NO SURPRISES––ESA FIGHT RESUMES

From ANIMAL PEOPLE, July/August 1997:

WASHINGTON D.C.––With CITES over, the
endangered species spotlight shifts back to the ongoing battle
over reauthorizing the Endangered Species Act.
An indicative early round had a promising outcome
on May 7, when the House of Representatives killed a measure
to give flood control projects precedence over protecting endangered
species. Since most endangered species occupy wetlands
or water, this might have effectively dismantled the ESA. The
final vote count showed 172 Democrats, 54 Republicans, and
one independent among the 227 opposing votes, of 423 cast.
House wise-users next tried to amend the Disaster
Relief Bill with a rider to expand right-of-way claims in roadless
areas. That too was defeated.
The Bill Clinton/Albert Gore administration might
have helped tip the balance on April 22, announcing a $125-
million-a-year scheme to both protect fish and wildlife and promote
the timber industry in the Pacific Northwest. The timber
industry praised the deal, but 37 environmental groups
demanded changes. “There is a heavy reliance on logging to
fix problems that logging caused,” objected Rick Taylor of the
Columbia River Inter-Tribal Fish Commission.

The Washington plan is similar in principle to one
announced earlier to protect 172,000 acres of California gnatcatcher
habitat in San Diego County through land swaps, building
on similar deals in Orange County that protect 38,000 acres.
The 9th U.S. Court of Appeals ruled on May 21 that aspects of
the gnatcatcher plan must be reviewed, since the U.S. Fish and
Wildlife Service has not yet designated critical habitat for the
gnatcatcher and is obligated by the ESA to do so unless it can
demonstrate that such a designation would not help the species.
Still another negotiated habitat protection deal is
reportedly in the works among the USFWS, timber companies,
and Defenders of Wildlife, among other participants, as part of
a deal to reintroduce grizzly bears to the Selway Bitterroot and
Frank Church River of No Return Wilderness along the
Idaho/Montana border. Private and state cooperation with the
reintroduction may hinge on federal willingness to drop grizzlies
from ESA protection as a “threatened” species. The Fund
for Animals, Biodiversity Legal Foundation, Swan View
Coalition, and other coplaintiffs on May 12 claimed to have
safeguarded that process in settlement of a lawsuit against the
USFWS for allegedly issuing a grizzly bear recovery plan without
establishing “objective, measurable, habitat-based recovery
criteria.” The settlement forestalled a USFWS appeal of a
September 1995 U.S. District Court ruling for the plaintiffs.
The deals were publicized preliminary to the June 12
joint release by USFWS and NMFS of a Draft Candidate
Conservation Agreement which implements No Surprises:
Assuring Certainty For Private Landowners In Endangered
Species Act Habitat Conservation Planning, a federal policy
document issued in August 1994. According to a U.S. Public
Interest Research Group analysis, the Draft Candidate
Conservation Agreement emphasizes the use of voluntary contracts
with private landowners “to preclude listing species as
threatened or endangered, and extends the ‘no surprises’ rule to
include species not yet listed as threatened or endangered.”
The USFWS hopes to have at least 18 million acres
of wildlife habitat under contractual rather than statutory protection
by the end of this year. About 6.7 million acres are covered
by the 20 biggest contracts already in effect.
Objects US-PIRG, “Both No Surprises and the candidate
conservation agreement policy close the door to new information
when life is full of surprises, perpetuate plans and
agreements that do not contribute to the recovery of species,
and cut citizens out of decisions affecting wildlife, drinking
water, and other important public resources,” by attempting to
limit the use of lawsuits to mandate stricter conservation provisions
than involved parties might accept.
Ironically, the candidate conservation agreement policy
is also opposed by the wise-use Mountain States Legal
Foundation in a lawsuit on behalf of Utah off-road vehicle drivers.
The suit holds that federal, state, and local officials
wrongly barred motorized access to 570 acres of Coral Pink
Sand Dunes tiger beetle habitat, on grounds the beetle is not
yet under ESA protection. The move to protect the beetle was
intended to avert invoking the ESA.
[Public comments on No surprises, due July 28, may
be addressed to LaVerne Smith, Chief, Division of
Endangered Species, USFWS, 452 ARLSQ, Washington, DC
20240, and Nancy Chu, Chief, Endangered Species Division,
NMFS, Office of Protected Resources, 1315 East-West
Highway, Silver Spring, MD 20910.] The Senate Finance Committee in late June approved
an amendment to the pending federal budget reconciliation bill
which could markedly increase incentives for species conservation
on private land by exempting land kept under exclusive
conservation agreements from estate taxes. The proposal would
apply only to undeveloped property.
California developer and wine grape grower Angelo
Tsakopoulos, identified as a major Clinton/Gore campaign
fundraiser, kept pressure for concessions on the administration
with a mid-May lawsuit against the Environmental Protection
Agency and the Army Corps of Engineers. The agencies contend
that Tsakopoulos improperly authorized plowing on his
8,400-acre Borden Ranch that could jeopardize endangered
fairy shrimp. Neighbor John Sitilides told The Sacramento Bee
that a prior agreement already protected the shrimp.
PAYING FOR IT
No Surprises was among the early Clinton/Gore
efforts to avert so-called “national trainwrecks” when conservation
and economic interest collide, by moving toward conservation
incentives without resorting to cash compensation of
landowners. However, the administration is testing cash compensation,
too. On May 30, after delaying a shutdown of irrigation
pumps at Tracy, California, until after three times the
“allowable take” of endangered Delta smelt were killed as fry
tried to migrate toward the confluence of the Sacramento and
San Joaquin rivers, the Bureau of Reclamation sought to buy
water rights from Central Valley farmers, to avoid a similar
debacle involving endangered Klamath suckers and threatened
coho salmon. With a project budget of just $200,000, and millions
of dollars in field crops at risk, the offer wasn’t expected
to interest anyone whose crops hadn’t already failed.
More promising was an $80 million water cooler the
size of a 25-story building installed underwater above the
Shasta Dam, started up the same day by Interior Secretary
Bruce Babbitt. The cooler enables the dam to produce power
without raising the temperature of the Sacramento River.
“The power loss avoidance will pay for it in a few
years,” said Central Valley Contractors Association general
manager Jason Pelletier, representing the largest group of
Shasta Dam water users.
The Clinton/Gore administration currently seeks to
increase the USFWS candidate conservation, listing, recovery,
and consultation budget from $67.4 million in 1997 to $78.8
million, and to increase NMFS funding for implementing the
ESA, Marine Mammal Protection Act, Driftnet Act, and
Sustainable Fisheries Act from $32.4 million to $40.1 million.
In percentage terms, the proposed increases are huge––but in
practical terms, all USFWS endangered species-related science
and planning would still get less funding than the Shasta Dam
mitigation project alone.
The Shasta project was politically popular because it
created construction jobs and promised a payoff both in greater
water use and the recovery of economically valuable fish
stocks. Comparably ambitious work has been undertaken in
the past on behalf of species not fished or hunted, but such projects
as the reintroductions of California condors to southern
California and Arizona, blackfooted ferrets to the high plains,
and wolves to Yellowstone National Park probably couldn’t
win funding in the present political climate, not only because
of interest group opposition but also because of the size of the
investment relative to the prospect of cash return.
Blackfooted ferrets, twice believed extinct but rediscovered,
have been restored to wild habitat on federal land in
Wyoming, South Dakota, Montana, and Arizona. The
restorations have been successful enough, despite major failures
when the ferrets were beyond young adulthood, that the
USFWS served notice in April that henceforth ferret habitat
will remain open to multiple use, e.g. grazing and hunting.
Further ferrret restoration is imminent in northwestern
Colorado and eastern Utah, but like previous reintroductions
is opposed by developers and ranchers because maintaining
the ferrets requires protecting prairie dogs, their primary
prey. The presence of prairie dog towns can impede land
development––and even if not, home buyers typically regard
burrowing prairie dogs as a menace to lawns and gardens.
Ranchers have already extirpated prairie dogs from
about 95% of their former range, considering them competitors
for grass despite the recent scientific discovery that prairie dog
activity actually enhances the quality of hooved stock forage.
Meaning to send a message, the USFWS on June 26
announced fines for killing protected prairie dogs of $15,000,
against developer Lin Drake of Cedar City, Utah, and $2,500,
against rancher Shelby Frei, of Santa Clara, Utah.
Once a major prairie dog killer, the Animal Damage
Control division of the USDA has backed away from that program.
The ADC policy document on operations around endangered
species, however, identifies “a potential positive impact
for ferrets from the use of M-44s [springloaded poison bait
guns] and leghold traps for coyote control,” since “if coyotes
and other predators are controlled, there will be less chance of
their killing a ferret or prairie dog, although coyotes probably
would not kill enough prairie dogs to negatively affect blackfooted
ferret numbers.”
In other words, coyotes are no threat to the ferrets,
but the ADC will pretend they are and kill them anyway.
BOOBIES & FRIGATE BIRDS
Regardless of what the ESA requires, winning
enforcement involves turf battles, including within agencies
with enforcement responsibility. An out-of-sight-out-of-mind
attitude about such matters appeared in the Gila National Forest
of Arizona in early June, where Earth First! founder Dave
Foreman, now with the Wildlands Project, caught firefighters
hacking down more than 100 old growth snags inside the Gila
Wilderness––a portion of the forest not supposed to be logged.
Almost simultaneously, the USFWS caught county
workers at Frank G. Bonelli Regional Park in San Dimas,
California, razing at least 1.6 acres of California gnatcatcher
nesting habitat to create fire breaks and hiking trails.
Friends of Animals special investigator Carroll Cox
meanwhile documented the ADC destruction of endangered
Laysan albatrosses on Oahu, Hawaii. As of June 27, the ADC
Bird Air Strike Hazard abatement program had taken 399
Laysan albatross eggs over the past 10 years from nests near the
Kaneohe Marine Corps Air Station, Dillingham Airfield, and
the Pacific Missile Range––even as the U.S. Fish and Wildlife
Service tried to restore the Laysan albatross nesting colony on
Rabbit Island, just off Oahu.
Eggs purportedly removed from harm’s way are not
hatched to help the restoration. Instead, the ADC delivers
them to biologist Causey Wittow, who uses them in terminal
research, “thereby actually killing the albatross,” Cox told
ANIMAL PEOPLE, without the ADC reporting them as
lethal takes of an endangered species.
Ironically, Cox explained, “Albatrosses are probably
far less of a hazard to aircraft than any other bird that might be
out there, because they spend the overwhelming majority of
their time at sea, and only nest every couple of years. When
they do nest, they aren’t flying. They don’t fly high anyway.
They skim the waves. A plane would practically have to land
on the rocks to have any problem with them, but neither the
ADC nor the Marine Corps nor any of the other agencies that
are supposed to oversee the situation seem to understand that.”
Boobies and frigate birds in the same habitat, potentially
more menacing to aircraft, are mostly left alone, Cox
said: there is no research demand for their eggs.
The Clinton/Gore administration in March sidestepped
responsibility for resolving interagency conflicts in
wildlife-related policy with a directive exempting federal agencies
from having to comply with the 1918 Migratory Bird
Treaty Act and the four international treaties that it implements,
together protecting more than 800 bird species.
Formerly, the USFWS required other federal agencies
to get permits––which were routinely given––to do any
work that might involve killing protected birds. In early 1996,
however, a federal judge agreed with seven environmental
groups that scheduled spring logging in the Chatahoochee
National Forest could kill as many as 9,000 nesting songbirds,
and ordered the Forest Service to halt the cutting.
“The Forest Service had a nervous breakdown,”
Audubon Society migratory bird specialist Kathleen Rogers
told H. Josef Hebert of Associated Press.
The Justice Department on behalf of the Forest
Service in early May won a Federal Count of Appeals verdict in
Atlanta upholding the exemption of federal agencies from the
Migratory Bird Treaty Act, allowing the logging to proceed.
Two other appellate courts are reviewing similar cases, indicating
that the matter may go to the Supreme Court.
Concessions to sensitive user groups within the federal
bureaucracy also appeared in a protocol announced June 5,
governing ESA enforcement on the 95 million acres of tribal
lands held in federal trust. Tribal lands “are not federal public
lands,” the key wording acknowledged, “and are not subject to
federal public land laws.” Thus, the federal government “shall
give deference to tribal conservation and management plans for
tribal trust resources that [both] govern activities on Indian
lands and address the conservation needs of the listed species.”
HERE COMES THE JUDGE
“The statute clearly says to me, ‘When in doubt,
protect the species,’” U.S. District Judge Richard Bilby recently
pronounced, ruling that the USFWS violated the ESA in
rejecting a Southwest Center for Biological Diversity petition
for protection of the northern goshawk. The goshawk inhabits
old growth forests in central Arizona and southwestern New
Mexico. Bilby ordered the USFWS to re-examine the status of

the goshawk and respond appropriately by the end of summer.
“I get the gut feeling,” he added, “that we have one
series of rules when we deal with trees and another series of
rules when we deal with species who occupy trees that can be
cut down and made into lumber.”
Encouraged, the SCBD advised Interior Secretary
Bruce Babbitt that it intends to sue again, on behalf of another
95 species for whom listing decisions have been pending for
longer than the year the ESA allows for status determination.
The Bilby verdict came just days after the 9th U.S.
Circuit Court of Appeals in San Francisco responded to another
Southwest Center petition by halting 20 U.S. Forest Service
timber sales in Arizona and New Mexico, pending a lower
court ruling as to whether any sales should be cancelled to protect
the Mexican spotted owl and 150 other native species.
On June 20 the 9th Circuit Court of Appeals hit the
Forest Service again by granting the Alaska Center for the
Environment and coplaintiffs an injunction blocking construction
of a logging road north of Kenai lake, pending review of
the effects of timber sales on Kenai Peninsula brown bears.
In federal district courts, an Indiana judge rapped the
Forest Service for allowing logging in the Red River Gorge
Geologic Area, of Kentucky, without providing priority protection
to the endangered Indiana bat, and an Arizona judge
ruled in favor of the Tucson Herpetological Society, giving the
USFWS just 60 days to decide whether to protect the flat-tailed
horned lizard, native to the Sonoran desert. A similar verdict
in Texas brought the April endangered listing of the Barton
Springs salamander, delayed since 1994.
Ruling in favor of a Sierra Club petition to protect
Monterey pine savannah and coastal prairie grassland habitat, a
California federal judge held up construction of a golf course
and subdivision near Carmel, promoted by actor/environmentalist
Clint Eastwood. Acknowledging that the verdict didn’t
make his day, Eastwood took it in stride, with a pledge to amicably
resolve the issues.
But in Alaska, where Clint Eastwood characters are
more popular than his politics, a federal judge bucked the trend
by extending for 90 days a May 31 deadline for the USFWS to
make ESA listing decisions pertaining to the Queen Charlotte
goshawk and the Alexander Archipelago wolf.
“A Congressionally imposed moratorium on species
listings in effect from April 1995 until April 1996 prevented us
from making any final listings,” reminded USFWS staffer
Patricia Foulk. “With no money to work, we lost a year.”
Even before the moratorium, however, the listing
process was severely backlogged, in part by prioity conflicts.
Obtaining compliance––just on paper––with a 1994
federal judicial order to protect the already officially endangered
wildlife of the Florida Keys took three years, as the
USFWS and the Federal Emergency Management Agency on
June 17 announced that they will henceforth confer about
FEMA involvement in development plans on Big Pine Key.
Threatened by development are the Key deer, Key Largo wood
rat, Key Largo cotton mouse, Lower Keys marsh rabbit,
Schaus swallowtail butterfly, silver rice rat, Stock Island tree
snail, Keys tree cactus, and Garber’s spurge, another plant.
The agreement won little praise. Pro-development
attorney Jim Mattson said it would “make lawyers richer and
biologists filthy rich.”
The implementing rules, environmental attorney
Henry Lee Morgenstern told Nancy Klingener of the M i a m i
Herald, “are guaranteed to make everybody hate the government,
with endangered species the ultimate loser.”
Another fight of regional import and national resonance
was avoided in Colorado when construction of a $35 million
water pipeline to supply Colorado Springs was allowed to
proceed on June 7, after a four-day shutdown to investigate the
possible presence of endangered Preble’s meadow jumping
mice along part of the route.
But the deferential approach landed NMFS in yet
another lawsuit in late April, when NMFS listed California and
southern Oregon coho salmon as “threatened,” but exempted
central and northern Oregon runs to see whether a largely voluntary
restoration plan brokered with timber companies by
Governor John Kitzhaber will work.
“We feel the Clinton administration has turned a
blind eye to their legal responsibilities in order to benefit the
timber interests that got us into this mess,” explained Oregon
Natural Resource Council conservation director Ken Rait.
AFFAIRS OF STATE
Pressure to relax endangered species protection is
especially evident at the state level, where regional economic
interests have proportionally more clout. In Hawaii, for
instance, the legislature has passed a bill incorporating the
major aspects of No Surprises––and stripping citizens of the
right to sue landowners on behalf of endangered species. At
deadline it required only Governor Benjamin Cayetano’s signature
to become law.
Wise-users are expected to build opposition to the
Michigan Environmental Protection Act around a $1.3 million
fine levied by circuit judge James Giddings on May 30 against
Richard and Nancy Delene, of Baraga County, for allegedly
draining wetlands beside the Sturgeon River into several ponds
which they contend are superior habitat. Michigan environmental
quality director
Russell Harding has
ordered Richard Delene,
a contractor, to restore
the wetlands.
In Connecticut, a hot button might be conflict
between state protection of birds and a state Department of
Transportation plan to build an aircraft de-icing facility at the
state’s only major airport. The proposed site is within designated
critical habitat for upland sandpipers, horned larks, and
three species of sparrow. None of the small birds are known to
cause plane crashes, as have flocks of starlings, gulls, and
Canada geese, but the emotional clutch of “birds v e r s u s a i r
safety” could easily be exploited.
In Idaho, the state Game and Fish Department has
reportedly proposed to raise funds without either raising hunting
and fishing license fees or dipping into tax revenue by selling
a million board feet of timber along the south fork of the
Salmon River––perhaps intentionally starting conflict with the
state Division of Environmental Quality at a time when user
groups have the upper hand, and daring federal agencies to do
something about it while Representative Helen Cheney (RIdaho)
sits on the House Natural Resources Committee, overseeing
their appropriations.
In Utah, some state legislators are leading an
attempted revolt against paying the state share of costs for
endangered species recovery, estimated at anywhere from
$31.4 million to $69.8 million over the next decade. Utah has
no set mechanism for funding endangered species programs.
Each new project requires a separate allocation from the
increasingly fractious legislature, which in 1996 defeated a
proposal to raise the money through a five-cent-per-thousandgallon
water tax. The legislature instead imposed a tax on the
collection of brine shrimp that raises less than 10% of the funding
actually needed. Federal Bureau of Reclamation projects to
supply Utah with water are the major threat to endangered
species within Utah, exemplified by controversy over spring
water releases from two reservoirs to serve about one million
human users. The releases purportedly jeopardize the survival
of the endangered June sucker. The taxation proposal would
have cost the typical homeowner less than $10 per year.
The Florida Panther Technical Advisory Committee
complained on May 20 that state wildlife officials there are
footdragging instead of completing a study on how to handle
human fears pertaining to panther reintroduction. Indeed, the
Florida Game and Fresh Water Fish Commission may have
already figured out that the surest way to avoid a backlash is to
not release panthers. Said Commission endangered species
coordinator Tom Logan, “You reach a point where you begin
to question whether the public support is there to proceed.”
The California Assembly in late May voted 52-10 to
ask Congress to remove the Delhi Sands flower-loving fly from
the federal endangered species list, after relocating the site of a
new hospital to avoid the fly’s last known habitat reportedly
cost San Bernardino County $3.3 million. According to Sandra
Stokely of the Riverside Press-Enterprise, the fly also “stalled
development of the Agua Mansa Enterprise Zone, an industrial
area; may scuttle a Colton manufacturing project that could
bring in 250 to 300 badly needed jobs; and may cause developers
of a Fontana commercial project to default on $46 million
in bonds.” In June, however, the USFWS and other involved
parties reportedly resolved most of the conflicts.
Earlier, California governor Pete Wilson may have
realized he didn’t have the strength to win frontal attacks on the
state endangered species law, when on April 23 his administration
proposed to drop an unimplemented 1995 executive order
suspending state ESA enforcement during floods and other
state emergencies, and pay the legal costs of environmentalists
who sued to overturn the order––if they would join him in asking
the First District Court of Appeal to rescind a recent verdict
that invaldiated as many as 180 permits allowing developers
and government agencies to destroy endangered species habitat
on condition that they undertake habitat replacement.