A Law in Need of Revamping From Our Readers

By Dale Hall

By H. DALE HALL

SPECIAL TO THE REVIEW-JOURNAL

Over the 35-year life of the Endangered Species Act, it has emerged as one of the most powerful and contentious laws in the United States. And yet the positive aspects of the ESA should not be dismissed as insignificant. Through the ESA, the Peregrine falcon, grizzly bear, bald eagle and American alligator have been recovered. Countless species, including most recently the polar bear, have received the necessary protections under the ESA to help prevent their extinction.

Due to lack of reauthorization, however, the ESA has been in a state of crisis for the past two decades and through three presidential administrations.

By law, Congress must reauthorize the ESA every five years. The last time that occurred was 1988, so technically the law expired in 1993. Since that time, the ESA has been funded annually, but only for one year at a time. Direction on legislative intent and guidance on implementation of laws should come from Congress. In the absence of such guidance, our directives have come from various courts that have not interpreted the law in the same way. The absence of significant congressional involvement has led to a “shotgun wedding” between the executive and judicial branches of government.

Dating back to the controversy over the northern spotted owl in the first Bush administration, lawyers and judges rather than professional biologists have been setting the conservation priorities and driving listing actions for the Fish and Wildlife Service. Early court challenges dealt with a backlog of “candidate” species, ones which the Fish and Wildlife Service believed deserved additional observation and consideration for listing under the ESA. The most well-known of these cases resulted in a settlement requiring the Fish and Wildlife Service to make final decisions on more than 400 species in three years. I know this because I was working in the Fish and Wildlife Service’s Northwest Regional Office when more than 300 of those species were assigned to us. In addition, the California and Hawaii candidate plant settlements required us to make final decisions on 100 species.

After these listing settlements, the Fish and Wildlife Service was then sued for failure to designate critical habitat for listed species, a requirement of the ESA. The Fish and Wildlife Service contends this is a relatively low priority compared with listing actions that provide actual protection of the species. The onslaught of these lawsuits drove the priorities for the Fish and Wildlife Service through the 1990s, and was only interrupted in 1995, during the Clinton administration, by a congressional moratorium on listing of any species that year. By the end of the 1990s, all listing actions were essentially placed on hold so our biologists could devote their time to addressing the critical habitat lawsuits. More than 100 lawsuits seeking critical habitat have been brought against the Fish and Wildlife Service since 2001.

In spite of these challenges, we have made significant progress. More than 80 percent of all listed species now have recovery plans to guide their management and recovery. This year, we negotiated with Congress to move $3 million into the listing account from other areas. We have addressed the critical habitat cases to the point where we are now actively pursuing species on the candidate list. This fiscal year, we will decide whether 71 species are truly in need of protection. Those decisions will be finalized in fiscal year 2009, along with another batch of species for review in that year.

The ESA is a good and powerful law that has proved its worth over the past 35 years. However, the lack of clear guidance and definition of important terms from Congress has allowed mischief to occur. The ESA needs to be reauthorized with whatever guidance the Congress and president deem appropriate. The Fish and Wildlife Service should revamp the existing regulations (last overhauled in 1986) to reflect the experience our professionals have gained over the past 22 years. Finally, the Fish and Wildlife Service needs funding to address species needs before they become threatened, as well as to list and recover those species already on the list.

In 2007, a bipartisan group of six senators asked for assistance from a group of knowledgeable people on the ESA from a cross- section of interests. They agreed, at least in principle, that if new approaches could be identified that would both improve the effectiveness of habitat conservation efforts for species and reduce the burden upon landowners and other regulated interests, those new approaches should be embraced. I agree.

It’s time to reauthorize the law and revamp the regulations. Let’s reunite the legislative and executive branches of government to better serve the American people and the natural resources that belong to all of us.

H. Dale Hall is director of the U.S. Fish and Wildlife Service.

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