August 8, 2011

Should recovered species remain on the Endangered Species Act list?

By Should recovered species remain on the Endangered Species Act list?

Author: Brandon Middleton

At the Natural Resources Defense Council's Switchboard blog, Louisa Willcox discusses litigation concerning the Yellowstone grizzly bear population.  The United States Fish and Wildlife Service determined in 2007 that the Yellowstone grizzly bear is a recovered population that no longer meets the Endangered Species Act's definition of threatened or endangered.  But a federal district court invalidated that determination in 2009, and the Yellowstone grizzly bear litigation is now on appeal in the Ninth Circuit.

The point of Ms. Willcox's post is to take on the Service and, specifically, the federal attorney who represents the Service at the Ninth Circuit:

On the issue of regulatory mechanisms, the federal government's attorney said to the 9th Circuit panel: "the requirement of judicially enforceable standards and regulations before endangered species may be delisted is to set an impossibly hard standard that will never likely be met.  And because success in the Endangered Species Act is measured by removals, this would assure that the Act would be deemed a failure."

What?  Did I hear that right?  I went back and listened to the audio recording several more times before I’d been satisfied that the quote was correct.

One does not have to be an expert on the ESA to know that the purpose of the Act is not removals of species from the endangered species list per se, but recovery of imperiled species. . . .

The fact that the Fish and Wildlife Service (FWS) places such great emphasis on removals, rather than continued survival or growth of protected populations, is testimony to a decade’s long political siege against the agency by development interests that seek to exploit habitat used by imperiled species.

Ms. Wilcox's critique is quite unfair.  She apparently missed the beginning of the federal attorney's oral argument, when he said:

The Endangered Species Act federally protects threatened and endangered species, but the goal of the Act is to recover those species to the point where the Act's protections are no longer necessary, and then to remove them from the list and to return the management back to the States.  So success in the Endangered Species Act context is measured by recoveries and removals.

Thus, in stark contrast to Ms. Willcox's suggestion, the federal attorney in this case forthrightly acknowledged the ESA's goal of recovery.

But let's take Ms. Willcox's disdain for removal of listed species and her post's headline ("ESA: a failure if species aren't delisted?") at face value.  She emphasizes recovery of species, but she fails to explain what happens when a species has recovered.  Should it not then be delisted?

Stated another way, if the goal of listing a species is to enable its recovery, but no species ever leave the list of endangered or threatened species, is the ESA a failure?  I would argue yes, by definition.

Of course, certain species have recovered and left the ESA list (although this does not mean that the ESA is a categorical success, for in many instances the role of the statute in the species' recovery is unclear, at best).  But my point here is to take issue with Ms. Willcox's logic and her divorcing of recovery and delisting.

Sure, the Service's job is to ensure the "continued survival and growth of protected populations," but when those populations have recovered, they should be recognized as such and delisted accordingly.  And let's not pretend that delisting is as important to the Service as Ms. Willcox says it is.  It would be nice if, once the Service's biologists recognized a species' recovery, the agency would soon thereafter delist the species and jettison harmful land use regulations.  But the Service, like many federal agencies, has a difficult time lessening its regulatory authority.  See, e.g., the valley eldeberry longhorn beetle.

(I also wonder about Ms. Willcox's harsh criticism for the Service and her claims that the agency's "understanding of its mission has been twisted and subverted after years of hardball political pressure" and that it has been  "captured by the development interests that it is charged with regulating."  After all, it was only a year ago that one of her colleagues noted that he "deeply respect[s] the integrity, hard work, and commitment of the men and women who serve as ecologists, biologists, and scientists for the federal government" and wrote that "these agency biologists and scientists truly try to follow the law and do the right thing for the environment.")

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