Endangered Species Act held hostage
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Species protections are stalled nationwide as Secretary Babbitt plays
politics with the ESA. A lawsuit has been filed to list 44 California species
as endangered.
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by Allison Rolfe
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 he Southwest Center for Biological Diversity
and the California Native Plant Society filed suit in early February in
a San Diego federal court against Secretary of Interior Bruce Babbitt for
failing to list 44 imperiled California species under the Federal Endangered
Species Act (ESA). The 43 plants and 1 animal were previously proposed by
the U.S. Fish and Wildlife Service for listing under the ESA. By law, the
agency has 12 months from a proposal date to make a final decision on whether
the protect the species. Babbitt, however, has allowed deadlines to lapse,
while the species continue to decline toward extinction. |
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 "Babbitt is playing politics
instead of saving species," said David Hogan of the Southwest Center
for Biological Diversity, "since taking over the Fish and Wildlife
Service, Babbitt has essentially shut down the listing program, not just
in California, but everywhere." A recent report by Public Employees
for Environmental Responsibility (PEER), entitled "War of Attrition:
Sabotage of the Endangered Species Act by the U.S. Department of Interior,"
details how Babbitt has sought to prevent controversial species from being
protected under the Endangered Species Act by overruling Fish and Wildlife
Service biologists, ignoring mandatory deadlines, establishing policies
which contradict the ESA, cutting the agency's listing budget, and lobbying
Congress to restrict the agency's ability to obey court orders.
According to Hogan, "Babbitt's
systematic refusal to list endangered species leaves us with no alternative
but to go to court."
The 44 species occur in dozens of
imperiled ecosystems across the state a sign that California's natural heritage
is unraveling at the hands of urban sprawl, overgrazing, mining, water pumping,
and industrial scale agriculture. "These species have survived here
for tens of thousands of years," said Emily Robertson of the California
Native Plan Society, "that so many are going extinct now, is a signal
that our ecosystems are coming apart."
California's ecological and economic
well being are intimately linked. In 1991, the California Biodiversity Executive
Council, which includes the 17 largest state and federal resource and land
management agencies as well as counties throughout the state, signed a memorandum
of understanding stating: |
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"The state's rich natural heritage
provides the basis for California's economic strength and quality of life.
Sustaining the diversity and condition of natural ecosystems is a prerequisite
for maintaining the state's prosperity."
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According to Robertson, "wild
species, especially plants, are the source of thousands of modern medicines.
We may unwittingly drive the cure for cancer into extinction if we're not
careful." |
Playing politics with extinction
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Unfortunately, Babbitt's refusal
to act on the 44 California species is the rule, rather than the exception.
The PEER report details the systematic refusal of the Fish and Wildlife
Service to list species as endangered unless forced to do so by court order.
The report concludes: |
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"The Department of Interior
and its Fish & Wildlife Service have suspended enforcement of the Endangered
Species Act, systematically refusing to list new species despite the findings
of their own scientists. In effect, the Department of Interior is waging
a legal war of attrition against unprotected wildlife.
"Fearing a political
backlash from development interests, state governments and influential
Congressional delegations, Clinton Administration officials are blocking
new listing recommendations from their own scientists. Secretary Babbitt
has recently endorsed Endangered Species Act reauthorization legislation
authored by Senator Dirk Kempthorne (R-Idaho). Secretary Babbitt is blocking
new listings and prolonging resistance to listing litigation in order to
buy enough time to win legislative relief."
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The Kempthorne bill to amend the
ESA, which may soon be voted on by the U.S. Senate, throws up a series of
hurdles designed to make species listings all but impossible. It also allows
the Fish and Wildlife Service to substitute vague "conservation agreements"
for official protected status, even though the courts have repeatedly found
such agreement to be weak, speculative, unenforceable, and illegal.
Babbitt's self-imposed moratorium
on listing controversial species has led to an unprecedented number of lawsuits
against the Department of Interior, the vast majority of which are won.
Since 1993, the Southwest Center alone has won 23 lawsuits against the Secretary
of Interior, overturing his decisions to not list, or to delay listing of
imperiled species. |
Holding pens of extinction
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On September 19, 1997, the U.S. Fish
and Wildlife Service officially declared five species as extinct, removing
them from its "Candidate" list. Candi-date's are species which
the Service has determined warrant being proposed as endangered, but which
the Service has not yet officially proposed. The fact that five species
languished in this category for decades, and then became extinct without
ever getting on the endangered species list, is an indication of the dire
consequence of systematic listing delays.
One of the five species, the High
Rock Springs chub, was a small fish which lived only in three springs on
the California/Nevada border. Even after the chub disappeared from the two
springs in Nevada, the Secretary still refused to list it as endangered.
When a California businessman decided to rear predatory commercial fish
in the one remaining spring, the Fish and Wildlife Service took no steps
to stop him or list the chub as endangered. The predator fish, of course,
ate the last of the High Rock Spring chub, driving it into extinction.
Thirty-two of the 44 species in this
suit have languished on the Candidate list without protection, some of them
since 1980. [see sidebar] |
Abuse of the "warranted-but-precluded" list
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If the Fish & Wildlife Service
is not forced to make a listing decision by the courts or citizen petitions,
species can languish on the candidate list for decades or until they go
extinct. Unfortunately, when the Service is forced to make a decision, it
often simply shifts the species from the Candidate list to the "warranted-but-precluded"
list, another holding pen of extinction.
The Secretary is permitted to rule
that a species warrants listing as endangered, but to delay the listing,
because the Fish and Wildlife Service is "busy" listing other,
higher priority species. The species instead goes on the warranted-but-precluded
list. The Secretary is required to reassess this list every year to assure
the species are listed as quickly as possible. In practice, species rarely
leave the list except under court order.
Biologists at the Smithsonian Institute
formally petitioned the Fish and Wildlife Service to list 27 of the 44 species
in this suit as endangered in 1975. Final decisions on these species should
have been issued in 1977. The Secretary, however, illegally delayed the
ruling until 1984. At that point, he found them to be biologically endangered,
but dumped them on the warranted-but-precluded list. Fourteen years later,
they still await protection. Even worse, all 27 species were proposed for
listing between 1992 and 1995, but the Secretary has refused to issue a
final listing decision within one year as required by the ESA, forcing the
Southwest Center and the Native Plant Society to break the logjam through
a court order. {see sidebar] |
Double team to extinction
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The Candidate and warranted-but-precluded
lists are often used together to keep species off the endangered species
list. According to the PEER report, the lynx was made a Candidate species
in the 1970's. The Fish and Wildlife took no steps to list the lynx, however,
forcing the Biodiversity Legal Foundation to petition to list it as endangered
in 1994. Forced now to make a decision about the lynx's fate, the Washington,
D.C., office of the Fish and Wildlife Service overruled its own biologists,
issuing a decision that the lynx does not qualify for listing as an endangered
species. In 1996, a federal judge, citing "overwhelming consensus among
biologists that the lynx must be listed," overturned the agency's denial,
ordering them to issue a new finding. With no choice but find that the lynx
is endangered, the D.C. office in 1997 used the warranted-but-precluded
loophole to once again deny protection while admitting that protection is
needed. The agency has been hauled back into court, and the judge has indicated
that she will force the agency to list the lynx as endangered, but meanwhile,
it continues to decline toward extinction.
The bull trout is now extinct in
California and declining in eastern Oregon, Washington, Idaho, and Montana.
Despite its huge range loss and complete extinction in California, the Fish
and Wildlife Service allowed the species to continue declining on the Candidate
list with no action to protect or list it. When environmentalists won a
lawsuit forcing the agency to make a decision, it declared that the bull
trout is indeed biologically endangered, but is precluded from listing by
"higher priorities." It was dumped on the warranted-but-precluded
list. The agency was hauled back into court. This time, the judge determined
that by the Secretary incorrectly assigned the trout a low priority. By
the Fish & Wildlife Service's own quantitative priority listing system,
the bull trout could not be precluded from listing. He ordered the agency
to list it as endangered in 1997.
Nineteen of the 44 species in this
suit have languished on both the Candidate and Warranted-But-Precluded lists.
[see sidebar] |
Fraudulent priorities
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The Fish and Wildlife Service routinely
cites higher listing priorities and lack of funding to justify its consistent
inaction. Close inspection, however, reveals that the only priority is politics.
Babbitt's falsification of the priority
listing system on the bull trout has been discussed. Such fraud is routine.
On June 7, 1996, Jamie Rappaport Clark, now Director of the U.S. Fish and
Wildlife Service, attempted to convince a federal judge that the Fish & Wildlife
Service could not list the imperiled Preeble's jumping meadow mouse as endangered
because of "higher" priorities. She filed a sworn affidavit claiming
that action on the meadow mouse petition would: "impair the Service's
ability to extend legal protections to those species which face high magnitude
threats. Region 6 has identified two species which will receive the region's
immediate attention, the least chub and the Winkler cactus."
Nearly 18 months later, the Fish
& Wildlife Service has taken no action, not only on the meadow mouse,
but on the Winkler cactus and least chub as well. Incredibly, Fish &
Wildlife Service biologists admit that the cactus has continued to decline
since being proposed for listing in 1993, but can not explain why the agency
has taken no action on its supposed number one priority. On January 13,
1998, the Southwest Center filed suit force the Secretary to make a final
decision on the cactus. The Center has also filed official notice that it
will sue to force a final rule on the least chub.
In 1994, the Fish & Wildlife
Service determined that the Barton Springs salamander faced "imminent,
high magnitude threats" of extinction. It was made a "top priority
for listing." As with the 44 species in this suit, however, the Secretary
proposed the salamander as endangered, but took no further action. He was
sued by a Texas environmental group. The judge noted that the Secretary
"missed virtually every statutory deadline provided in the ESA,"
ordering him to stop delaying and to make a decision. Instead of listing
the salamander, the Secretary bowed to political pressure and withdrew his
proposal. He was sued again. In 1997, the court overturned the Secretary's
decision, ordering him to list the salamander as endangered. The judge concluded
that "strong political pressure was applied to the Secretary to withdraw
the proposed listing of the salamander" and that "that political
lobbyists for the development community worked with political appointees
of the Secretary" in violation of the ESA. |
Budget shortfalls are self-imposed
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The Fish & Wildlife Service routinely
argues in court, and to the media, that Congress has slashed its listing
budget, making it financially unable to meet the listing deadlines of the
ESA. It will surely repeat the argument in this case. The Fish & Wildlife
Service's monetary shortfall, however, is self-imposed by the Secretary
of Interior, not by Congress! According to data presented in the PEER report,
the Secretary Babbitt requested less money for listing endangered species
than the Bush administration did. Under Bush, the Interior Department requested
$10.175 million in 1992. Babbitt requested only $8.224 million in 1994,
and has consistently requested less money every year since then. In 1988,
he requested only $5.19 million. It appears Babbitt purposefully slashed
the listing budget, to give himself an excuse to present to the courts and
the media.
Fearing that the courts would order
Fish & Wildlife Service to use money from its other programs to meet
its ESA requirement, Babbitt lobbied the Republican Congress to pass a law,
forbidding transfer of funds to the listing program. The measure passed
the House, but not the Senate. Heavy lobbying pressure, however, succeeded
in placing the ban on the Interior Appropriations Bill via the House-Senate
Conference Committee. Babbitt's attempt to shut his own program down legislatively
shocked even the Republicans. The Conference Committee noted in its committee
report: "As requested by the Department of Interior, the managers [the
members designated to handle that particular portion of the bill] reluctantly
agreed to limit statutorily the funds for the endangered species listing
program." (PEER, p. 7) |
Congressional moratorium without congress
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In 1995, Congress placed a year long
moratorium on listing new species under the Endangered Species Act. To this
day, Fish & Wildlife tries to blame its continued refusal to list species
on the moratorium that ended several years ago. Even the Republicans aren't
buying it. Senator John Chafee (R-Rhode Island), Chairman of the Senate
Committee on Environment and Public Works, wrote to Babbitt on October 3,
1996 expressing "strong concern about what appear to be politically
motivated administrative delays in the listing of species under the Endangered
Species Act." He noted: |
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"While I recognize that listing
decisions can be controversial, the law dictates that listings must be
based on science, not politics. It is my understanding that few species
have been listed since the moratorium ended and that most, if not all,
of those listings were under court order."
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Listing biologist abandons agency
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On November 14, 1997, Ronald M. Nowak,
a zoologist in the Washington D.C. office of the U.S. Fish and Wildlife
Service, opted for early retirement. Mr. Nowak quit because the Fish and
Wildlife Service has lost its moral, biological and legal compass. The Service
has long had problems with political interference, under Babbitt, however,
the conservation of imperiled wildlife has taken an unprecedented back seat
to deal-making of every kind. Under his direction, the U.S. Fish and Wildlife
has been sued more times for refusing to list species as endangered than
any other Secretary of Interior.
Mr. Nowak lamented, "...this
agency is no longer adequately supporting the function for which I was hired,
the classification [i.e. listing] and protection of wildlife pursuant to
the Endangered Species Act of 1973, and indeed, often is working against
this function. I have become particularly concerned about the agency's seemingly
unrestrained use of public funds to carry on litigation and other actions
to thwart or delay appropriate classification and regulation of species
such as the lynx." His retirement letter follows: |
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To: Chief, Office of Scientific Authority, U.S. Fish &
Wildlife Service
From: Ronald M. Nowak, Zoologist, OSA, FWS
Subject: Retirement
I have today submitted to
the Division of Personnel Management an application for early retirement.
If approved, I would plan to depart on the 1st day of the currently authorized
period, 30 December 1997.
My primary reason for seeking
this opportunity to retire is that this agency is no longer adequately
supporting the function for which I was hired, the classification and protection
of wildlife pursuant to the Endangered Species Act of 1973, and indeed,
often is working against this function. I have become particularly concerned
about the agency's seemingly unrestrained use of public funds to carry
on litigation and other actions to thwart or delay appropriate classification
and regulation of species such as the lynx. It also recently was unsettling
to learn that the agency is essentially supporting the destruction of the
wolf in Central Asia to justify issuance of permits for American hunters
to import trophies of the threatened argali sheep, which itself may be
contrary to regulations. My own efforts to call attention to and mitigate
these problems have failed.
Notwithstanding the above,
I readily acknowledge that this and associated agencies have many dedicated
employees and worthwhile programs, notably (but not limited to) those involved
with wolf conservation and research.
Another factor in my application
is that work-related pressures, to which I have been subject, especially
within the last year, have been the cause of considerable stress and may
be aggravating conditions potentially damaging to my health.
I do not want, and will not
accept or participate in any party, gift, card, testimonial, or other recognition
of what to me is a distressing event.
If, after retirement, my
services might be useful relative to measures that would appropriately
classify, protect, or study the urial sheep, koala, wolf, or any other
foreign or native species, I would be glad to be of help to the extent
circumstances may allow.
I ask that my home address
and telephone number (see below) be given freely to parties seeking my
attention or assistance. Anyone, whether in or out of this agency, is welcome
to contact me at this time.
Ronald M. Nowak 2101 Greenwich
Street Falls Church, Virginia 22043 (phone 703-237-6676). 
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