APRIL-MAY2008
Since '01, Guarding Species Is Harder
Endangered Listings Drop Under Bush
A black-tailed prairie dog feeds in
Kansas's Logan County in this file photo from 2006. A
Western conservation group is suing the federal
government to force it to respond to a petition to list
the animal as endangered. (By Steven Hausler --
Associated Press)
By Juliet
Eilperin Washington Post Staff
Writer
Sunday, March 23, 2008; Page A01
With little-noticed procedural and policy moves over several years, Bush administration officials have made it substantially more difficult to designate domestic animals and plants for protection under the Endangered Species Act.
Controversies have occasionally flared over Interior Department officials who regularly overruled rank-and-file agency scientists' recommendations to list new species, but internal documents also suggest that pervasive bureaucratic obstacles were erected to limit the number of species protected under one of the nation's best-known environmental laws.
The documents show that personnel were
barred from using information in agency files that might
support new listings, and that senior officials
repeatedly dismissed the views of scientific advisers as President
Bush's appointees either rejected putting imperiled
plants and animals on the list or sought to remove this
federal protection.
Arizona Striped Whiptail
The Arizona striped whiptail, imperiled
because of habitat destruction, is one of 681 species
that the conservation group WildEarth Guardians filed
suit against the U.S. Fish and Wildlife Service to
protect. In the past two years, no U.S. plant or wildlife
species has been added to the endangered species list.
(Photos and information courtesy of WildEarth Guardians)
Officials also changed the way species are evaluated under the 35-year-old law -- by considering only where they live now, as opposed to where they used to exist -- and put decisions on other species in limbo by blocking citizen petitions that create legal deadlines.
As a result, listings plummeted. During Bush's more than seven years as president, his administration has placed 59 domestic species on the endangered list, almost the exact number that his father listed during each of his four years in office. Interior Secretary Dirk Kempthorne has not declared a single native species as threatened or endangered since he was appointed nearly two years ago.
In a sign of how contentious the issue has become, the advocacy group WildEarth Guardians filed a lawsuit Wednesday seeking a court order to protect 681 Western species all at once, on the grounds that further delay would violate the law. Among the species cited are tiny snails, vibrant butterflies, and a wide assortment of plants and other creatures.
"It's an urgent situation, and something has to be done," said Nicole Rosmarino, the group's conservation director. "This roadblock to listing under the Bush administration is criminal."
Developers, farmers and other business
interests frequently resist decisions on listing because
they require a complex regulatory process that can make
it difficult to develop land that is home to protected
species. Environmentalists have also sparred for years
with federal officials over implementation of the law.
Huachuca Woodlandsnail
The population decline of the Huachuca
woodlandsnail is due to loss or degradation of springs
and wetlands because of overgrazing, timber harvesting,
altered fire regimes, drought, mining, water
developments, and recreation in Arizona, Mexico, and New
Mexico.
Nevertheless, Presidents George H.W. Bush and Bill Clinton added an average of 58 and 62 species to the list each year, respectively.
One consequence is that the current administration has the most emergency listings, which are issued when a species is on the very brink of extinction.
And some species have vanished. The Lake Sammamish kokanee, a landlocked sockeye salmon, went extinct in 2001 after being denied an emergency listing, and genetically pure Columbia Basin pygmy rabbits disappeared last year after Interior declined to protect critical habitat for the species.
Administration officials -- who
estimate that more than 280 domestic species should be on
the list but have been "precluded" because of
more pressing priorities -- do not dispute that they have
moved slowly, but they dispute the reasons. Bush
officials say they are struggling to cope with an
onslaught of litigation, but internal documents and
several court rulings have revealed steps the
administration has taken to make it harder, and slower,
to approve listings.
Maple Leaf Oak
Maple leaf oak is known to exist in only
four sites in the world, with only a few hundred
individuals remaining in the Magazine and Ouachita
mountains in Arkansas. The species is threatened by
mining, which alters groundwater patterns and diverts
water away from the trees.
Fish and Wildlife Service Director Dale Hall said his agency, which decides on most proposed listings of endangered species and their critical habitat, has been hamstrung by a slew of lawsuits and has just begun to dig out. He told the House Appropriations interior subcommittee last month that his agency will make decisions about 71 species by Oct. 1 and an additional 21 species a year later.
"Lawsuits, starting in the early
'90s, have really driven things," Hall said, adding
that the administration has tried to keep species from
declining to the point where they need to be listed.
"I'm feeling pretty good we're back on track to do
the job the way it's supposed to be done."
San Xavier Talussnail
The San Xavier talussnail is found only in
Arizona and eats fungus, decaying plant material, and
occasionally young shoots or leaves. There is only one
population of this land snail on the planet, and it is
located in an area of growing urban development and
active mining.
In court cases, however, a number of judges have rejected decisions made by Hall's agency and have criticized its slow pace. On March 5, a U.S. district judge in Phoenix ordered Interior to redesignate bald eagles in Arizona's Sonoran Desert as threatened after the agency delisted the entire species last summer.
Three weeks before Interior officials rejected a petition to keep the desert eagles listed, a scientific advisory panel it convened wrote that the population "appears to be less viable than populations in other parts of the country" because it had fewer than 50 nesting pairs. Survival usually requires 500 breeding pairs.
The Fish and Wildlife Service never released that report, along with internal agency documents showing "substantial" evidence that the Arizona eagles should be kept on the list: Both the report and the documents were unearthed under the Freedom of Information Act by the Center for Biological Diversity, an advocacy group.
In another case, Judge William Alsup of the U.S. District Court for the Northern District of California ruled in late January that Interior violated the law when it did not act on 55 endangered and threatened foreign species that the department had described as qualified to be listed. The department has listed six foreign species during Bush's term.
"If the Service were allowed to continue at its current rate, it is hard to imagine anytime in the near or distant future when these species will be entitled to listing," the judge wrote. "Such delay hardly qualifies as 'expeditious progress' and conflicts with the purpose of the ESA to provide 'prompt action' [if there is] substantial scientific evidence that the species is endangered or threatened."
At NatureServe, a private nonprofit that does independent scientific assessments that the government often uses in crafting conservation policy, Vice President and Chief Scientist Bruce Stein said the decline in listings has been "dramatic. . . . It shows a shift in both funding and policy priorities."
In one such shift, senior Interior
officials revised a longstanding policy that rated the
threat to various species based primarily on their
populations within U.S. borders. They then argued that
species such as the wolverine and the jaguar do not need
protection because they also exist in Canada
or Mexico.
Sunnyside Green-gentian
Threats to the Sunnyside green-gentian,
which dwells in Nevada and Utah mineral salts, include
off-road vehicles, a proposed MX missile system, and a
major highway constructed in 1981, according to WildEarth
Guardians.
In another policy reversal, Interior's solicitor declared in a memo dated March 16, 2007, that when officials consider whether a significant portion of a species' range is in peril, that "phrase refers to the range in which a species currently exists, not to the historical range of the species where it once existed." The memo added that the Interior secretary "has broad discretion" in defining what is "significant."
For a two-year period, Fish and Wildlife also said
that if the agency identified a species as a candidate
for the list, citizens could not file petitions for that
species, effectively eliminating any legal deadlines. The
result, said Kieran Suckling, head of the Center for
Biological Diversity, was to create "endangered
species purgatory." In 2003, U.S.
District Judge Reggie B. Walton overturned the policy
on the grounds that it allowed the agency to "avoid
their mandatory, non-discretionary duties to issue
findings" under the act.
.March 19, 2008
Some 8,000 to 11,000 bats died in several Albany,
N.Y.-area caves and mines last winter, more than half the
bat population in those hibernacula. Many of the dead
bats had a white fungus on their muzzles, dubbed
white-nose syndrome. This year, biologists are seeing
hibernating bats die by the hundreds - probably thousands
- in New York, southwest Vermont and western
Massachusetts.
In addition, the agency limited the information it used in ruling on the 90-day citizens' petitions that lead to most listings. In May 2005, Fish and Wildlife decreed that its files on proposed listings should include only evidence from the petitions and any information in agency records that could undercut, rather than support, a decision to list a species.
Unsigned notes handwritten on May 16, 2005, by an agency official, obtained under the Freedom of Information Act, attributed the policy to Douglas Krofta, who heads the Endangered Species Program's listing branch. The notes said employees "can use info from files that refutes petitions but not anything that supports, per Doug."
Hall said the agency abandoned that policy in late
2006, but he issued a memo in June 2006 that mirrors
elements of it, stating, "The information within the
Service's files is not to be used to augment a 'weak'
petition."
Turtles are
a Tribally significant species to the St. Regis Mohawk
Tribe. Credit: DJ Monette / USFWS
As listings have slowed, lawsuits challenging the administration's practices have skyrocketed, according to the biodiversity center, which specializes in endangered-species issues. There have been 369 listing-related suits against Bush, compared with 184 against Clinton. "The Bush administration has effectively killed the listing program," said Suckling, whose group's petitions and suits have driven 92 percent of the listings under Bush.
The Justice Department would not release figures on how the government has fared defending endangered species suits or how much it has cost taxpayers. Officials acknowledge they have not done well in the courts: Hall said he is frustrated that judges demand a higher burden of scientific proof to deny a listing or to take a species off the list than to list a species.
Since 2001, Jay Tutchton, general counsel for WildEarth Guardians, has filed 25 suits seeking listings and critical habitat designations for 45 species for several clients. He has won every time.
************************************************************Press Release
DATE: 3/24/2008
WildEarth Guardians Seeks Federal Protection for 681 Western Species
Endangered species inaction a violation of ESA
Santa Fe, NM—On March 19, WildEarth Guardians filed suit in Washington, DC against the U.S. Fish and Wildlife Service (Service) seeking protection of 681 plant and animal species under the Endangered Species Act. The suit challenges the Service's failure to issue findings on two petitions filed by WildEarth Guardians last summer which requested protection of 681 critically imperiled species across twelve western states.
Yesterday, the Washington Post reported WildEarth Guardians' lawsuit and the broader problem of the Bush administration's low rate of listing endangered species. The Post story describes how the Bush administration has dismissed scientific advice and reversed long-standing policies in order to avoid protecting imperiled species.
"Tragically, 80% of the endangered species in the U.S. are not protected under the Endangered Species Act," stated Dr. Nicole Rosmarino of WildEarth Guardians. "Under the Bush administration, one of the biggest threats facing species on the brink of extinction in the U.S. is the very agency that is supposed to be protecting them — the Fish and Wildlife Service," continued Rosmarino.
WildEarth Guardians' petitions cite the current human-caused extinction crisis, with 6,000-9,000 species estimated at risk of extinction in the U.S., as a rationale for federal protection of all critically imperiled and imperiled species across the twelve western states in the Service's Southwestern and Mountain-Prairie Regions. Nationwide, only 1,351 U.S. species are federally protected (listed under the Endangered Species Act).
Many of the species for which WildEarth Guardians filed suit face added risks from the climate crisis. Climate change scenarios in the western U.S. include extended droughts, erratic precipitation and thus altered stream flows, reduced snow pack, warmer temperatures, and other effects including species range shifts. Rare species — such as the 681 species WildEarth Guardians filed suit over last week — may be at particular risk.
The Endangered Species Act is one of the most powerful conservation protection statutes in the world. The Service acknowledges that over 99% of the species protected under this law have been spared extinction. Native wildlife and plants possess a range of values for humans, including economic, aesthetic, and ecological, alongside their own inherent value. At least 85% of the American public supports the Endangered Species Act, many of whom do so out of a moral duty to preserve nature for future generations.
"The Endangered Species Act can help address the extinction crisis in the U.S., but plants and animals do not enjoy any of its protections until they are listed under the Act," stated attorney Jay Tutchton, General Counsel for WildEarth Guardians and University of Denver Environmental Law Clinic Director. "We are pressing for protection of some of the most critically imperiled plants and animals so that they do not disappear forever," continued Tutchton.
No U.S. wildlife or plant species have been listed in the nearly two years in which Dirk Kempthorne has been Interior Secretary Dirk Kempthorne. The Post reports that 231 species were listed under George H.W. Bush in his one term, 521 species were listed under Bill Clinton in his two terms, but only 59 have been listed under George W. Bush.
"Under Bush, the door to our nation's Ark — the Endangered Species Act — has been locked, despite a long line of refugees desperately waiting to board. It's time to kick the door back open and give species in need the protection they deserve," stated Dr. Nicole Rosmarino of WildEarth Guardians.
The 681 species petitioned by WildEarth Guardians were selected from a source that the Service regards as "authoritative" — NatureServe. The petitioned species are either critically imperiled (ranked G1) or verging between critically imperiled and imperiled (ranked G1G2). There are over 800 species ranked G1 or G1G2 across the Service's Southwest and Mountain-Prairie Regions. More than 80% of these are not listed or candidates for listing under the Endangered Species Act.
In the past, WildEarth Guardians has submitted lengthy petitions to obtain federal listing for single species. But the Bush administration's refusal to list species sparked a new strategy: to petition for species recognized as imperiled by a source the Service regards as authoritative. WildEarth Guardians continues to file single-species petitions and filed suit on March 13 in Washington, DC over the Service's failure to grant WildEarth Guardians' petition to list the black-tailed prairie dog.
According to Rosmarino, "We need to elevate the pace on obtaining federal protection for our nation's wildlife and plants. Too many species are slipping through the cracks as the extinction crisis escalates. It is time for something completely different."
The 681 species for which WildEarth Guardians is seeking protection represent the diverse tapestry of life within twelve western states and include vanishing fishes, beetles, butterflies, moths, caddisflies, mayflies, grasshoppers, snails, scorpions, spiders, salamanders, prickly pears, oaks, grasses, mosses, cacti, daisies, buckwheats, and yuccas.
Contact:
Dr. Nicole Rosmarino, Wildlife Program Director,
WildEarth Guardians:
Jay Tutchton, University of Denver Environmental Law
Clinic Director and WildEarth Guardians' General Counsel:
As of January 28, 2008 Forest Guardians, Sinapu, and the Sagebrush Sea Campaign have joined forces to become WildEarth Guardians. With offices in Boulder, Denver, Phoenix, and Santa Fe, WildEarth Guardians protects and restores wildlife, wild places, and wild rivers in the American West