When the Endangered Species Act (ESA) was passed in 1973, it represented the best intentions of man to fix mistakes of the past. The result of those good intentions of Congress was, without a doubt, the most far-reaching and powerful federal law ever enacted.
But some unintended consequences came along with the ESA as well. Thirty years later, by just about any objective measure, the Endangered Species Act (ESA) can be considered nothing better than a colossal failure.
In the years since the ESA was passed, the federal government has added more than 1,300 species to the federal protected list. Fewer than 30 species have been removed. If “endangered” designations and de-listings are truly a measure of species recovery, that would be a ratio of 45 failures for every one success.
Of course, bureaucratic designations and listings often driven by interest group strong-arm tactics are hardly an accurate barometer of species-recovery efforts.
Getting on the list is easy; getting off is nearly impossible.
Some policymakers have suggested that measures of the ESA’s success are somehow directly proportional to the number of listings. Former Interior Secretary Bruce Babbitt once told Fish and Wildlife Service employees that their goal should be to add 1,000 new species to the list. That was Secretary Babbitt’s measure of success. (In fact, during the Babbitt years, the Department of the Interior added 486 species to the list.)
For those of us in the West who feel the impact of the ESA on a daily basis, this thinking seems exactly backwards. We look at every single new addition to the endangered species list as a failure. If any species has to be given such an extreme level of emergency protection, by definition it means we have failed to protect it adequately.
In the past 30 years, bureaucrats and vested interests purportedly responsible for administering and overseeing the ESA have lost sight of its noble intent, endangering the plight of the very species the Act was designed to protect.
Paperwork replaced protection. Burdensome red tape and regulation bred bitterness among property owners toward the governments responsible for administering the Act … and even toward the very species we hope to protect. The sad legacy of the ESA to date is the frequent triumph of politics over sound policy, the rights of people, and the protection of species.
Because the government rarely provides any milestones by which a species can be de-listed, landowners and others directly influenced by the Act’s regulatory burdens lose hope. Instead of working in partnership with government to promote the recovery of truly endangered species, they frequently see little choice but to do battle with bureaucrats to figure out how they can best circumvent its regulations.
Colorado’s New Approach
In Colorado, we are taking a new approach. We are working in a collaborative manner with local governments and affected individuals to restore the original intent of the ESA by actively promoting species recovery. Our Department of Natural Resources is operating fish hatcheries; reintroducing lynx, among other species; and attempting to recover the animals in the wild.
Our ultimate goal: to recover every Colorado species currently listed as endangered and prevent the listing of additional species.
While far from a panacea, Colorado’s new approach does demonstrate that home-grown compliance efforts are likely to be far more successful at saving species and protecting the rights of property owners than Washington DC-driven bureaucracies.
What’s Broken?
We began a new state leadership-based approach to endangered species because the ESA is fatally flawed in three critically important ways:
- It ignores the public’s clear desire to recover endangered species.
The public overwhelmingly supports the protection and recovery of threatened and endangered species. The key is that they want them recovered and removed from the list. A program that seeks to increase the population of a species and, as a result, end its status as endangered, is more in keeping with the public’s desires.
- The law is overly broad and unnecessarily inflexible.
We must work within the framework of the Endangered Species Act, which is among the most powerful laws ever passed by Congress. Basically, if a species is listed as “endangered” or “threatened,” regulations virtually compel government policies and private conduct to fall in line. The process is not subject to environmental review like most other federal decisions. There is no cost-benefit analysis, and public input is largely irrelevant.
Practically speaking, it is far too easy to get a species listed. Interest groups regularly file petitions with the U.S. Fish and Wildlife Service asking for new species to be added to the protected list, and the Service has 90 days in which to respond.
As a matter of course, the Service routinely adds species to the list because, if it fails to do so, the interest group will often file a lawsuit, whereupon a federal judge may order the listing. Sound science is often lacking in these listing requests, and the needs of those affected by the potential listing are not thoroughly considered.
- Once a species is added to the list, governments and affected parties often lack the tools to eventually get a species removed from the list.
Once a species is added to the list, it typically becomes a serious obstacle and annoyance for many entities inside and outside of government. Congress has rarely given the Fish and Wildlife Service the financial resources to help the endangered species actually recover. So the seemingly perpetual listing becomes a problem for the U.S. Forest Service, Bureau of Land Management, Bureau of Reclamation, Army Corps of Engineers, National Park Service, state wildlife departments, farmers and ranchers, county road departments, and local governments throughout the habitat area.
This is the source of the loud discontent I heard from Coloradans. They see little connection between the actions of the federal government and common-sense efforts to recover an endangered species.
These realities leave citizens across the country–especially in public land states–with two stark choices. We can either attempt to recover these species ourselves and get them off the list, or we can continue to endure an intrusive regulatory regime that hurts the economy and does little to help endangered fish, birds, and mammals.
The New Approach
Since the early days of my administration, we have faced federal regulatory impediments to a dedicated, responsive, and service-oriented state government.
As governor, I find it especially disturbing that the ESA has imposed huge costs and obligations on many state agencies, local governments, and businesses, while achieving so little in recovering species. Colorado has 15 federally listed species, with eight more likely to be listed in the foreseeable future, showing us that a new approach was urgently needed.
The ESA pervades nearly all aspects of government services and human activities. Whether we are working on long-overdue road improvements, preserving the important agricultural economy, providing water that is so vital to life in the West, or enhancing outdoor recreational opportunities for our citizens, we run into endangered species issues.
My administration decided to take a different approach to endangered species from the beginning. We reviewed the impacts of federal endangered species listings on the operation of state government, and we quickly concluded there would be significant utility for the entire state if we moved forward with an aggressive species recovery program facilitated by the state government.
We had resources to work with. In 2000 I signed an executive order creating a new ESA coordination office. Through this office, we moved forward with a program guided by three major principles: collaboration with private citizens, local governments, and even other states and nations; the development and employment of sound science; and creation of milestones that measure success.
Collaboration with Private Citizens and Local Governments
Much of Colorado’s endangered species initiative focuses on outreach to private citizens. Our state team develops strong working relationships with citizens to develop practical solutions. The message is clear: The ESA is here to stay and we must find ways to accomplish conservation of candidate species before a more restrictive listing of species leads to the imposition of stricter and counterproductive regulations.
Equally important, we have been working to overcome the natural skepticism among landowners who are loath to believe government wants to balance the right to use private land with the goal of recovering endangered species. The good news is, however, that they share my pragmatic notion that species conservation is best accomplished on the front end before the regulatory burden accompanying “threatened” or “endangered” listings becomes a reality.
Following a “threatened” designation the federal government must publish rules outlining when the incidental “take,” or death, of a species can be allowed in the course of normal farming operations. In those instances, the state has worked closely with the federal agencies to craft rules that help preserve farming practices in the least-disruptive manner. Those activities are successful only if the landowners voluntarily participate and share their expertise. Most have been more than willing to do so.
For example, the federal listing of the Preble’s meadow jumping mouse led to considerable debate about the rule that would accompany the listing. One initial draft suggested farmers who burn their ditches are destroying Preble’s habitat, and perhaps the mice themselves. The draft proposed that agricultural burning be prohibited in the critical habitat.
But the news to the federal bureaucrats was that, in the West, you can’t farm without burning your ditches. We crafted a compromise that permits incidental take during periods when burning is necessary, and recognizes that habitat is actually created or improved by such farming activities. The result does more than just free farmers from an impossible dilemma–it promotes the recovery of the species.
Collaboration on the National and International Level
The desire to protect endangered species knows no political boundaries, and Colorado certainly has many comrades when it comes to dealing with endangered species.
For example, Colorado is working with Wyoming and Nebraska on South Platte River conservation strategies for various endangered or threatened species down river in Nebraska. New Mexico’s struggle with conserving the silvery minnow and the Rio Grande cutthroat trout on the Rio Grande keeps Colorado officials focused on the ongoing tension between species conservation and water compact entitlements. Our program to recover Colorado River endangered fish involves six states and four federal agencies, along with water, power, and environmental interests.
Promoting Sound Science
There is a vitally important phrase in the Endangered Species Act called “best available science.” Contrary to popular myth, the Act does not require good science, peer-reviewed science, or even accurate science. Rather, it requires decisions be based upon the “best available” science. In many cases the petition contains the only available science on species that have been little known and never studied previously.
When the National Wildlife Federation filed a petition to list the black-tailed prairie dog, Colorado, like most Western states, had little data regarding the prairie dogs and their habitat. Because they had been considered a nuisance by farmers for more than a century, and listed as a pest species in wildlife law, Colorado had never devoted any resources to studying them.
We know that, by any common-sense measure, they are not endangered. We know there are hundreds of thousands of them, occupying hundreds of thousands of acres across the Plains from New Mexico to North Dakota. But absent any scientific evidence of those facts, the “best available” science was contained in the petition for endangerment classification, and a listing of some kind became almost inevitable.
The federal government has postponed a listing of the prairie dog for now. Our state agencies are quickly pooling their resources to promote species conservation and collect further data about the species to ward off any unnecessary listing in the future.
Prairie dogs are just one example of the need for and value of information and research regarding endangered or threatened species. Colorado’s lynx recovery program became a fascinating eye-opener for many. Perhaps for the first time, a state government is in a position to direct decision-making on a nationally listed species precisely because we are the keepers of the “best available science.”
The lynx reintroduction program faced several first-year setbacks in 1999-2000. The program faced a significant amount of public derision. A number of the first cats brought to Colorado starved to death within a few weeks. Several others were hit by cars, while a number were shot.
But as biologists in the Colorado Division of Wildlife were allowed to do their research, monitor the animals, learn from mistakes, adjust protocols, and update monitoring methods, they also began to learn more about the lynx–and what they have learned is surprising and vitally important.
Early federal information on lynx was based entirely upon their behavior in Canada and Alaska, where they are common. The last lynx documented in Colorado was in 1973, but even before that they were extremely rare in the Southern Rockies–fewer than 20 have ever been documented in Colorado’s history. Little was known about how they would behave in Colorado, such as what they could eat and whether they could survive, primarily because the climate and environment are so much different than Alaska or Canada.
Federal documents said the San Juan Mountains were the southernmost limit of the lynx’s migration, yet several have migrated further south, even into New Mexico. Federal officials said lynx wouldn’t cross open areas greater than 100 yards because they live only in dense wooded habitat. Yet several Colorado lynx introduced in Southwest Colorado have crossed enormous areas of wide-open spaces on lengthy migration routes. One was actually trailed to Nebraska, several to the San Luis Valley, still others north of Interstate 70. Federal documents said they ate only snowshoe hares, yet Colorado lynx have eaten a much more varied diet. Some federal officials said lynx were threatened by ski areas, yet at least one was monitored actually living in a ski area for a period of time.
The lynx reintroduction program has taught valuable lessons and shown that larger species of animals can also be recovered by taking the same focused approach we took with endangered fish. The lessons learned and our eventual success also mean the State of Colorado now possesses the “best available science” regarding the lynx. That’s important, because it means Colorado will eventually drive the decision whether to de-list the recovered species, instead of politicized interest groups often motivated by goals other than species recovery.
Milestones that Measure Success
The goal of the ESA is to recover species. To do so, it is imperative that all affected parties have an understanding from an early stage what benchmarks must be achieved to define a species as “recovered.” Creating measurable milestones keeps all parties focused and motivated. Milestones provide the possibility of eventual de-listing of endangered species. Milestones create hope.
Landowners traditionally have dreaded endangered species classifications because they meant endless regulatory impediments to their way of life. Landowners have nothing to work toward. The federal government has offered them virtually no hope: No matter how hard they work, they seemingly will never win freedom from the ESA’s long tentacles of intrusion.
After I took office in 1999, I told natural resource leaders, municipal leaders, landowners, and industry groups in Colorado that our goal should be to successfully recover and take off the list all 15 species characterized as “endangered” or “threatened” in Colorado, while also ensuring that no new species are added to the list. This sent a positive message to landowners and others in Colorado suffering the burdens and costs of ESA-related regulations.
It was a new tone. Traditionally, state officials turn toward Washington DC, shaking their fists in anger and calling for reform or repeal of the Act, and Westerners for a generation have wrung their hands and gnashed their teeth. Finally, those affected by the Act had reason for hope.
After setting this new tone, our state officials sought from the federal government the most important milestones of all–establishment of measurable goals for the de-listing of species. We asked for answers to straightforward questions. When will the federal government consider de-listing the species? What needs to occur? What are the habitat needs of the species? How much habitat does the species need?
Demands for measurable milestones from the federal government were unprecedented just a few years ago. Now, publication of recovery goals is a top priority. The successful efforts of state officials to force federal officials to publish workable recovery goals for four species of endangered fish were a magnificent accomplishment. But obtaining these goals from federal officials is still not routine. The key to success is to ask.
Bill Owens is governor of Colorado and chairman of the Center for the New American Century. This article and additional news regarding Colorado’s species recovery programs can be found at www.cnaconline.org.
