On May 12, 2002, the United States Fish and Wildlife Service (FWS) published a Federal Register notice rejecting petitions I had filed to remove from the Endangered Species List two species of sucker fish found in the Klamath Basin.
The fish were listed as endangered in 1988, on grounds that almost immediately proved to be false. Biologists claimed, for example, the fish had not successfully spawned in 18 years. Yet more than 10 times the expected population was found soon after the listings, with fish from all age classes, proving the suckers had been spawning all along.
No evidence suckers are endangered
On July 16, 2001, David Vogel, a biologist engaged by the Klamath Water Users Association, testified before Congress as to the serious deficiencies in the sucker listing. His testimony, along with the documents in the files of the Service, proved there is no evidence the suckers are endangered at all.
Junk science provided the rationale for last year’s seizure of Klamath Basin water, and junk science drove the listing in the first place.
On October 19, 2001, I filed a petition to delist the suckers. The law required a formal response by the FWS within 90 days, “to the extent practicable.” The Service’s local office spit out a draft finding, and then the process ground to a halt.
On March 12, 2002, I filed a complaint to make public the 90-day finding. When that didn’t work, I filed a motion for summary judgment on May 6, 2002. The Service then issued its finding: “no substantial information has been presented or found that would indicate that delisting of the Lost River sucker or shortnose sucker may be warranted.”
Overfishing the culprit
The Federal Register notice begins by observing, correctly, that severe overfishing (principally by the Klamath Tribe, though the Notice does not say so) drove populations down until the Oregon Department of Fish and Wildlife halted the fishing in 1987. Rather than wait for the fishing ban to have its anticipated effect, the FWS rushed in to list the suckers as endangered in 1988.
According to the Service, we should not be misled by the fact that scientists found virtually no suckers in the 1980s, yet hundreds of thousands of them in the 1990s. The Service says “comparisons between current [population] estimates and those made during the fishery, prior to its termination in 1987, are not informative due to extreme differences in methodology.”
But the scientists prior to listing were trying to estimate sucker populations, and so were the scientists afterwards. For the FWS to say the estimates cannot be compared is simply a pseudo-scientific way of saying the FWS refuses to acknowledge the simple truth: Sucker populations went way up after overfishing stopped, and are no longer in any appreciable danger of extinction.
Such a finding is anathema to the FWS and its employees, many of whom would be out of a job but for the listings. Thus the Service claims the suckers are still “endangered,” and that:
The endangered status of the suckers is based upon continuing threats to the populations. The 2001 status review identifies continuing threats to the two species which warrant maintaining their listing as endangered under the Endangered Species Act, including but not limited to habitat loss, degradation of water quality, periodic fish die-offs, and entrainment into water diversions.
This is the grossest sort of junk science. Perhaps the most egregious statement is the claim “entrainment” (being sucked into irrigation canals) poses a meaningful threat of extinction. A population of hundreds of thousands of fish cannot possibly be pushed to extinction by sucking out a few stray fish from the fringes of the population.
Ironically, at the same time the Service complains in its Notice about “entrainment,” it complains in a press release heralding the Notice about “barriers to movement between different populations.” Where are the different populations? At the other end of canals where suckers are entrained, of course. So suckers are endangered because facilities allow them to move between bodies of water, and endangered because they can’t move between bodies of water.
Threats undocumented
The second justification for perpetuating the suckers’ “endangered” status, “habitat loss,” fares no better. Development of the Klamath Basin Project significantly increased the total quantity and quality of habitat available to the suckers, insofar as Upper Klamath Lake is bigger, as are other reservoirs where suckers are found.
The FWS does not identify the magnitude of alleged habitat loss (the press release calls it “extensive”), identify any particular loss, or explain the baseline against which such loss is to be measured. Nor does the Service identify the effect of the alleged loss upon the risk of sucker extinction. Expert testimony of David Vogel, ignored in the Notice, states “it is now obvious that the species’ habitats were sufficiently good [at the time of listing] to provide suitable conditions for these populations.”
The FWS Notice also claims continued “endangered” status is justified by “water quality” problems. But prior to development of the Klamath Basin Project, the sucker habitat was frequently a stinking swamp from which early explorers could not even water their horses because the water quality was so bad. That may explain why the Service does not identify the magnitude of alleged water quality degradation, does not cite any particular examples of water quality degradation, does not offer the baseline against which degradation is to be measured, and does not document the effect of any such degradation. The press release refers only to “extremely poor water quality”—something I have never seen in my trips to the Upper Klamath Lake.
Finally, the FWS says continued listing is justified because of “periodic fish die-offs.” If die-offs are “periodic,” they continue over and over without causing the extinction of the population. The Service has no evidence that occasional fish kills (from late summer algae growth) threaten the continued existence of the suckers, which have survived droughts for centuries with far less refuge than they have now. In fact, tagging research has demonstrated only a tiny fraction (never more than 1 percent) of tagged fish were recovered in the kills. All available evidence suggests what the press release calls “catastrophic fish kills” don’t make much of a dent in the population, much less reduce appreciably the probability suckers will persist in the Basin.
Common sense is what’s endangered
No person with common sense would find the suckers are in any appreciable danger of extinction, or that they qualify for protection under the Endangered Species Act. The original listing was a mistake, if not a fraud, and now the Bush administration is, knowingly or unknowingly, perpetuating the fraud.
What can be done? I’ll probably amend the complaint in the lawsuit to challenge the Notice determination as defective. Most likely, all the Justice Department will have to do to beat the lawsuit is say it raises a question of “science,” not law.
The only real solution is political. Until we elect politicians who realize the Emperor has no clothes—and have the courage to say so—things will continue to deteriorate on all fronts.
James Buchal is an environmental attorney in Portland, Oregon, and author of The Great Salmon Hoax, by Iconoclast Publishing Co. The book is available through Amazon.com at http://www.amazon.com/exec/obidos/ASIN/0966195108/theheartlandinst.
