be no Native Americans either. I guess the only truly “natural” hybridization would be what might have happened in Case B, which we’ll never know.
I guess my point is that North American species have been adapting to humans for 10K years or so via genetic and behavioral changes, hybridization, speciation and so on. Teasing apart the naturalness or not of various factors seems like a difficult or impossible exercise.
ESA becomes relevant where “adaptation”=species extinction.
Hi John: The problem is that no one has any idea where that point is. Does that mean the same for the relevancy of ESA? I personally think so.
Also, if it is a spotted cricket species, does that matter as much as a bald eagle or a moose? I would think not, but the environmental industry seems to think otherwise.
The whole thing has turned into a racket, and increasing wildfires on our public forests are evidence. What good has actually been accomplished for those of us not included in this occupation?
ESA requires that species be listed as endangered when they are “in danger of extinction” based on the best available science. Scientists have a good enough idea. As for the spotted cricket -https://conbio.onlinelibrary.wiley.com/doi/10.1111/j.1523-1739.1987.tb00055.x
Another ongoing development: Congress invokes the Congressional Review Act to void listing rules for the northern long-eared bat and lesser prairie chicken. Biden is expected to veto the resolution.
https://thehill.com/policy/energy-environment/4123561-house-sends-two-resolutions-overturning-endangered-species-rules-to-bidens-desk/