Editor's Column

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Forest Facts

By: Dave Skinner

Evergreen writer Dave Skinner in a self-portrait amid the ruin on the Siskiyou National Forest following the 2002 Biscuit Fire, which destroyed 500,000 acres of timberland, including 119,000 acres of spotted owl habitat. According to the US Forest Service, wildfires have destroyed five times more late successional reserve on the Siskiyou in the last 20 years than was harvested in 50 years.

As most years, 1973 had its ups and downs. George Steinbrenner bought the New York Yankees, America launched Skylab, firstclass stamps cost eight cents, George Foreman was the heavyweight boxing champ, while Secretariat won the Triple Crown.

American troops withdrew from Viet Nam. Terry Meeuwsen of Wisconsin was crowned Miss America. Motor Trend’s Car of the Year was the Chevy Monte Carlo, and Roberta Flack’s “The First Time Ever I Saw Your Face” won the Grammy.

Computer scientist Vinton Cerf began developing the protocol later to be called TCP/IP, and Xerox’s Palo Alto Research Center (PARC) built a prototype of the world’s first personal computer, the Alto. It even had a mouse.

In reaction to Israel’s victory in the Yom Kippur War, OPEC imposed the Arab oil embargo, while on the same day, December 28, 1973, at the Western White House in San Clemente, Richard M. Nixon signed the Endangered Species Act.

In the 33 years since, much has changed. Secretariat and Richard Nixon are long gone. American soldiers fight a guerrilla war in baking desert instead of steamy jungle. George Foreman peddles hamburger fryers. Skylab rests (mostly) across several thousand square miles of the Indian Ocean and Australia, while thousands of Monte Carlos all across America have been scrapped and recycled—possibly into 2006’s Car of the Year, the Honda Civic.

Millions of Americans today use their personal computers (none made by Xerox) for correspondence, skipping the 39 cents for a stamp thanks to Cerf’s Internet-access programming. Roberta Flack still sings. Her latest: Recording the Mr. Rogers’ Neighborhood theme song for a Fred Rogers tribute album. Miss America? You can look it up.

What hasn’t changed? Steinbrenner still owns the Yankees, OPEC still controls most of the world’s oil reserves and the Endangered Species Act is still law.

Whatever The Cost

Upon passage, the Endangered Species Act (ESA) was hailed as the most powerful environmental law ever written by any nation, ever. It still is.

In a nutshell, under ESA, all federal agencies must conserve endangered and threatened species, and are prohibited from authorizing, funding, or carrying out any action (as stated in Section 7, subsection 2 of the ESA) “likely to jeopardize the continued existence of any endangered species or threatened species
or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical […]” Furthermore, under Section 9’s listing of prohibited acts, no entity or individual can “take any such species within the United States or the territorial sea of the United States.” The term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” In the words of the Supreme Court, the federal government’s highest calling is “to halt and reverse the trend toward species extinction, whatever the cost.”

Effective? Or not?

The ESA’s reordering of federal priorities has created iconic social and political conflicts across the nation, from Tellico Dam to the Florida Everglades to Yellowstone to the Klamath Basin and beyond. But the law and its “whatever the cost” mandate has, barring minor changes in 1978, 1982, and 1988, remained substantively unchanged for 32 years. Yet questions remain: Does the Endangered Species Act actually work? Is this “most powerful law” actually effective? It depends on who you ask.

There are any number of websites hosted by environmental organizations that claim the Endangered Species Act is 99 percent successful. After all, only a handful of the nearly 1300 species have been removed from the ESA rolls— “delisted”—due to extinction. Great. But the list of species delisted because
the Act has helped them recover is even shorter. Worse, it appears that the present law actually impedes its central purpose as spelled out in Section 3 of the ESA: “(3) The terms “conserve,” “conserving,” and “conservation” mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” Some may recall when, in May 1998, Interior Secretary Bruce Babbitt announced a “new policy, to emphasize delisting” in order to prove “the Endangered Species Act works. Period. In the near future many species will be flying, splashing and leaping off the list. They made it. They are graduating.”

Unfortunately, of the 29 species Secretary Babbitt enthused over, 19 were coming off the list either because of data or taxonomic errors, or extinction. Only four species (three plants and the Pahrump pupfish) were coming off due to ESA policy. Three bird species (brown pelicans, peregrine falcons and bald eagles) were proposed for delisting, not because of ESA, but at least in part due to restrictions on DDT implemented in the 1970s. Six years later, by the way, only the peregrine falcon is actually off the list.

As of January 5, 2006, 1,264 species were listed under the Act. At a ceremony handing wolf management to the state of Idaho that day, Interior Secretary Gale Norton pointed out: "The goal of the Endangered Species Act is to recover to the point where (endangered animals) no longer need the protections." Norton said, "It's the same as a hospital. The purpose of a hospital is not to keep people there."

Norton is not alone in comparing ESA's purpose to that of a hospital. As Wildlife Mississippi executive director James L. Cummins put it to Congress last year, if endangered species management were health care, "we would have put 1,264 people in the hospital, kept 989 in intensive care (endangered), 275 in the regular ward (threatened) and released ten (delisted)." What Cummins doesn't say is this "hospital" might actually be a Roach Motel-99 percent of species "patients" check in, but they don't check out. Never mind that this "hospital" has, in the face of giant technological leaps outside its walls, pretty much remained the same as built 32 years ago. Except for a couple coats of Senate paint, new Congressional carpet, perhaps new USFWS-logo sheets on the beds, and fixing the windows broken in escape attempts...it's just the same as it was in 1973, right down to the journals in the "doctor's" lounge and the manual typewriters used by overwhelmed admissions staff. What could be done to improve and update this place? Plenty. Evergreen decided to ask conservation experts their views and suggestions for improving and updating the Endangered Species Act. Their answers were wide ranging, but had one common theme:

Perhaps more than any other species, the bald eagle underscores what can happen when proactive management is undertaken. There were only 417 nesting pairs of eagles left in the lower 48 states in the 1960s. Today, thanks to a ban on DDT, and protection from hunters, there are 5,748 nesting pairs. But eagles are still on the ESA list, six years after delisting was proposed. Might a similarly proactive approach with spotted owls have netted a better result?

It's the Habitat, Stupid

Many species are on the Endangered Species list because they lack habitat, more specifically suitable, effective habitat. That much was obvious when ESA's authors wrote and Congress approved the "critical habitat" provisions of the Act. But 32 years of study shows that of millions and millions of acres of land in America that could be suitable, effective habitat, very little is actually being managed to make it so. Why? Read on.

Private Habitat Management

Critical habitat designation on public lands in the western part of the United States has been a matter of intense controversy, much covered in Evergreen. But consider Aldo Leopold's prescient 1934 warning: "Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest." After all, according to U.S. Department of Agriculture, while public forestlands total 317 million acres (42.38%), private forestlands comprise more: 431 million acres (57.62%), predominantly in the eastern United States. Furthermore, millions of acres of ranch and farmland nationwide provide habitat for wildlife.

In the report Delisting Endangered Species: Process Analysis and Idaho Case Studies, Mark McClure, Philip S. Cook and Jay O'Laughlin of the University of Idaho College of Natural Resources Policy Analysis Group write "designation of critical habitat has become a significant obstacle to obtaining landowner cooperation in recovery efforts for many species (USFWS 2003a). Although the ESA can compel agencies and landowners or managers not to harm listed species and not to cause significant adverse modification of their habitat when it injures members of the species, the Service cannot compel them to take the positive steps needed to recover species. Such actions must be done
voluntarily."

"Most listed species are found in whole or in part on nonfederal lands, and the Service has found that state and private landowners are generally strongly opposed to having their property designated as critical habitat. This is a classic example of good intentions failing the test of reality (USFWS 2003a)."

The reality is, as James Cummins writes, "we are doing a great job of preserving the status quo of the red cockaded woodpecker. Its optimum habitat is characterized by old-growth pine forests with little or no hardwood understory" thanks to frequent natural and set fires. But "because of liability and the desire of many to not create a habitat favorable for regulation, controlled burns are not used as much. This lack of management has resulted in no colonies of the woodpecker to be found on private land in Mississippi."

A tiny step in the right direction is legislation which Cummins worked closely with Senator Thad Cochran plus Congressmen Greg Walden and Scott McInnis to pass in the 108th Congress, the Healthy Forest Reserve Program (HFRP), part of the Healthy ForestnRestoration Act. HFRP authorizes acquisition of 99-year or 30-year easements (not to exceed 99 years), or use of ten-year cost-share agreements to promote the recovery of threatened and endangered species on up to two million acres of qualifying lands. Participating landowners also get "safe harbor" protections as a reward for providing a net conservation benefit. But the current $2.5 million appropriation doesn't go very far across millions of acres. Boone and Crockett Club chairman Bob Model owns and runs the spectacular Mooncrest Ranch east of Yellowstone Park in Wyoming. 

He has built a successful ranch and outfitting operation despite the presence of wolves and grizzly bears on his property. Not all is peaches and cream for Mr.Model: "When I have a problem, it's got to be solved. At the end of the day, all ranchers and farmers need some help. If it affects my ability to make a living, then I have an alternative, to sell. That's the reality and that's something people don't seem to focus on."

Another reality: When landowners like Model sell, they sell for residential subdivisions, which make rotten wolf and bear habitat. "If you have good habitat in a good partnership, you're going to provide habitat for lots of critters and lots of plants," Model points out. "There should be some kind of reward for doing the right thing, instead of punishment."

Balancing of Harms

Case law, beginning with the Supreme court's ruling in the TVA vs Hill, has firmly established that under the Endangered Species Act, there is no balancing of economic or social burdens when it comes to endangered or threatened species. The introductory language of ESA mentions extinction "as a consequence of economic growth and development un-tempered by adequate concern and conservation" but there is  no direct "tempering" language in the implementation sections at all.

In Dr. O'Laughlin's view, "the Endangered Species Act was written purposely so there is no balancing mechanism. The only economics in the act is the marginal economic analysis done during the designation of critical habitat as outlined in the 1978 Amendments. We don't do any other kind of business in our society without considering costs and benefits, so [the ESA] is really different in that respect."that of environmental risk, that ESA ignores. To wit, as former Forest Service Chief of Research Robert Buckman put it to Evergreen in 2004, "What is the risk of doing something versus the risk of doing nothing?"

 

"We must always consider the environment and people together, as though they are one, because the
human need to use natural resources is fundamental to our continued presence on earth."