Political influences on USFWS listing decisions under the ESA: time to rethink priorities.

• Author: Lieben, Ivan J.
• Position: U.S. Fish and Wildlife Service, Endangered Species Act

Recently I read an account of a Los Angeles "Eco-Expo" last April, where children were invited to write down their answers to the basic question: "Why save endangered species?"

One child, Gabriel, answered, "Because God gave us animals."

Travis and Gina wrote, "Because we love them."

A third answered, "Because we'll be lonely without them."

Still another wrote, "Because they're a part of our life. If we didn't have them, it would not be a complete world. The Lord put them on earth to be enjoyed, not destroyed."(2)

--Bruce Babbitt, Secretary of the Department of the Interior

[O]ne of the most amazing things to me is that the Service continues to insist that the listing process is totally apolitical. At the same House hearing at which I testified, acting Director Rogers insisted, with a straight face, that political factors have no influence whatsoever.

It seems to me that the first necessary step in any reform [of the Endangered Species Act] is at least some effort to be truthful and honest with the public. No one who closely observes the listing process believes that politics are unrelated to listing decision[s], and when the Service makes these kinds of statements, it loses any credibility with conservation groups, legislators, and judges. It would be far preferable to have an honest admission that politics has an enormous influence on the process, and then we could get onto the critical debate of whether politics should influence ESA decisionmaking; how much; and at precisely what point in the process .... (3)

--Eric Glitzenstein, ESA Attorney

1. INTRODUCTION II. BACKGROUND

   1. Endangered Species Act

   2. 1983 USFWS Priority Guidelines

   3. 1996 USFWS Priority Guidelines

   4. Past Political Influences on USFWS Listing Activities

3. WHAT'S WRONG WITH RECENT USFWS LISTING ACTIVITIES

   1. The Plight of the Imperiled Bull Trout, Canada Lynx, Barton Springs

      Salamander, and Alabama Sturgeon

   2. Mechanisms of Misapplication of the Law

      1. Poorly Defined Priority Standards in the 1983 Guidelines Allow

         the USFWS to Consider Political Factors

      2. USFWS Avoidance of Emergency Listings

      3. The FFA Settlement and Stipulation: Evidence that the USFWS

         Has Slowed the Rate of Species Listings

      4. USFWS Promulgation of the Possibly Illegal 1996 Guidelines

      5. Improper Use of the Five Statutory Listing Criteria

   3. USFWS Motive to Avoid Political Controversy IV. CONCLUSION AND RECOMMENDATIONS: HOW TO TAKE THE POLITICS OUT OF

      AGENCY LISTING DETERMINATIONS

   1. USFWS Should Recognize that Politics Influences Its Listing

      Decisions and Attempt to Limit the Impact of These Illegal

      Considerations

   2. USFWS Should Modify Its 1983 Priority Guidelines

      1. Consolidate and Define Imminence and Magnitude of Threat

      2. Ecosystem Factor

      1. Keystone Species

      2. Indicator Species

      3. Species Located in Rare or At-Risk Ecosystems

      4. Umbrella Species

   3. USFWS Should Increase Number of Emergency Listings by Defining

      Standard and Better Monitoring Candidate Species

   4. USFWS Should Not Prioritize Listing Decisions by Activity Type's

   5. USFWS Should Speed Up the Listing Rate by Requesting More Funds

      for Listing Determinations

1. INTRODUCTION

   Our planet is currently engulfed in a great extinction crisis caused by humankind's destructive handiwork.(4) Some estimates show that the planet might lose as much as fifty percent of all species within the next thirty years if humankind's relentless onslaught of the natural environment does not slow down.(5) The United States Congress has formulated a plan to slow extinction, and it is called the Endangered Species Act of 1973 (ESA).(6) Congress legislated in hopes of turning around the mass trend of extinction confronting America by protecting threatened and endangered species both at home and abroad. The ESA states that one of its main purposes is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."(7)

   The goals of the ESA direct the United States Fish and Wildlife Service (USFWS or Service) to protect and conserve the nation's biological heritage. Congress charged the Secretary of the Department of the Interior, working through the USFWS, to implement this sagacious Act.(8) The USFWS is one of the "principal conservation agencies" of the Department of the Interior(9) and a "land manager with stewardship over most of the nation's federally owned land."(10) In addition, the USFWS, through its mission statement, has pledged "to conserve, protect, and enhance fish and wildlife and their habitats for the continuing benefit of the American people."(11) I In the case of endangered species, the USFWS has been called upon to step in front of the industrial forces that threaten the well-being of imperiled species or destroy their habitat and to put a stop to these destructive mechanisms that rob the planet of its diverse biological wealth.

   Despite past efforts to act in the best interest of imperiled species, the USFWS has not been perfect in its performance. The Service has failed to extend ESA protection to deserving imperiled creatures, such as the bull trout,(12) the yellow-legged frog,(13) the Alabama sturgeon,(14) the Florida black bear,(15) the Canada lynx,(16) the Alexander Archipelago wolf,(17) the Queen Charlotte's goshawk,(18) the Barton Springs salamander,(19) and the jaguar,(20) often because of political pressure from would-be regulated parties and politicians opposed to federal regulation. However, any consideration of political or economic factors by the USFWS is in direct contradiction to Congress's explicit mandate in legislating the ESA that the USFWS is only to use the "best scientific and commercial data available" in its listing decisions.(21) Further, in 1982, Congress recognized the susceptibility of the USFWS to political influences when deciding which species to list during periods of candidate species backlog, and mandated that the Service use a "scientifically based priority system" to rank candidate species.(22) However, these congressional mandates did not end the role of politics in USFWS listing decisions.

   Politics has crept into many USFWS listing decisions. The USFWS has used a number of legal-like mechanisms to illegally consider political factors while maintaining an aura of legitimacy. Examination of some of these mechanisms of misapplication of the law, which include mechanisms and procedures in both the statutory and regulatory frameworks, illustrates how the USFWS may have considered politics in at least some of its listing decisions. First, recent lawsuits which have forced the Service to increase its listing rate demonstrate how the Service has been slow to list species.(23) Second, the USFWS has refused to emergency list highly endangered species despite a strong congressional mandate that the Service should use this provision more.(24) Third, the USFWS has hidden species indefinitely in the "warranted but precluded" category through the use of its 1983 priority guidelines (1983 Guidelines) which were created in response to the 1982 congressional amendments.(25) To maintain a species as "warranted but precluded," the USFWS need only show that there is a backlog of other higher priority candidate species and that it is making "expeditious progress" in processing this backlog.(26) Through the use of discretionary, ambiguous standards for setting this priority number, however, the Service has been able to indirectly consider political factors in establishing which species warrant protection under the 1983 Guidelines. Fourth, the seemingly ultra vires agency promulgation of new priority guidelines for 1996-1997 (1996 Guidelines)(27) prioritized listing by the type of listing activity instead of by the biological need of a species, and resulted in an illegal "self-imposed [listing] moratorium"(28) for many needy candidate species. Finally, in its most obvious demonstration of considering political factors, the USFWS has egregiously misapplied the five statutory listing criteria.(29) All of these factors strongly suggest that the Service has been misapplying certain provisions of the ESA.

   This Comment explores the existence of improper political influences in the USFWS listing decisions. Part II gives background information on the ESA, the 1983 and 1996 Guidelines, and past political influences in USFWS listing decisions. Part HI gives various examples of highly imperiled species that have been unjustly denied protection and identifies various statutory and regulatory mechanisms that the Service has recently used to improperly consider political factors. Part IV suggests ways that the USFWS can better conform its behavior to the requirements of the ESA, partly through restructuring its priority guidelines to reduce the possibility that politics will play a role in future listing decisions. One suggestion is for the USFWS to create a new "Ecosystem Factor" that gives consideration to the ecological significance of a candidate species when assigning priority numbers.

2. BACKGROUND

   1. Endangered Species Act

      In 1973, Congress enacted the Endangered Species Act (ESA) "for the conservation, protection, restoration and propagation of species of fish, wildlife, and plants facing extinction."(30) The ESA has a broad goal: to protect as many threatened or endangered species as possible.(31) In fact, ex-Representative John D. Dingell (D-Mich.), who served as chairman of the congressional committee that introduced the bill which became the ESA, stated "[i]f it were possible to avoid causing the extinction of another species, [Congress] resolved to do exactly that."(32)

      Congress put the Secretaries of the Interior and Commerce in charge of ESA implementation.(33) The Secretary of the Interior, acting through the United States Fish and Wildlife Service (USFWS or Service), oversees the overall implementation of all of the duties of the ESA regarding freshwater and land species.(34) The Secretary can list a species because of any of the following...