Legislative Efforts to Increase State Management for Imperiled Species Should Be Rejected

Author:Stephanie Kurose
Position:American University Washington College of Law Alumna, 2015, Endangered Species Policy Specialist, Center for Biological Diversity
Fall 2017
legiSlative effortS to increaSe State
management for imperileD SpecieS ShoulD
be rejecteD
By Stephanie Kurose*
The Federal Endangered Species Act (ESA or “Act”)1 is
our nation’s most successful conservation law. Its pur-
pose is to prevent the extinction of our most at-risk
plants and animals, increase their numbers, and effect their full
recovery—and eventually their removal from the endangered
list. Since its enactment in 1973, the Act has been more than
99% effective at saving species under its protection from extinc-
tion, and it has put hundreds more on the road to recovery.2 Sci-
entists estimate that at least 227 species would have likely gone
extinct without the ESA’s passage.3
Despite this success, legislative efforts by some members
of Congress to weaken the ESA have signicantly increased
recently. Since 2011, 300 attacks have been launched against
endangered species and the ESA.4 These attacks continue
despite the fact that nine out of ten Americans support the Act
and want it either strengthened or left unchanged by Congress.5
Common among these attacks are calls for increasing
state authority to manage threatened and endangered species.
The ESA is known as a “law of last resort,” in that it is only
triggered after a state’s efforts to conserve habitat and protect
species has fallen short. It is a necessary backstop that pro-
vides species with federal protections, typically after decades
of decline and after state management has proven insufcient.
Since a majority of states lack legal authority and resources to
ll the conservation role played by federal wildlife agencies,
legislation that seeks to shift back this authority to the states
could spell disaster for species.
Introduced by Sen. Dean Heller (R-Nev.), the “Endangered
Species Management Self-Determination Act” would allow
governors to take over management of species found only in one
state with no requirement that such management be equivalent
to ESA protections.6 This legislation would severely undermine
protections for as many as 1,100 species,7 including nearly 500
species in Hawaii alone and at least one species in most states
across the country. States would be able to take over manage-
ment of species perceived to conict with powerful special
interests, provide little to no protection, and the U.S. Fish and
Wildlife Service (FWS)—one of the wildlife agencies in charge
of implementing the ESA—would be powerless to intercede.
Another disturbing bill is the “State, Tribal, and Local
Species Transparency and Recovery Act,”8 which seeks to
undermine the Act’s “best available science” standard by
automatically deeming any and all information submitted
by a state, tribal, or county government as the best avail-
able science—even if that information is outdated, incorrect,
contradictory, or not supported by peer review. This legislation
is completely unnecessary because the ESA already requires
the FWS to utilize any data that is considered “best available”
in its decision-making.9
Currently, the majority of state conservation laws are
severely inadequate to achieve the ESA’s conservation and
recovery goals.10 Only eighteen states have laws that protect all
animals and plants covered by the federal ESA, with thirty-two
states providing less coverage than the federal statute.11 West
Virginia and Wyoming do not have any endangered species
laws, and seventeen states offer no protections for imperiled
plants.12 And perhaps most concerning is the fact that forty-ve
states provide very limited or no authority for species recovery
planning.13 Given that a primary goal of the federal ESA is to
recover species to the point that they no longer require the Act’s
protection, and the fact that almost every single state currently
has no authority for such recovery planning is a clear sign that
management for imperiled species should not yet be handed
back to those states.
In addition to inadequate state laws, many states do not
have, or in some instances are unwilling to provide, the fund-
ing needed to manage their threatened and endangered species.
Hawaii—a state that has over 500 listed species—will spend
only $3.5 million in 2017 on endangered species, out of the total
budget of $138 million allocated to the Department of Land and
Natural Resources.14 That averages out to less than $7,000 spent
on endangered species. By contrast, each of Hawaii’s twenty-
two game species will receive around $250,000. Funding for
Hawaii’s endangered plants and animals mostly comes from
the Federal Government via grants under Section 6 of the
Endangered Species Act.15 Thus, the state itself spends almost
none of its own funding on listed species.
Oil-producing states, like Wyoming, are often very hostile
towards the ESA because they falsely argue it is a threat to eco-
nomic development. As a result, they do not prioritize the recov-
ery of endangered species. However, a 2015 paper analyzed over
88,000 ESA consultations since 2008 and found that no projects
were stopped because of endangered species.16 Nonetheless, in
FY 2016 Wyoming allocated only $3.2 million—or 5%—of its
wildlife budget to the state’s twelve threatened and endangered
species. Out of that $3.2 million, 37% was federally-funded,
4% came from the State General Fund, 57% came from Game
* American University Washington College of Law Alumna, 2015, Endangered
Species Policy Specialist, Center for Biological Diversity
16 Sustainable Development Law & Policy
and Fish license revenues, and 1% came from nongovernmental
grants. Thus, Wyoming only spent $128,000 of its own funding
on managing its imperiled species. By contrast, the state spent
$54.8 million on its game species.17
Without signicant reforms to state wildlife conserva-
tion laws and a substantial increase in funding for imperiled
wildlife, legislation proposals to cede federal authority over
imperiled species back to the states will likely undermine
conservation and recovery efforts, lead to a greater number
of species declining, and result in fewer species recovered. If
states manage their species properly from the onset, it is highly
unlikely that the federal government would ever have to step
in. The federal ESA is only triggered once a species is at such a
critically low level that it would otherwise go extinct if not for
the federal protection. Thus, legislation that would cede federal
authority to manage threatened and endangered species back to
the states should be rejected.
Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2012).
See News Release, U.S. Fish & Wildlife Serv., NOAA Propose Actions to
Build on Successes of Endangered Species Act (May 2015), https://www.fws.
See generally D. goble, et al., the enDangereD SpecieS act at thirty:
renewing the conServation promiSe (2005).
See Legislative Attacks on the Endangered Species Act During the Trump
Administration, ctr. for biological DiverSity, http://www.biologicaldiversity.
org/campaigns/esa_attacks/trumptable.html (last updated Sept. 8, 2017).
See B. Tulchin et al., Poll Finds Overwhelming, Broad-Based Support
for the Endangered Species Act Among Voters Nationwide, tulchin reSearch
(July 6, 2015), https://www.defenders.org/publications/Defenders-of-Wildlife-
S. 935, Endangered Species Management Self-Determination Act, 115th
Congress (introduced Apr. 25, 2017); H.R. 2134, Endangered Species Manage-
ment Self-Determination Act, 115th Congress (introduced Apr. 25, 2017).
See Endangered Species Found Only Within One State (Intrastate species)
ctr. for biological DiverSity, https://www.biologicaldiversity.org/programs/
biodiversity/pdfs/Endangered_species_only_found_in_one_state.pdf (last
visited Nov. 8, 2017).
S. 735, State, Tribal, and Local Species Transparency and Recovery Act,
115th Congress (introduced Mar. 27, 2017); H.R. 1724, State, Tribal, and Local
Species Transparency and Recovery Act, 115th Congress (introduced Mar. 1,
16 U.S.C. §1533(b)(1)(A) (2012).
See generally, Alejandro E. Camacho, Conservation Limited: Assessing the
Limitations of State Laws and Resources for Endangered Species Protection,
u.c. irvine Sch. of l. ctr. for lanD, envt, & nat. reS. (CLEANR) (Aug.
2017), http://www.law.uci.edu/academics/centers/cleanr/news-pdfs/cleanr-esa-
See id. at 3.
See id. at 13.
Department of Land and Natural Resources Report, State of haw. 949
(2017), https://budget.hawaii.gov/wp-content/uploads/2015/12/23.-Department-
16 U.S.C. § 1535 (2012).
See generally Jacob W. Malcom & Ya-Wei Li, Data contradict common
perceptions about a controversial provision of the US Endangered Species Act,
112 PNAS 15844 (2015).
See Wyoming 2016 Statewide Hunting Season Forecast, wyo. game &
fiSh Dept, https://wgfd.wyo.gov/Hunting/Wyoming-Hunting-Forecast#elk
(last visited Nov. 8, 2017).