Feds losing grip on species act

By Craig Welch
Seattle Times staff reporter

	DEAN RUTZ / THE TIMES Mother and juvenile spotted owls, a threatened species.
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A funny thing happened to the landmark Endangered Species Act (ESA) on its way to turning 30 today: Depending on whom you ask, the government either lost — or ceded — control over it.

When a federal judge in Seattle this month ordered the government to rethink its decision not to protect Puget Sound orcas under the ESA, it did so at the behest of a Tucson, Ariz.-based environmental group, which had filed a legal challenge.

When King County announced in November that a long-troubled run of Lake Sammamish kokanee had gone extinct, the federal government shrugged off blame, claiming the same Tucson group had kept it too busy fighting lawsuits to even consider protecting kokanee.

Three decades after President Nixon signed the Endangered Species Act into law, nearly every major decision about what animals or plants to protect — from the Columbia Basin's pygmy rabbit to the Washington gray squirrel — is now made, at least in part, by Arizona's Center for Biological Diversity.

Founded more than a decade ago by a philosopher, a biologist and an emergency-room doctor, the Center for Biological Diversity has grown so efficient and successful at filing lawsuits that it is responsible for more than 95 percent of the species nationwide that have been protected by the act since the year 2000.

Nationwide ESA statistics How many species in the United States are listed as threatened or endangered? 516 U.S. species of animals and 744 U.S. species of plants are listed. How many candidate species are there? 117 species of animals and 139 species of plants are candidate species. How many species are proposed for listing? 27 U.S. species of animals and four U.S. species of plants are proposed for listing. How many listed species have designated critical habitat? 450 U.S. species have designated critical habitat. Source: U.S. Fish and Wildlife Service

No one disputes that those plants and animals needed protection; most had been on a waiting list for years, in some cases since the 1970s. But where previous groups that pushed for species protection with lawsuits focused on a handful of charismatic creatures — such as northern spotted owls — the Center for Biological Diversity has filed suits covering hundreds of species, arguing that the White House refuses to spend the time and money necessary to conserve the species.

Protected species in Washington state Animals listed as "endangered" Short-tailed albatross; woodland caribou; Columbian white-tailed deer; brown pelican; Columbia Basin pygmy rabbit; Upper Columbia River spring chinook salmon; Snake River sockeye salmon; leatherback sea turtle; Upper Columbia River steelhead; humpback whale Animals listed as "threatened" Grizzly bear; Oregon silverspot butterfly; bald eagle; Canada lynx; marbled murrelet; northern spotted owl; western snowy plover; Puget Sound chinook salmon; Snake River fall chinook salmon; Lower Columbia River chinook salmon; Snake River spring/summer chinook salmon; Columbia River chum salmon; Hood Canal summer chum salmon; Ozette Lake sockeye salmon; green sea turtle; Steller's sea lion; Snake River steelhead; Upper Willamette River steelhead; Lower Columbia River steelhead; bull trout; gray wolf Plants listed as "endangered" Marsh sandwort; showy stickseed; Wenatchee Mountains checkermallow; Bradshaw's desert parsley Plants listed as "threatened" Water howellia; golden paintbrush; Kincaid's lupine; Nelson's checkermallow; Spalding's catchfly; Ute ladies' tresses Source: U.S. Fish and Wildlife Service

"It's the height of nihilism for an agency to leave a species on the waiting list for 25 years," said center director Kieran Suckling. "They want maximum controversy. They want to stir up hysteria to build support for weakening the ESA."

The Bush administration denies the charge, pointing out that since the ESA's inception, the government has never had the resources to protect every species it could.

And now — reiterating a claim made by the Clinton administration — it says it's spread so thin responding to legal challenges that it has lost the ability to list new species based on the urgency of the threat against them.

"Our priorities are being driven by the courts and not by professional biologists," Craig Manson, deputy secretary for the Interior Department, which oversees the bulk of ESA listings, said in an interview last week. "When I've got biologists drafting declarations for court cases, that's a problem."

Either way, this much is true: The Bush administration is now the first in the act's history that hasn't proactively listed a new species under the ESA. (All two dozen listings during its first three years were the result of lawsuits.) The Clinton and first Bush administrations each listed several dozen species a year.

And the situation is likely to grow more adversarial.

The White House is soon expected to finish controversial reviews of the status of spotted owls and all of the Northwest's listed salmon stocks. The administration could decide to increase or decrease protections, or remove the creatures from the endangered-species list altogether — decisions that will be scrutinized by environmentalists and anti-ESA groups.

Meanwhile, the Center for Biological Diversity just received grant money to formally petition the government to list 250 more species, some of which have been proposed for listing by federal biologists since the 1980s.

"We want to draw attention to the absolute and dismal failure of the Interior Department to do this on its own," Suckling said.

As the rhetoric escalates, outsiders fear neither side is working to resolve the ESA's most pressing reality: While listing has kept most of the more than 1,200 species protected under the act from disappearing outright, only seven have been removed from the list in 30 years because they were deemed recovered. Those included the American alligator, the brown pelican and gray whales.

"There's no doubt the pressure of litigation has put this administration and the previous administration in a position that they are crying uncle," said Michael Bean, an attorney with the politically moderate environmental group Environmental Defense. "It's also true the government hasn't been as vigorous as it ought to be. But we have to get to a point where the act is more successful than it's been."

Many of the ESA's greatest success stories were relatively simple. The rebound of wolves and bears was largely the result of bans on hunting and road-building that brought the creatures in contact with humans. Outlawing the pesticide DDT helped bald eagles make an enormous comeback.

Remaining problems are significantly more complex. Much of the Northwest woods was put off-limits to logging to protect the northern spotted owl, for example, but owl numbers are still in decline in Washington. Some biologists fear the owl's future may ultimately be decided by territorial competition with the more common barred owl, which is usurping its turf.

Farmers, ranchers, home builders and resource-extraction industries have long used examples such as the owl to push for scaling back the ESA, arguing it puts the needs of plants and animals ahead of people. But after more than a decade of such efforts, most observers believe ESA foes lack the political muscle to completely overhaul the act anytime soon.

At issue, instead, is how the act is used.

In April, Deputy Interior Secretary Manson told Congress that a backlog of more than 250 "candidate" species was the result of time and effort spent responding to lawsuits. "Candidate" species are plants and animals with enough preliminary information to be protected under the Endangered Species Act but which have not yet been listed.

Manson's main complaint: Environmentalists, particularly the Center for Biological Diversity, were forcing the agency to define and protect "critical habitat" for species, which was preventing the agency from using its resources for the more pressing task of listing new species.

"The priorities for spending money under the ESA have been warped by litigation that's preventing real, on-the-ground conservation: preservation of real habitat that you can touch and feel and smell," Manson said last week.

Suckling, a Heidegger-quoting one-time philosophy major, doesn't dispute his group's role. With a full-time staff of 30 and a $1.8 million budget, the center has filed 175 lawsuits under the ESA, with a 95 percent success rate. The group has won listing protections for 329 species.

Suckling said the agency could end the controversy by asking for the money necessary to accomplish what was required by law — listing more species and designating critical habitat, a cost some estimate at an additional $150 million to $200 million or more.

Manson said the federal Fish and Wildlife Service this year asked Congress for $12.3 million for species listing in this year's budget cycle — a bump of 30 percent over the previous budget.

"Any government program that gets a 30 percent increase — that's pretty amazing," Manson said. "There comes a point where you don't want to throw good money after bad, so to speak."

Suckling countered that members of Congress have said they would consider providing even more money. But the Bush administration hasn't requested it.

Craig Welch: 206-464-2093 or cwelch@seattletimes.com

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