When the Endangered Species Act passed in the Senate 45 years ago this month, not one member voted against it. As University of California at Berkeley law professor Holly Doremus has chronicled, the bill’s 1973 passage “went almost unnoticed by the national press” and was seen as a unanimous win for conservation.
Today, the act is a perpetual source of conflict among landowners, environmentalists, states and the federal government. That could begin to change with a proposal to “improve and modernize” the law unveiled last week by the Department of the Interior. The changes, which would alter the way the Fish and Wildlife Service lists certain species and designates critical habitat, could help accord win out over acrimony in disputes over imperiled species.
While some environmental groups decried the Interior Department’s announcement with sky-is-falling statements, others offered more nuance: “Although some conservationists might characterize the entire rulemaking as simply another Trump administration effort to undercut conservation,” said Jake Li of the Environmental Policy Innovation Center, “we think that a closer look will reveal both advantages and concerns from a conservation perspective.”
One advantage is that avoiding conflicts over endangered species could allow states, landowners and conservationists to work more proactively to recover species — a glaring shortfall of the act’s first 45 years. Of the 1,692 species ever listed, only 39 have recovered. Since about half of listed species rely on private land for 80 percent of their habitat, cooperation with landowners is crucial for recovery.
The Fish and Wildlife Service does not report on litigation costs regularly. But Benjamin Jesup, an attorney in the Interior Department’s Office of the Solicitor, has noted that, over the years, “court orders and settlement agreements swamped the listing program, and [Fish and Wildlife Service] lost any ability to prioritize its efforts and get the most bang for the buck in protecting imperiled species.” And species under threat don’t benefit when the law makes enemies out of landowners who might otherwise be inclined to help in recovery efforts.
Take the dusky gopher frog, the subject of a case the U.S. Supreme Court will hear this fall. The architects of the Endangered Species Act likely couldn’t have anticipated a 2011 decision by the Fish and Wildlife Service to declare roughly 1,500 acres of private property in southeastern Louisiana as critical habitat for the frog. The reasons are straightforward: The area in question in its current condition cannot support the frog, and the species hasn’t even been documented in the state for half a century.
The Endangered Species Act directs the Fish and Wildlife Service to designate critical habitat that is “essential” to conserving an imperiled species, which can include even “specific areas outside the geographical area occupied by the species at the time it is listed.” There are only a few hundred dusky gopher frogs left in the wild, all in southern Mississippi. The Fish and Wildlife Service decided that part of the amphibian’s historical range in Louisiana should be included in its habitat designation as a hedge against drought or other catastrophe in Mississippi. Still, the agency conceded that the area is “poor-quality terrestrial habitat for dusky gopher frogs” without significant, and expensive, modifications, given that it’s part of a dense timber plantation that lacks the open-canopied ecosystem the frog requires.
“Our land is not suitable for the frog,” said Edward Poitevent, whose family owns the property. “The government and Fish and Wildlife Service have said that you don’t have the elements for it. So to make it suitable you’d have to rip up every tree on 1,544 acres, replant all of it with the right tree, make sure the ponds are still there and make sure you burn it every year. Who is going to pay for that?”
The Poitevent family has had the land zoned for eventual development, a plan that could be jeopardized by the critical habitat designation — and cost them up to $34 million in foregone development value, according the government’s estimate. It’s little surprise that the affair has caused so much acrimony.
The Interior Department’s proposal could lessen such conflict, turning attention and resources away from litigation and toward conservation. One proposed change states that an unoccupied area could be designated as critical habitat only if “there is a reasonable likelihood that the area will contribute to the conservation of the species.” It notes that the government “might conclude that an area is unlikely to contribute to the conservation of the species where it would require extensive affirmative restoration that does not seem likely to occur.” That scenario sounds familiar to those who have followed the dusky gopher frog case.
While some might lament a higher threshold to designate certain types of habitat, it’s worth asking what conservation benefits have accrued to the frog as a result of the government’s 2011 designation. The Louisiana landowners have no intention of spending the significant sums it would require to establish proper frog habitat, and the government admits that it cannot force anyone to actively partake in recovery of an endangered species. The great shame, it would seem, is that no matter how the Supreme Court rules, the decision is unlikely to improve prospects for the frog.
If less time and money were spent on lawyer fees and years-long disputes over endangered species, more could be channeled to actual recovery. The Nature Conservancy has been working to recover the dusky gopher frog in southern Mississippi since 2004. It has raised thousands of the amphibians at a frog-rearing lab and restored hundreds of acres of longleaf pine habitat.
When a species hasn’t existed in an area for years or even decades, it makes sense to limit critical habitat designations to places where recovery programs can reasonably and amicably succeed. Doing so would probably make more landowners want to partner with groups such as the Nature Conservancy to recover species. That would make a real difference for conservation — and be just the type of outcome that those senators of the 1970s had in mind.
Tate Watkins is a research fellow at the Property and Environment Research Center, a nonprofit in Bozeman, Montana, dedicated to improving environmental quality through property rights and markets.
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