Destruction of the oyster industry: though there are an estimated five billion Eastern oysters in U.S. waters, the National Marine Fisheries Service is considering listing them "endangered.".

Oyster growers on the East Coast and the Gulf of Mexico must contend annually with high oyster mortality rates from recurring epizootics (animal-related epidemics). To reduce the recurrence and impact of epizootics, oyster growers must remove oysters from infected growing areas and let the areas lie "fallow" for one or two years so that any remaining infected oysters can die; grow the oysters in water with low salinity levels; continually monitor the infections' progression to determine the best time to harvest the oysters; and cultivate oyster strains that are resistant to diseases.

Two oyster diseases are the main challenges for oyster growers: MSX and Dermo. These two diseases are prevalent throughout most waters of the East Coast and beyond. In one region of the Eastern oyster's range, Maryland's Chesapeake Bay, the decline in oysters has been catastrophic, its harvest dropping from between two and four million bushels a year in the 1930s to 33,000 bushels a year in the early 1970s. (This drop is only partly owing to disease.)

Enter the ESA 

Into this situation, the Endangered Species Act (ESA) was introduced by a man named Wolf-Dieter Busch, who in January 2005 filed a petition to the National Marine Fisheries Services (NMFS) to place the Eastern oyster on the federally protected threatened and endangered species list. Busch's petition passed an initial NMFS perusal, and a review team was set up to monitor the Eastern oyster. The NMFS was required to tentatively decide by January 2006 whether the oyster would be "listed." Busch's intent was to get the NMFS to study the status of the oysters in Chesapeake Bay, list the Eastern oyster as "threatened," and create a cohesive restoration plan. But his petition held out the possibility of halting all harvesting of Eastern oysters nationwide. According to Oceanus, the magazine of the Woods Hole Oceanographic Institution, it could even "possibly inhibit wild oyster restoration efforts by restricting the search for disease-resistant wild oyster strains."

This dire result could happen because of the design of the Endangered Species Act: if invertebrates--like oysters--are labeled as endangered, they are considered endangered in all portions of their range. Busch wanted a "threatened" designation, which would have allowed flexibility in management on a region-by-region basis. But once a petition is filed, it's up to the NMFS to determine whether a species receives a "threatened" or "endangered" designation. Disparate groups, ranging from environmentalists to oyster farmers, were aghast at the possible listing of the oyster as endangered.

Dave Relyea, a co-owner of Frank H. Flower and Sons, New York's oldest and largest oyster farming company, told the Associated Press that, ironically, any federal "listing" of the Eastern oyster in Oyster Bay, where he leases 1,800 acres for aquaculture, would likely reduce wild oyster populations. Relyea's company cultivates oyster larvae in a hatchery. When the oyster "seedlings" are an inch-and-a-half, they are put in the bay. Many of the seedlings drift outside the harvest area, and they help repopulate the entire bay. If the oyster is listed by NMFS, oyster plantings would likely end--along with an entire industry and the jobs it represents.

The furor over the NMFS's decision to review the oyster for endangered species listing caused Busch to withdraw his petition on October 13, 2005, but the NMFS has decided to continue to review the status of the Eastern oyster anyway. The only real difference is that now the NMFS doesn't have to meet deadlines artificially imposed by ESA regulations and can take as long as is felt needed to study the problem.

Lost Livelihoods

What became endangered as a result were the livelihoods of thousands of workers. In testimony given to Congress' Committee on Resources in 2005, Robert Rheault, Ph.D., who did his college thesis on the feeding and growth of oysters and is president of the Eastcoast Shellfish Growers Association, said that the small state of Connecticut alone has a "$60-million-a-year oyster industry with 650 jobs." He claimed that any listing designation by the NMFS would endanger the entire industry because the "interstate transport of cultured oysters will become a regulatory and paperwork nightmare."

In the AP article in which he is featured, Dave Relyea seconded Rheault's conclusion that a "threatened listing" spells doom for the industry. He says that any listing would likely make many people think twice about purchasing and eating oysters, crushing the market.

Rheault also pointed out in his congressional testimony that any listing of the Eastern oyster would negatively impact wild oyster populations. This is true, he says, because much of the decline in oyster populations is directly attributable to habitat destruction, caused by such things as dredging, and oyster farmers have been rejuvenating the habitat to increase profits.

The oyster growers do not seem to be depleting oyster populations. According to Rheault, "There are currently in excess of five billion oysters in U.S. waters based solely on what goes to market each year."

But with more than five billion oysters, what justification is there for labeling the Eastern oyster as threatened or endangered? The NMFS obviously knows that the Eastern oyster is not in any present danger of disappearing, and that the two prevalent oyster diseases have been around since the 1950s and haven't eradicated the oyster.

There have been a slew of cases wherein government officials ignored scientific facts before "listing" species. A Washington Times article entitled "Owl data knowingly faulty" reported that the National Forest Service was ordered to pay the Wetsel-Oviatt lumber company $9.5 million in 2002 for canceled timber contracts because the National Forest Service had ruled that the logging would disturb spotted-owl habitat based on judgments that were "arbitrary, capricious and without rational basis." In other instances, a Forest Service employee made up information in an attempt to show that lynx were living in certain forests when they were not, and the NMFS made a critical habitat designation about West Coast salmon "without an analysis of how much habitat" was needed.

Also, it is now becoming apparent that all of the protections put in place in the 1990s to save the spotted owl in California, Washington, and Oregon, which decimated an approximate 22,000 logging jobs, were misguided and futile. Scientists have now determined that the spotted owl is disappearing in large part because of competition with the barred owl, an owl that is almost identical to the spotted owl except that it has bars, not spots, on its chest. This is a fact that, according to Eric Forsman of the U.S. Forest Service, was known since at least 1976. What makes this revelation especially damning is a comment made by Forsman on a U.S. government website: "More is known about the distribution and abundance of the northern spotted owl than about any other owl in the world, but the status of the species is still hotly debated."

Jonathan Adler, the editor of Ecology, Liberty & Property: A Free Market Environmental Reader, said on the Wall Street Journal Online that while the ESA "is terribly effective at controlling land use," it doesn't "save species." He says that the law has built-in disincentives to complying with its mandates, rather than incentives. For instance, many private landowners are logging their forests before their trees can reach "old-growth" status to avoid their lands being deemed necessary habitat for some endangered species and, therefore, being placed off-limits to logging or other human uses altogether. He also says that landowners want to be conservationists, but the ESA, when applied, takes management options out of their hands. Proof of this, he says, may be found in the success of "private efforts by groups like Ducks Unlimited to encourage conservation of waterfowl habitat on private land."

He says the ESA is "broke" and needs to be fixed. Among the remedies he recommends are changes to make the law more flexible and only applicable to federally held lands.