| Reforming the Endangered Species
Act: The Endangered Species Act Reform Project - a nationwide
project of Pacific Legal Foundation
July 2, 2003 By Dave Stirling Vice President, Pacific Legal Foundation 10360 Old Placerville Rd, Suite 100 Sacramento, CA 96827 916-362-2833 Fax: 916-362-2932 PLF has been hard at work improving our Endangered Species Act Reform Project (ESARP), which is why you haven't heard from us over the past few months. In light of the significant progress we have made in our efforts, we have developed a tighter litigation approach in taking on the ESA. We are pleased to provide you with the following update on the ESARP, recent PLF victories, and proposed legislative reforms. THE NEW AND IMPROVED ESARP As you know, our strategy in the courts aims to reign in both the overreaching language and implementation of the ESA. Our litigation program originally focused on three general categories of court challenges to the ESA: 1) Junk Science -- where the listing agency utilized "junk science" to support its listing; 2) the Commerce Clause -- where the listed species has no significant relationship to interstate commerce, i.e., no direct commercial value and no interstate mobility; and 3) Economic Impact -- where the listing agency declines to conduct the required economic impact analysis of a species' critical habitat designation. The revised program retains these critical targets, but we have refined our objectives. Now, PLF seeks to emphasize our efforts to establish a U.S. Supreme Court decision determining the validity of the ESA under the Commerce Clause. At the same time, we will seek to establish a U.S. Supreme Court decision, or lower court decisions that are followed by agencies, declaring the proper statutory standards for listing, delisting, permitting, and critical habitat designation of threatened and endangered species, including a determination that: a. Genetically identical species (wild or bred) are to be treated the same under the Act (e.g., Alsea Valley Alliance v. Daley). b. Listing is limited to "species," "subspecies," or "distinct population segments." c. Delisting must be considered every five years. d. "Critical habitat" must be limited to "essential" and "occupied" areas. e. The economic analysis is cumulative and includes impacts from listing (e.g., New Mexico Cattle Growers v. USFWS). f. Actions taken under the Act may not be based on speculative science (e.g., Arizona Cattle Growers v. USFWS). g. "Reasonable and prudent alternatives" must be economically feasible for the applicant and meet the state project objectives. h. A requirement that property be kept essentially in its natural state must be compensated. Finally, through the public education component of the ESARP, we will continue to pursue every opportunity to raise public awareness about the problems with the ESA and its real human effects. As we've noted before, changing the entrenched public misconception that the ESA is "good law" will take many years of hard work. To read PLF's article "Challenging the ESA's Expansive Application in the Courts," please copy and paste the following URL into your web browser: http://www.pacificlegal.org/view_SearchDetail.asp?tid=CommentarysField=CommentaryID&iID=92. GOOD NEWS FROM THE LITIGATION FRONT: MAJOR VICTORY IN ALAMEDA WHIPSNAKE CASE In a landmark decision dated May 9, 2003, U.S. District Judge Anthony Ishii ruled that the U.S. Fish and Wildlife Service (FWS) engaged in an unlawful and grab when it designated critical habitat for the Alameda whipsnake. The Service had designated over 400,000 acres of land in Alameda, Contra Costa, Santa Clara, and San Joaquin Counties impacting large portions of private property slated for family homes. The designation was highly controversial given the desperate need for housing in the San Francisco Bay Area. Attorneys from PLF representing the California Alliance for Jobs, the California Chamber of Commerce, and the Home Builders Association of Northern California filed the lawsuit that led to the decision. The challenge focused on the government's failure to follow the requirements of the ESA when making the determination of critical habitat for the whipsnake. FWS ran roughshod over the requirements after agreeing to expedite the process for determining appropriate habitat as part of a settlement agreement with an activist environmental organization. Four months after the settlement, Fish and Wildlife officials rushed out an ill-considered rule. PLF showed that FWS didn't bother to identify what areas were truly needed by the snake and simply included all land it believed was within "the range" of the snake that 'might contain' 'habitat features.' The court ruled that the law requires a far more careful analysis than the government performed and ordered the FWS to undertake a thorough review. Under Judge Ishii's order, the restrictions have been lifted until the government prepares a lawful justification. To read the following items, please copy and paste the URL into your web browser: (1) Press Release & Court Order http://www.pacificlegal.org/view_SearchDetail.asp?tid=ReleasesField=ReleaseID&iID=200 (2) PLF's article "How Environmental Organizations and Federal Bureaucrats Manipulate the ESA to Suppress Californians" (discussing the Alameda whipsnake case) http://www.pacificlegal.org/view_SearchDetail.asp?tid=CommentarysField=CommentaryID&iID=89 DECISION IN ALSEA PENDING AT NINTH CIRCUIT On May 8, PLF presented oral argument to a three-judge panel of the Ninth Circuit Court of Appeals considering the issue of ESA protections for so-called "threatened" salmon populations. On appeal is another landmark decision, this time in Alsea Valley Alliance v. Daley, which was issued by Federal District Judge Michael Hogan on September 10, 2001. At trial, PLF successfully invalidated the listing of the Oregon Coast coho salmon as a "threatened species." Judge Hogan ruled that the National Marine Fisheries Service (NMFS, now known as NOAA) illegally distinguished between the plentiful hatchery-spawned salmon and so-called "wild" salmon by listing only the wild salmon, while totally disregarding the genetically identical, hatchery-spawned salmon. You may recall that the Alsea case began in 1998 when Ronald Yechout, on a hunting trip near Philomath, Oregon, stumbled upon state wildlife regulators clubbing to death thousands of migrating salmon. PLF exposed the government "conservation" program that targeted hatchery fish for extermination supposedly to help increase the population of "wild" salmon. No date has been set for a ruling in the case. To read the press release, Judge Hogan's ruling, and related articles, please copy and paste the following URL into your web browser: http://www.pacificlegal.org/view_SearchDetail.asp?tid=ReleasesField=ReleaseID&iID=199 PLF GIVES INPUT ON CONGRESSIONAL ESA REFORM EFFORTS In August of last year, we reported that the General Accounting Office (GAO) was conducting a study of how the ESA can be changed to remove some of its problem areas. The study was launched in response to a request by the former chairman of the House Resources Committee, Congressman James Hansen of Utah, who has since retired. The GAO requested PLF's input in that regard, and we were happy to oblige by providing them with PLF's "15 Suggestions for Legislative Reform of the Endangered Species Act," which contains suggested amendments, along with examples of abuse. Last month, PLF was again called upon to make recommendations on improving the ESA. California Congressman Dennis Cardoza (D-Merced) asked for PLF's comments on legislation he is drafting, encouragingly entitled "The Critical Habitat Reform Act of 2003." Cardoza's bill proposes some welcomed clarification for certain critical habitat provisions. We have submitted our comments and will keep you apprised of the progress of this legislation. For a copy of PLF's latest list of suggestions -- now at 17 and counting -- please send an e-mail to esarp@pacificlegal.org and request "17 Suggestions for Legislative Reform of the ESA." NATIONAL SECURITY AND THE ESA In April, California Congressmen Elton Gallegly (R-Thousand Oaks) and Richard Pombo (R-Tracy), the new chairman of the House Resources Committee, introduced H.R. 1835, the "National Security Readiness Act of 2003," a bill that would modify the ESA as it relates to military training. When provisions of the bill were included in the Defense Authorization Act, Congressman Pombo advanced a broader proposal that would have applied to all federal agencies. In late May, however, Pombo's approach was abandoned in favor of a more narrow one, which applies only to defense installations. We can only assume that the decision to limit the bill was a result of the intense political attacks that would undoubtedly be launched against the legislation -- and thick-skinned Pombo -- by the usual suspects. Not surprisingly, the California League of Conservation Voters kicked off an orchestrated negative campaign last month against Congressman Pombo and his leadership as chairman of the Resources Committee. The message from environmental extremist organizations is clear: Legislators who dare suggest that the ESA could be improved can count on becoming the next target of the environmentalists' billion-dollar propaganda machine. Still, the reforms that were successfully included in the Defense Authorization Act are a step in the right direction. The provisions give the military greater flexibility to train and test weapons systems by prohibiting further designations of critical habitat on installations in areas where there is an Integrated Natural Resources Management Plan (IRMP), prepared in cooperation with Department of Defense (DOD) and state and federal Fish and Wildlife Services. As Gallegly explained in a recent op-ed, the legislation hardly gives the military carte blanche over their training areas: "Critical habitats are set-asides for a single species. The areas are, in many cases, closed to military activities. Management plans, such as the one under which Vandenberg Air Force Base has won 45 environmental awards, take into account an area's entire ecology and recognizes that species are interdependent. The comprehensive plans allow for preservation of the environment, including endangered and threatened species, while still allowing the military to train and test. It's a holistic rather than a piecemeal approach." On a related note, you may be interested in a recent PLF article on the unconscionable imbalance between the billions the federal government spends to protect salmon and the paltry death benefit paid to the families of soldiers killed in military service to our country. To read the following articles, please copy and paste the URL into your web browser: PLF's article "Salmon and Soldiers: An Unconscionable Imbalance" http://www.pacificlegal.org/view_SearchDetail.asp?tid=CommentarysField=CommentaryID&iID=83 Rep. Gallegly's op-ed "Both wildlife, military could declare victories" http://www.house.gov/gallegly/col060103enviro-military.htm "Pombo lashes out on environment: In a barrage of press releases, he attacks conservation groups" http://www.sacbee.com/content/news/environment/story/6944771p-7894052c.html We encourage you to use the opportunities created by the victories in the Alameda whipsnake and Alsea Valley cases, and the legislation noted above, to write op-eds, articles, or in other ways educate the public about the problems with the ESA. Should you have any questions about the cases or any of the items in this update, please don't hesitate to contact me at esarp@pacificlegal.org or fax to my attention at 916-362-2932. As usual, please forward this letter to any party who might have an interest. Founded in 1973 as an IRC Section 501(c)(3) public interest legal organization, Pacific Legal Foundation litigates in the courts on behalf of limited government, individual and economic freedoms, ownership and reasonable use of private property, environmental balance, and free enterprise. PLF's ongoing legal caseload averages about 180 cases, involving some 35 states, and is advanced by a staff of 25 attorneys, working in state and federal courts, including the United States Supreme Court. PLF's headquarters office is in Sacramento, CA, with regional offices in Bellevue, WA; Honolulu, HI; and Miami, FL. |