The Endangered Species Recovery Act:

A Small Step Toward Conservation of Biodiversity

by Marty Bergoffen, Klamath Siskiyou Wildlands Center

On July 28, Rep George Miller (D-CA) and 52 cosponsors introduced the Endangered Species Recovery Act (ESRA). The intent of the act is to close many of the loopholes in the current Endangered Species Act (ESA), as well provide for increased protection for imperiled species worldwide. While the ESRA improves on the ESA in many ways, it is only the first step in a long voyage towards full protection for biodiversity.

Endangered Species Act: Past and Present

Currently, the ESA provides for listing of species that are either endangered (facing a high probability of extinction) or threatened (reaching endangered status in the foreseeable future). It also provides listing for candidate species (those being considered for listing as endangered or threatened). The Fish and Wildlife Service (FWS), however, often refuses to list species unless litigation is initiated. FWS often delegates such species to the ESA black hole of "warranted but precluded," which means that the FWS thinks it should be listed but doesn't have the resources to conserve it. Many species languish on this list for decades.

When a species is listed, FWS is also required to designate critical habitat; unfortunately, again, FWS rarely designates such habitat without litigation, instead relying on ESA loopholes through which critical habitat can be deemed "indeterminable" or "imprudent,".

A listed species is also supposed to be provided with a recovery plan. This is in response to the essential purpose of the ESA, to protect species and enhance their viability to the point that listing is no longer necessary. However, recovery plans are rare (only 61 percent of listed species had at least a draft plan in 1992), and even when they exist, recovery plans are weak or unenforced due to lack of funding. The northern spotted owl plan, for example, sets the recovered population lower than the population when it was listed. For the most part, "recovery" has been replaced by "survival" as the standard for ESA decisions, resulting in a much higher likelihood of extinction.

Once a species is listed, "taking" a species is prohibited. Taking means killing, hunting, harassing or harming. The Supreme Court in Sweet Home v. Babbitt held that harm reasonably includes habitat destruction, because a species without habitat cannot survive. However, permits may be provided for private parties, if they complete a Habitat Conservation Plan (HCP). HCPs are supposed to provide for development with minimal habitat loss; the first HCP, on San Bruno Mountain in California, maintained 90 percent of the habitat of certain butterfly species. However, more recent HCPs protect as little as 8 percent of remaining habitat.

In addition to the blanket prohibition on takings applicable to everyone, federal agencies are required to consult with the FWS (or National Marine Fisheries Service if it is an anadramous fish species) if actions they take may affect listed species. If a federal action is likely to jeopardize the continued survival or recovery of a listed species, it must be canceled or modified. Unfortunately, the FWS rarely finds jeopardy, preferring to let sister agencies go on with destructive practices. Furthermore, jeopardy findings are often skewed.

Even if jeopardy is found, the federal government may convene a "god-squad," made up of cabinet-level officials who can exempt a project from the jeopardy prohibition despite impending extinction for the species. This process is also subject to abuse. In the 1991, Secretary of the Interior Manuel Lujan stacked the deck against the northern spotted owl. Dozens of timber sales offered by the Bureau of Land Management (BLM) were threatening to wipe out the owl in the Oregon coast range. Instead of stopping the sales, Lujan applied for an ESA exemption, then refused to allow FWS (or the Administrative Law Judge hearing the case) to have their own attorneys, forcing them to use the same counsel as the BLM. This, of course, resulted in a terribly biased hearing, and the subsequent exemption was rejected in federal court.

One of the ESA's strongest provisions allows for citizen suits. Anyone can sue the Secretary of Interior to uphold the ESA provisions, and anyone can sue to prohibit take of listed species. However, a 60-day notice of intent to sue must be issued to the offending party, in theory allowing them to halt the take situation. This, too is subject to abuse. Who remembers the Forest Service cutting old-growth trees on Mt. Graham, after a 60-day notice had been issued, but before the right to seek an injunction had arisen?

ESRA: Closing the Loopholes

The ESRA attempts to close some of these loopholes by clarifying definitions; setting deadlines for listings, recovery plans and habitat protection; changing the consultation regime and HCP process and establishing a fund for private-property owners. In addition, the ESRA increases the budget to for endangered species protection while also offering tax breaks for landowners who agree to protect listed species. Perhaps most importantly to activists, the ESRA establishes an emergency exception to the requirement for 60-day notice prior to filing a citizen suit. It also provides for natural resource damages, which means that if Weyerhaeuser destroys habitat in violation of a take permit, it will have to pay for the value of the lost habitat and the listed species living there.

With regards to listings, the ESRA requires FWS to determine the status, either listed or not warranted for listing, of all currently "warranted but precluded" species within one year of passage; future "warranted but precluded" species must be decided within four years.

When a species is listed, the ESRA stipulates that FWS will designate "interim habitat," the habitat required for survival of the species, with preference for habitat that is currently occupied. This will certainly provide more up-front habitat protection, especially since interim habitat must be designated only based on the best science available, with no regard for economic factors. "Critical habitat" will then be designated, with the same factors considered in the recovery plan, utilizing the considerations (such as economics) presently found in the ESA.

As the name suggests, recovery is the central pillar of the ESRA. The recovery plan process is greatly strengthened and required for all species; in the past, FWS could avoid recovery planning by ruling that a plan wasn't necessary. This loophole has been badly abused. Under the ESRA, a draft recovery plan must be released within 18 months. The FSW must complete a final plan including implementation within 30 months of listing. Recovery plans under the ESRA must include specific population and habitat objectives; site-specific management requirements; the time and cost to reach interim and final objectives; and a list of actions that would violate the take or jeopardy prohibitions. In addition, recovery criteria would be determined by a team of independent scientists with no economic conflict of interest in the recovery plan or habitat covered. Finally, all federal, state and local governments that own or manage land within the range of the species must adopt a "recovery implementation plan" in order to comply with the ESRA, which will require definite actions by all levels of government in the recovery of listed species. Consultation with federal agencies under the ESRA is also changed, first by allowing consultation for candidate species. However, if a candidate is then listed, new consultation is not required unless new information is available or the project is changed. This tends to support the status quo of destruction, and reduce the impact a listing has on limiting harmful practices. As such, this is a step backward for ESA protection.

On the other hand, consultation is bolstered in the ESRA. First, FWS must now specifically include actual numbers of allowed take in its biological opinion, including numbers of allowed take in its biological opinion, including individuals and acres of habitat. Further, abuse of the informal consultation process is reduced through public release of all consultation documents prepared for or by the FWS.

For private landowners, the HCP process is also facelifted. First, a two-tier process is established. Low-impact HCPs that encompass less than 5 acres and last less than five years will receive easier approval, as well as having the FWS pay for any changes received after the permit is approved. High impact HCP applicants, on the other hand, must now deposit a surety in case they violate the terms of the permit and face revocation of their permit if they violate it. Most significantly, HCPs must now be "consistent with" recovery, not mere survival as recently interpreted by agencies/courts. This higher standard is an improvement, but will still result in an overemphasis on federal lands for recovery projects, to the detriment of species which are found only on private lands. Instead, HCPs should "contribute to" recovery; a positive standard rather than a neutral one.

ESRA: Fixes the Loopholes, But Not the People in Charge

While the current ESA has strong words in some places, it is not enforced due to a lack of fortitude on the part of the FWS, as well as the extraction-driven policies of the Forest Service, Bureau of Land Management and large corporations. In order to overcome this and provide for true protection of biodiversity, the ESA's loopholes must certainly be closed. The ESRA goes a long way in this respect, although there are still problems. What's more important, though, is to change the attitudes of agency decision makers. Agency heads must comprehends the magnitude of the current, human-caused extinction spasm and be willing to make substantial changes in policy with regard to ecosystem protection, public lands and commodity production. We must all do our best to raise the awareness of our elected officials, federal and state agencies, and the public at large if our unique ecosystems and imperiled species are to be preserved.

What You Can Do:

Write to your Representative, and encourage him/her to cosponsor the ESRA, HR 2351. US House of Representatives, Washington, DC 20515. Write to your Senators and urge them to introduce the ESRA into the Senate. US Senate, Washington, DC 20510. Write to Secretary Bruce Babbitt, and the FWS, and urge them to do their best to see that the ESRA is passed: Sec. Babbitt or Fish and Wildlife Service, US Department of Interior, Washington, DC 20240. Write to your local Fish and Wildlife Service office or state Department of Fish and Wildlife, about your concerns with biodiversity preservation and the ESA.

Marty Bergoffen is an attorney with the Klamath Siskiyou Wildlands Center.