Cuckoo bills & the ESA

From ANIMAL PEOPLE, June 1998:

TUCSON––They used to call it The
Tombstone Territory.
Now it’s potential critical habitat for
yellow-billed cuckoos, who could become the
next target of ideological gunslingers hellbent
on blowing away the Endangered Species Act.
Interior Secretary Bruce Babbit on
May 5 announced that 29 recovered species
including the bald eagle, Columbia whitetailed
deer, grey wolf, and peregrine falcon will be
delisted over the next two years––just in time,
cynics noted, for the next U.S. Presidential
election, when Babbitt if he survives present
poltical controversies might like to be making a
run for the White House.

Only 16 species have ever been
delisted in the 25 years that the present ESA has
been in effect. Seven, meanwhile, have gone
extinct. Currently protected are 466 animals
and 669 plants. A backlog of 243 candidate
species awaiting status determinations as of
April 1995, when Congress imposed a moratorium
on new listings, has been pared to about
100––but meanwhile there is the yellow-billed
cuckoo, whose name alone lends itself to sarcastic
sound bites in “yellow” reporting about
the cost of protecting rare creatures, and the
alleged cuckooness of letting an obscure South
American migrant inhibit development––or
grazing, logging, hunting, fishing, mining,
water rights, perhaps even offroad vehicle use.
Occasionally seen in three western
states, gone from four others, the yellow-billed
cuckoo hasn’t yet kept anyone from doing anything.
But as the 105th Congress moves toward
summer adjournment, there seems little likelihood
of proposed ESA rewrites clearing committee,
or of being rushed into law on the eve
of a midterm Congressional election.
“I wouldn’t declare an ESA rewrite
dead yet,” Heather Weiner of the Earthjustice
Legal Defense Fund told Associated Press on
May 18, “but it’s in a coma.”
Thus in absence of either expedited
listing and enforcement procedures, or dismantling
the law, the yellow-billed cuckoo gets
a chance to join the Tennessee snail darter, willow
flycatcher, Stevens kangaroo rat, and
dozens of other rarely recognized creatures who
nonetheless symbolize public frustration. Their
name is Legion––and code for Lawsuit City.
The reason, simply put, is that the
underfunded and poorly politically supported
ESA listing apparatus doesn’t work until obliged
to work by lawsuit. It rarely has worked otherwise
(the snail darter case arose 21 years ago)
but the use of lawsuits to expedite listings has
accelerated throughout the 1990s, as ESA
rewrite after rewrite has failed in Congress.
The failures themselves demonstrate
the schism between a public who when polled
repeatedly opt overwhelmingly for strong
endangered species protection, and are even
willing to pay higher taxes for it–– up to $48.70
per person on average to save 62 jeopardized
species in the U.S. Southwest, according to a
recent national survey conducted by economists
John Loomis of Colorado State University and
Earl Ekstrand of the U.S. Bureau of

Reclamation––but tbey don’t wish to cede any
property rights.
Exemplifying the split, the states
spending the most money for endangered
species protection are Washington, $1.5 million,
and Wyoming, $1.3 million, according
to the International Association of Fish and
Wildlife Agencies––each a state with a strong
“green” contingent, and each hosting militant
anti-ESA “wise use” movements, too.
Even after lawsuits force the extension
of ESA protection to a species, obtaining
a critical habitat designation and other meaningful
enforcement typically requires further
lawsuits. And each and every ESA action is
met by an equal and opposite litigious reaction
from people whose projects are delayed, prevented,
or just made more expensive.
The case of the yellow-billed cuckoo
will likely take the familiar trajectory. The
Southwest Center for Biological Diversity on
May 15 filed a 60-day notice of intent to sue
Interior Secretary Bruce Babbitt and the U.S.
Fish and Wildlife Service, for failing to
respond to a February 9 petition asking that the
cuckoo receive ESA protection. The respondents
will take no action, having already
declared that they lack the budget to undertake
a species status determination within the next
year. Only after the Southwest Center wins at
least one suit––and probably several follow-up
injunctions––will the files on the yellow-billed
cuckoo move to the top of the heap.
The Southwest Center scarcely
invented the ESA legal dance, but having now
filed 37 lawsuits seeking protection for 78
species, it knows the steps.
On May 8, for instance, the Southwest
Center won an order from San Diego U.S.
District Judge Judith Keep that by September
the Interior Department and USFWS must
issue status determinations for 43 California
native plants and the black legless lizard.
Some USFWS staff secretly cheered,
as the verdict meant a go-ahead to do their
jobs. “It throws out the Clinton administration’s
excuses for not listing species,” said
Southwest Center spokesperson David Hogan.
Shootout at the O.K. corral
Earlier, effective at the end of 1997,
the Southwest Center and numerous coplaintiffs
forced Babbitt to rescind the “no surprises”
policy his regime had exercised since
1994, under which landowners were assured
that if they obeyed voluntary species protection
agreements, they would not be held to
more stringent regulation in the future.
The problem with that approach, a
team of 119 scientists told a conference at the
National Center for Ecological Analysis and
Synthesis at the University of California in
Santa Barbara last December, is that many
agreements were based on incomplete data.
Funded by the National Science
Foundation and the American Institute for
Biological Sciences, the team examined 206
plans total, studying 44 in depth. More than
half, they found, poorly calculated the impact
of activities harmful to wildlife on species survival.
Many of the plans proposed mitigation
strategies of known weakness, such as relocating
Utah prairie dogs, whose survival rate at
new locations is under 3% over 90 days.
But of all the Southwest Center ESA
cases, the one best exemplifying the state of
the law and status of endangered species may
have been a year-long courtroom mudwrestling
match against the Amphitheatre
School District of northern Tucson. Against
bitter parental opposition, the Southwest
Center held up construction of a new high
school. in an attempt, overruled on May 8 by
U.S. District Judge Frank Zapata, to protect
potential habitat for the endangered cactus ferruginous
pygmy owl.
In April the school district hired veteran
public relations consultant Cynthia
Heileman to tout their case. She quit in less
than a day. “I feel that the Southwest Center is
a little bit more militant than I’d personally
like to take on,” Heileman told Tony Davis of
The Arizona Daily Star. “I feel very sorry for
anyone who has to deal with them.”
Responded Southwest Center assistant
director Steven Scott, sounding a bit like
Wyatt Earp, “All we’re doing is trying to
enforce the law.”
In Tombstone Territory, that often
takes a posse.