Price of Protection - Endangered Species Act remains a dividing force in county

"When we make critical habitat designations, we just designate everything as critical, without an analysis of how much habitat an evolutionary significant unit [ESU] needs." - Donna Darm, the acting NMFS (National Marine Fisheries Service) Regional Administrator for the Northwest, in a 1998 intra-agency memorandum.

(Note: Quoting from the very pro-ESA biased article below: "These plans could shift the emphasis to managing large swaths of property for the benefit of an entire ecosystem rather than micromanaging a piece of land to save a single endangered species, sometimes to the detriment of other wildlife, Mr. Pombo said." "...people such as Mr. Coffman, who generally opposes the reach of the federal government in any form, may be naysayed by supporters of the law...")

December 28, 2003

By Anna Davison, News-Press staff writer

adavison@newspress.com

The Santa Barbara News-Press

P.O. Box 1359

Santa Barbara, CA 93102

805-564-5161 (Travis Armstrong, Editorial page editor)

Fax: 805-966-6258

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To submit a Letter to the Editor: voices@newspress.com  (250-word limit)

Because of a diminutive bird called the Western snowy plover, beachgoers near Lompoc have had to mind where they lay their towels and take their dogs -- or risk a fine.

In other parts of North County, developers have had to roll up their plans to make way for the elusive tiger salamander.

On the South Coast, a golf course proposal was canned for the sake of some amphibians, and the city of Santa Barbara's plan to enlarge Gibraltar Reservoir was thwarted by an inconspicuous songbird.

Depending on your point of view, such decisions are worthy protections for imperiled species, plain lunacy or something in between.

The legislation that inspired them -- the Endangered Species Act -- was signed into law 30 years ago today. Controversial from its inception, the law has heartened environmentalists, outraged property owners, farmers and ranchers, and prompted countless lawsuits.

The law protects 45 species that occur in Santa Barbara -- 36 of them are listed as endangered; nine are considered "threatened," which under federal rules means they are likely to become endangered.

Only a couple are mammals -- the San Joaquin kit fox and the giant kangaroo rat. Among the others are the endangered California condor and the endangered brown pelican, as well as a host of little-known species, from the blunt-nosed leopard lizard to the tidewater goby. Also included are plant species, many of them -- such as the Santa Cruz Island fringepod, the Island phacelia and the Santa Barbara Island liveforever -- found only on the biologically unique Channel Islands.

Some of the critters are now locally infamous, the subjects of heated debate over the provisions of the act.

One senior Interior Department official, ruminating on the act's birthday during a Santa Barbara conference last month, got into hot water for being quoted as saying the act was "broken" -- an assertion he had to very publicly disavow the next day.

But others aren't so circumspect. "We believe the Endangered Species Act has been an utter and dismal failure," said Andy Caldwell, director of the Coalition of Labor, Agriculture and Business, or COLAB. "It has failed to recover very many species at all -- despite the number of years and hundreds of millions of dollars that have gone into it."

Among green groups, such as the Sierra Club, there's a very different viewpoint: "The Endangered Species Act is one of the many American conservation success stories that have made our nation a world leader in natural-resource management. It is a law that provides us with a lasting legacy of wildness and conserves our natural heritage, for our families and for our future."

Although few critics call for scrapping the act -- "reform" is the term used by almost all the organized groups that have run afoul of its provisions -- critics see the legislation as too often relying on "junk science" wielded by people with ulterior motives and generally blind to the rights of property owners.

House Resources Committee Chairman Richard Pombo, R-Tracy, has targeted the act for revision next year after a series of nationwide hearings.

"It has not been successful in terms of recovering endangered species, and it's caused a lot of conflict with property owners,'' said Mr. Pombo, who questions the quality of the science behind many protection decisions.

Yet Mr. Pombo, who has fought a running battle with environmental groups, said he thinks Congress could finally reauthorize the act based on a consensus that promotes more use of tools such as Habitat Conservation Plans.

These plans could shift the emphasis to managing large swaths of property for the benefit of an entire ecosystem rather than micromanaging a piece of land to save a single endangered species, sometimes to the detriment of other wildlife, Mr. Pombo said.

Environmental Defense and the World Wildlife Fund tout similar measures such as Safe Harbor Agreements [SHA] and Candidate Conservation Agreements [CCA], which also promise property owners some regulatory freedom -- so long as they take steps to protect endangered species.

Plover and out

Closing parts of Surf Beach west of Lompoc for most of the year for the sake of the Western snowy plover is a continuing sore spot for many locals.

Some Lompoc-area residents are on the cusp of suing the federal government -- specifically the Department of the Interior's Fish and Wildlife Service -- any day now.

Alice Milligan of the Surf/Ocean Beach Commission is part of a grassroots group unhappy that Lompoc's nearest access to the sea can be ruled off-limits to protect birds [that] they feel are in no way threatened.

"We're not opposed to protection," she said of her group, which with the help of the Pacific Legal Foundation is preparing to sue the U.S. Fish and Wildlife Service to take plovers off the threatened list. "We felt that adequate research had not been done and that the bird was listed as threatened without really exploring past just this particular area."

Ms. Milligan said DNA tests show the local plovers are genetically the same as plovers throughout the West and that, as a whole, those plovers are not in danger.

The legal foundation claims "the government is sitting on a wealth of scientific information that justifies removing the plover from protected status and lifting unneeded beach use restrictions," the group says.

But biologists say that since the restrictions have been in place, the North County plover population swelled to 262 breeding adults, the most seen there since records began in 1994.

And this year, fewer fines were handed out to people trespassing in 'ploverville.' "That alone is showing us that the public is onboard," said Steve Kirkland, a biologist with the U.S. Fish and Wildlife Service.

At another plover breeding site where human access has been restricted, Coal Oil Point in Goleta, 348 were counted this year, up from 180.

"That reserve seems to be working well with the people even though there's restricted access," said Katie Drexhage, a biologist with the Fish and Wildlife Service.

The plover is one of the local success stories of the Endangered Species Act, biologists say.

Another is the threatened red-legged frog, the amphibian immortalized in Mark Twain's "The Celebrated Jumping Frog of Calaveras County."

"They're popping up everywhere," according to Ms. Drexhage.

Critical habitats

The Fish and Wildlife Service, which administers the law, can designate critical habitat for each listed species "on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat," according to language in the act [ESA].

"The Secretary (of the Interior) may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned."

That process alone has triggered a stack of lawsuits -- from 'conservation groups' [until recently better known as 'environmental groups'] alleging the service [USFWS] hasn't adequately protected various species -- to irate landowners and other interest groups who argue [that] the designations are unfounded and unreasonable.

"Because landowners face economic ruin if someone finds an endangered species on their land," writes one of the act's most persistent critics, Michael Coffman, "the landowner is motivated to destroy any habitat or otherwise keep the endangered species off their land before someone finds it. It is a recipe for failure."

And though people such as Mr. Coffman, who generally opposes the reach of the federal government in any form, may be naysayed by supporters of the law, their arguments resonate in the Bush administration and even the U.S. Supreme Court.

Writing on the law in a 1995 case about hunting, Justice Antonin Scalia said in a minority opinion, "The court's holding that the hunting and killing prohibition incidentally preserves habitat on private lands imposes unfairness to the point of financial ruin -- not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use."

So far, critical habitat has been laid out here for the California condor, Western snowy plover, least Bell's vireo, southwestern willow flycatcher, Southern California steelhead, fairy shrimp and three plants, Gaviota tarplant, Lompoc yerba santa and La Graciosa thistle.

Joan Jewett, a spokeswoman for the U.S. Fish and Wildlife Service's Pacific region, said that when Congress signed the act into law on Dec. 28, 1973, it was responding to the public's desire to see species saved from extinction. "Every species has a place in the ecosystem," Ms. Drexhage said. "Even the smallest little animal can be playing a huge role that we don't know about. It might be keeping down rodent populations."

Ms. Jewett draws an analogy to an airplane.

"There's different bolts and screws that hold it together. Maybe you can lose one here, one there. At some point, there's going to be that one pivotal part that falls off and causes the airplane to collapse."

For that reason, the act "doesn't say you should just save cute, charismatic species," Ms. Jewett added.

Take the tiger salamander, a yellow-spotted amphibian that spends most of its time underground.

It was given an emergency listing as an endangered species after most of the ponds where it was known to live in the North County were destroyed or degraded.

Since then, the salamander has been blamed for holding up work on a business park at the Santa Maria Airport, a Foodbank warehouse and an animal shelter. Bob Orach, a Santa Maria councilman, said the attempts to protect some species at any cost despite the toll on neighboring humans often exceeds common sense.

"I don't mind protecting the salamander, even not having seen one in the 28 years I've been here," he said. "But from the standpoint of the economic viability of people -- not developers or anyone else, but people -- the cost-benefit to endangered species is overshadowed by the impacts on people's lives."

And those affected aren't shy about speaking up: Some bumper stickers in the Santa Maria area read, "Salamander: the other white meat" and "Save the broccoli, eat a salamander."

Mr. Orach noted that the interpretation of critical habitat for Santa Maria salamanders ballooned from 200 yards to two miles around a breeding pond. "I believe the salamander in its wildest dreams would not go across a construction site or cross three roads to breed."

Such Draconian interpretations of the act, and not necessarily the law itself, lead to conflict.

A federal judge, meanwhile, has given Fish and Wildlife until Jan. 15 to draw up a map of critical habitat for the salamander, even as the agency attempts to downgrade the amphibian's status to threatened, not endangered.

Not every property owner's tangle with the salamander has ended badly for the humans.

One Los Alamos ranching couple, who helped protect a pond on their property that now harbors a healthy population of salamanders, were awarded a $3,800 federal grant for their trouble.

COLAB's Mr. Caldwell said his North County-based organization prefers incentive-based conservation plans rather than mandates on private property owners. As habitat decisions stand now, he said, "it has served to wreak havoc on the economy and private property rights, as we can see in this county."

Success in saving imperiled species, Ms. Drexhage noted, is "all about getting people onboard."

In Santa Barbara, she said, "we have a lot of people wiling to work with us." Evidence of that are the docents who work at plover beaches, telling visitors about the little birds and advising them to keep their dogs and themselves out of their way.

Ms. Milligan, the Lompoc plover skeptic, had been a docent, too, at Surf Beach before the prohibitions kept all people out. Despite the portions of the Endangered Species Act that her group is fighting, she's still upbeat about the law itself.

"It has merit," she said. "I think it's important that we protect our natural habitat. I just feel that the pendulum's swing to far to one side, that it needs to be more in the center."

Game of the foxes

The most intensive effort to save a local species has been devoted to the Channel Island foxes.

Efforts are under way to rid the islands of feral pigs, which root through native plants -- some of them endangered, too. The presence of the pigs also attracts golden eagles, which in turn make an easy meal of the foxes.

"There's just an incredible amount of work going on with the island fox," Ms. Drexhage said. "There's so much money and time going into that."

Captive breeding has also been credited with saving the endangered California condor. In a controversial move, all the free birds were captured by 1987, when the total population stood at 27, for a captive breeding program. The population now stands at 217. In recent years, some have been released into the wild. Unfortunately, nearly all the chicks born in the wild have died -- many of them from lead poisoning.

Bruce Palmer, the Fish and Wildlife Service's California condor recovery coordinator, told New Scientist magazine that as of last year, "we have spent $35 to 40 million on the condor, and that was a shoestring budget."

But some people regard such an effort and expense as absurd. And they say the Endangered Species Act just isn't working. If it were, they argue, more species would have been saved taken off the list.

"Of the 60 species that have been de-listed and supposedly 'recovered," writes critic Mr. Coffman, "12 were actually extinct, 30 were incorrectly listed in the first place or had data errors, 12 were recovered due to actions resulting from other laws or private efforts (not the ESA), and the balance were de-listed due to management of U.S. Wildlife Refuges. The ESA has not been responsible for recovering even a single species."

Most of the extinct species, according to Mr. Coffman, were gone before they were listed, suggesting [that] no one bothered to find out if there was even something to protect at that point.

But Ms. Jewett said "it has been very successful in keeping species from going extinct."

Seven listed species have apparently gone extinct in the past 30 years, she said, out of approximately 1,300 -- "That's really not too bad."

One of those species was the Santa Barbara song sparrow, a denizen of the Channel Island's Santa Barbara Island: Melospiza moledia graminea was removed from the list because of extinction in 1983.

Ms. Jewett said that according to a study, 192 of the listed species would have gone extinct in the past 30 years if it weren't for the provisions of the act. Thirty-seven species have been de-listed -- seven of them went extinct, 15 recovered and 15 were taken off because more populations were found.

Ms. Jewett said species can't be quickly removed from the list; years of monitoring are required.

Says Ms. Drexhage: "It's not as easy as 'Oh, they're doing well this year.' It takes a lot to be de-listed. It could be a pretty lengthy process. It's not a pie-in-the-sky process. They're pretty realistic.... There's a lot more going into it than people have taken the time to see."

http://news.newspress.com/toplocal/122803act.htm

Dixie Lee Ray regarding William Riley of the EPA (Environmental Protection Agency) Fall 1992

"There is a deliberate and quite outspoken attack on the whole idea of people owning private property. Mr. William Riley, the head of the Environmental Protection Agency, has said publicly on a number of occasions that he does not believe that people should have the right to own private property.

To use his words, 'The ownership of private property is a quaint anachronism.' He has called for a repeal of the fifth amendment as it affects the right of private property. There are two laws that have been passed by the Congress that are being used to take property away from people. One is the Endangered Species Act, and the other one happens to be the Clean Water Act." - Dixie Lee Ray, scientist, recipient of the United Nations Peace Prize and former Governor of Washington State, in an interview with the Acton Institute for the Study of Religion & Liberty, Special Edition, Fall 1992.

Full interview at: http://www.acton.org/publicat/randl/interview.php?id=52

"In 30 years of implementing the Endangered Species Act, the Service has found that the designation of critical habitat provides little additional protection to most listed species, while preventing the Service from using scarce conservation resources for activities with greater conservation benefits. In almost all cases, recovery of listed species will come through voluntary cooperative partnerships, not regulatory measures such as critical habitat." - From: Joan_Jewett@r1.fws.gov.  You can cite the U.S. Fish and Wildlife Service as the source of the critical habitat language. June 23, 2003 (On June 19, 2003, the comment to my inquiry as to the author of this quote was: "These statements were written in Interior Secretary Gale Norton's office. I do not know the exact author.")