What outrages me about the Endangered Species Act.

I. INTRODUCTION

The administration of the Endangered Species Act (ESA)(1) exemplifies governmental arrogance and abuse and special interest influence that should not be tolerated. This abuse creates a situation where people's natural tendency to protect plant and animal species is pitted against their desire to protect their private property rights and jobs from governmental interference.

The protection of plant and animal species is important. Indeed, people abhor the very idea of species extinction. Concepts such as biodiversity and the need to preserve species for purposes associated with humankind's ultimate survival, whether it be for the extraction of vaccines to preserve life or otherwise derive knowledge which would be lost with species extinction, have created a certain impetus toward wildlife protection. The ESA represents an outgrowth of these motives. In the abstract, it is hard to understand how anyone could object to preservation of species, the avoidance of species extinction, and the insurance of biodiversity.

The problem, of course, is that species protection in many cases conflicts with some kinds of human development activity. Indeed, human development is, in all likelihood, the root cause of species extinction. The most significant cause for extinction is not direct human predation, but rather the incidental impact associated with deprivation of habitat critical to the survival of many plant and animal species. In other words, the inherent conflict between human development activities and habitat needs of species has resulted in species endangerment. As a consequence, it is not surprising that attacks upon the ESA generally do not derive from restrictions on direct human actions, such as hunting, but rather on indirect human actions associated with resource development or land use. This inherent conflict does not change the underlying reason for species protection. However, understanding the root cause of the conflict can go a long way toward reducing friction.

In seeking solutions to the conflict between development interests and interests in protecting species, the ESA can be examined in two ways. The first is to focus on the substantive protections afforded by the ESA--namely, sanctions imposed by the Act. The second way to look at the ESA is to focus on the procedures that one is forced to endure, assuming that one's activities require review under the ESA.

II. SUBSTANTIVE PROVISIONS OF THE ESA

The major substantive provisions of the ESA include the duties resulting from listing, takings prohibitions, and critical habitat designation. The listing of a species imposes certain duties on federal agencies and applicants for federal permits. For example, agencies and permit applicants must consult with the Secretary of the Interior or the Secretary of Commerce, depending upon the type of species involved, if there is even a remote chance that an endangered or threatened species is involved in a project.(2) Listing also results in absolute prohibitions or limitations on certain actions which would adversely affect a listed species.(3)

The ESA contains both criminal and civil penalties for the taking of a listed species.(4) "Taking" is defined broadly to include harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct.(5) The civil sanctions of the Act may apply to unintentional takings and actions that take place wholly on private lands.(6) Congress intended that sanctions be drastic in order to deter conduct contributing to the decline of species bordering on extinction.(7)

Concurrent with the listing of a species, the Secretary of the Interior must designate critical habitat.(8) While a critical habitat determination may be modified because of adverse economic impact,(9) a taking can include destruction or modification of habitat needed by a listed species.(10) Consequently, even though the Secretary, for economic reasons, may not formally designate critical habitat, actions which constitute a taking may still be prohibited.

III. PROCEDURAL PITFALLS IN IMPLEMENTING THE ESA

A. Flaws In The Listing Process

Given the significant impact of the ESA's substantive provisions, the Act should provide for a cautious approach to species listing. Indeed, most of the significant problems associated with the ESA could be eliminated or at least minimized if implementation of the Act were undertaken in a more judicious manner. The best way to illustrate this point is undoubtedly through example. I am most familiar with the listing process of the winter run salmon (Oncorhynchus tshawytscha)(11) and the ongoing listing process of the delta smelt (Spirinchus thaleichthys)(12) in California, as well as the significant impact that these listings have had and will have on the continued operations of crucial water conveyance facilities in the Sacramento-San Joaquin Delta.

In examining ESA implementation problems, it is useful to reveal certain fundamental myths with respect to the listing of species, debunk them from the beginning, and propose solutions to the listing-related implementation problems of the ESA. First, it is not true that environmental organizations or individuals who petition for listing are scientifically pure and motivated by only the most altruistic concerns. Groups and individuals who petition to list a species often do not have any interest in the species itself, but rather, seek to erect the ESA's substantive prohibitions to serve the group's or individual's own goals. For example, many special interest environmental groups, for reasons independent of any concern for a specific species, seek to control or eliminate resource development and land use activities. Local decisionmakers do not always share these environmental views, but unfortunately, many federal wildlife officials do. In light of the substantive provisions of the ESA, listing provides a powerful means by which resource and land use decisions can be controlled or eliminated. Therefore, it is not surprising to find that many proponents of the northern spotted owl in the Pacific Northwest are also long-time opponents of certain timber policies and that delta smelt and winter run salmon advocates are long-time opponents of irrigated agriculture. As a result of these opponents using the ESA, both timber and irrigated agriculture activities have been impaired significantly by the restrictions imposed with the listing of these species.

Because of the ulterior motives influencing listing decisions, scientific evidence that supports the listing petition is suspect from the beginning. The listing petition, therefore, must be scrutinized carefully and independently by the agency that is in charge of the listing decision. This, unfortunately, leads one to the second myth: the notion that staff personnel within the Fish and Wildlife Service or other relevant agencies are unbiased in their review of listing petitions. This is not necessarily the case. In too many situations, low-level agency personnel charged with review and early decisionmaking responsibility in the listing process often belong to or have affiliations with the very entity that has petitioned for the species listing. Moreover, these individuals, frustrated after years of being ignored on issues of resource development, see the ESA as a mechanism enabling them to become players in resource development or land use decisions. As a consequence, little, if any, scientific scrutiny goes into reviewing listing petitions. Too much staff work is undertaken to support rather than scrutinize the proposed listing. While the ESA itself does not sanction this type of abuse, no procedures exist to safeguard against it.

Instances of this type of abuse by low-level agency personnel occur often. For example, a chapter of the American Fisheries Society petitioned to list the winter run salmon in 1985.(13) Most, if not all, of the individuals within the relevant federal agency involved in the listing decision, however, were members of that chapter. As another example, the Fish and Wildlife Service selected an individual to head up the species recovery team for the delta smelt. This selection occurred in spite of the fact that the same individual had petitioned for listing the delta smelt and had long been an opponent of water development projects and irrigated agriculture, both of which have now come under Fish and Wildlife Service control as a consequence of listing. These examples illustrate the outrageous abuses occurring within the listing process--abuses that should not be tolerated.

One would have hoped that higher level decisionmakers within the Department of the Interior would have exercised restraint and undertaken scientifically-approved methodologies in their review of the evidence presented in these two listing petitions. However, the politicization of the listing process discourages appointed or elected officials from involving themselves in the listing process. Consequently, normal governmental checks do not exist which, in turn, leaves low-level agency personnel virtually in charge of listing decisions.

B. Solutions To The Listing Process

Solutions exist for remedying abuses within the listing process without undercutting the substantive protections afforded by the ESA. First, there should be included within the listing process a simple peer review requirement. In other words, the same type of scientific scrutiny which is required for publication of scientific papers in professional journals should be applied to the listing petition and listing decision. Members of the peer review team should have no affiliation or involvement with individuals or entities who have petitioned for the listing.

Opponents of this proposal argue that peer review would slow down the listing process, thereby unnecessarily jeopardizing species which otherwise would be listed more quickly. The record does not support their objection. Listings even without peer review take a great deal of time. There is no reason why peer review cannot be undertaken within the same time frame as the current listing process. Indeed, utilizing a structured peer review process may actually aid in the speedy review of petitions, although it may also result in fewer actual listings.

Second, the notion that a listing need only be supported by "the best scientific and commercial data available" should be dispensed with.(14) This is an absurd standard. In reality, this means that decisions may be made upon best available data regardless of quality. This could not possibly be what Congress had in mind when it enacted the ESA. Indeed, it could not be what any rational human being would ever have in mind in light of the significant consequences of listings. The best available data requirement must be amended to include a qualitative component. Bad data, regardless of whether it is the only data available, must be rejected.

Third, the ESA should be amended to require a separate economic impact statement. The listing process often falls victim to a fundamentally flawed proposition that the process should be economically neutral. In other words, the listing decision carried on by scientists should not be tainted by economic considerations.(15) This mentality ignores the real world; every listing decision has economic consequences. While scientists should not be swayed by economic considerations in their evaluation, somebody should be concerned with the economic consequences of listing.

Although many measures have been proposed for incorporating economic analysis into the listing process, the best proposal is implementation of an economic impact review process similar to the environmental review process under the National Environmental Policy Act (NEPA).(16) NEPA provides that federal actions which might have a significant adverse impact on the environment must undergo an environmental review through the preparation of an environmental impact statement.(17) The environmental review process itself does not control decisiomaking, but rather is one of the information gathering tools available to decisionmakers in making a final decision.(18) Additionally, a full environmental review informs the public of potential environmental impacts of a proposed federal action.(19)

Similarly, an economic impact report would not have any substantive impact upon a listing. Rather, it could be utilized by decisionmakers to assist them in better dealing with economic impacts of listing. Moreover, public involvement which would result from the review process and potential political outcry with respect to the economic dislocation associated with a proposed listing may cause Congress to act where otherwise it would not. The time to understand the economic impacts of a listing and to make appropriate decisions is during the listing process and not, as with the northern spotted owl, years after the decision is already in place.(20)

Additionally, the economic impact report should be undertaken by an agency of the federal government knowledgeable in fiscal matters and separate from the Department of the Interior. In this way, economic debate can focus on substance rather than degenerating into an argument between Fish and Wildlife Service personnel and development interests over whose economic analysis is better.

Fourth, and finally, because of the significant substantive constraints associated with listing, the listing decision itself must be held to a high standard. Congress should adopt a standard which would require the Secretary to list a species based only upon clear and convincing evidence that listing is necessary. Opponents of this standard, of course, argue that this would limit significantly the number of species that could be listed. That may be true, but that is not the question. The question is twofold: Should the species at issue be listed, and what degree of certainty should be required to support that listing? In light of the significant consequences of listing,(21) and in light of the standard that is required for delisting,(22) the clear and convincing evidence standard is not only appropriate, it should be adopted by the courts without specific direction by Congress.

C. Problems And Solutions With The Permitting Process

Implementation issues which lie beyond listing are as important as those associated with the listing itself. Once a species is listed, the next task is coping with necessary restrictions. This involves the so-called "permitting process." The ESA deals with permitting in a strange way. For example, a federal agency may obtain an incidental takings permit during its consultation with the Secretary; this provides a more or less streamlined procedure for the permitting of federally-sponsored activities.(23) Conversely, a much more cumbersome process is utilized for federal permit applicants. For instance, federal permit applicants may be required to complete a habitat conservation plan in order to receive an incidental takings permit with respect to the permitting of purely private activities.(24)

I believe this to be an anti-constitutional provision. In believing so, I have in mind the founding fathers' fundamental reason for drafting the Bill of Rights which was to protect citizens from the federal government-fundamental in the respect that among protected individual rights are property rights. While it has been argued that certain governmental actions under the ESA are takings of property as opposed to legitimate regulatory actions,(25) these discussions ignore a much simpler question: Why should the federal government have a process available for its activities that is not afforded to individuals and entities with purely private needs? It should not. The ESA should be modified to provide private individuals and entities the same kind of consultation and permitting process enjoyed by federal agencies.

Implementation would also be less contentious if the ESA allowed the project proponent, not staff biologists within the Fish and Wildlife Service, to define the project being permitted. How a project is defined frequently has significant consequences. For example, the Contra Costa Water District recently completed an ESA review of its proposed Los Vaqueros Project,(26) an off-stream reservoir project designed to enhance water quality within the district and to provide emergency water supplies.

The district's base water supply is obtained from the Bureau of Reclamation, and nothing about the project would increase the amount of water that the district would receive from the Bureau of Reclamation or elsewhere. The project defined by the district required ESA review because of the need to divert water from a location in the delta that might affect the delta smelt. Development of the reservoir site and road relocation also implicated the ESA.

In spite of this fairly limited involvement, the Fish and Wildlife Service, under the guise of the ESA, attempted to redefine the project as a water development project which would increase the quantity of water available to the district. This, in turn, argued the Fish and Wildlife Service, would induce growth within the district's service area. As a consequence, the Fish and Wildlife Service asserted that its control under the ESA should extend to all land use decisions within the district's service area because of the potential impact on certain listed terrestrial species.

Resolution of the dispute took over a year, delaying the much needed water project. In the end, the district had to concede much more to the whims of the Fish and Wildlife Service than is required under the ESA. This type of procedural abuse could be avoided if Congress would clearly state that it is not the job of the Fish and Wildlife Service to redefine projects.

D. Problems And Solutions With Managing Species

Beyond listing and permitting problems, more focus must be placed upon the actual management of listed species. It is ironic that once a species is listed, very little, if anything, is done that might be considered proactive. The Fish and Wildlife Service has a difficult time keeping up with the listing process itself and, in most cases, finds it almost impossible to develop extensive management and recovery plans(27) that should be the cornerstone of the ESA. Consequently, marginal protections afforded by the ESA are implemented through reactive crisis management. This makes no sense. It does little good to list a species without some thought about what to do next. Proceeding in this manner results in further conflict as more and more species are listed.

This problem could be minimized if the Fish and Wildlife Service listed species more cautiously. Not only does the current liberal listing policy create conflict with human activity, but it also creates conflict between species which must compete for limited resources available for management and recovery. Those resources should be utilized to manage and recover truly endangered species.

Congress also should appropriate more funds for the management and recovery aspects of the ESA. Not only would this reduce conflicts with human actions by recovering species, but it would also fulfill the fundamental purpose of the legislation. If Congress cannot or will not provide additional funding, then it should limit the number of listed species to a number that can be managed with available funds. In light of the substantive sanctions associated with listing, it is simply irresponsible to continue to list species without any thought of the human consequences and without providing adequate tools to manage and recover species already listed.

Management of endangered species under the ESA must also be modified in the way that it focuses on individual species protection.(28) Individual species protection ignores larger ecosystem needs and, thus, creates potential for future crisis. The Sacramento-San Joaquin Delta is a prime example of this problem.(29) Currently, two species which utilize the delta have been or will be listed: the winter run salmon(30) and the delta smelt.(31) The winter run salmon is an anadromous species which only passes through the delta, while the delta smelt is resident to the delta. Their habitat needs are not the same. Compounding this problem is the fact that other species inhabit the delta whose needs are different from either the smelt or the salmon. To further exacerbate the problem, the delta is the central point for distribution of most of the water used in California. This distribution of water has a direct effect upon the delta ecosystem.

Currently the ESA provides little flexibility in managing the delta. The Act requires that the delta be managed to benefit listed species; general ecosystem concerns are secondary.(32) This, of course, focuses too much attention on listed species and not enough attention on the total health of the delta. This also requires operating water projects to benefit a limited number of species while putting other species at risk. The end result is that rather than managing the environment to facilitate species recovery, continued degradation of the whole occurs because of the narrow focus. Moreover, essential water project operations are held hostage to the mindless process.

The ESA must be modified to allow for application of common sense to these types of management decisions. Habitat should be managed to preserve and protect the broadest diversity of life. So long as project operations occur within the context of this larger ecosystem management scheme, they should not be penalized if they harm an individual species. This type of process exists in California and, to a degree, has been embraced by the Department of the Interior in its management of gnatcatcher habitat in Southern California.(33)

IV. PROBLEMS WITH STANDING UNDER THE ESA

In addition to the implementation problems that undermine the ESA, standing under the ESA also creates conflict because environmental groups have better standing to adjudicate ESA issues than do development interests. For instance, if a developer were to bring suit against the Department of the Interior for a listing decision, environmental groups would be allowed to intervene in that litigation. Conversely, when environmental groups bring litigation over a listing decision, courts routinely deny development interests the right to intervene.(34) Courts generally hold that a private party must have an interest in the species other than an economic interest. The significance of this inability to intervene in litigation is obvious when one considers that countless litigation settlement deals are cut in the form of consent decrees between environmental groups and the government. These settlements are usually negotiated behind closed doors and, as a consequence, there is no public scrutiny of important listing decisions. This type of closed government should not be tolerated, and the ESA should be amended to allow affected economic interests the ability to intervene in litigation initiated by environmental groups as a matter of right.

V. CONCLUSION

Failure to address these concerns ultimately will result in some kind of backlash. Unfortunately, the backlash will be focused on the substantive provisions of the ESA as opposed to the implementation problems which are at the heart of the conflict. The proponents of the ESA, for now, clearly have a lockhold on how Congress proceeds with reauthorization. Historically those individuals have refused to bring the ESA up for reauthorization when there was any degree of controversy over the Act. In this regard, they have simply out-waited opponents of the ESA until such time as that opposition has either died away, quite literally, or has been dealt with in some other manner. Ignoring the problem, however, does not address or cure the real defects in the process. Ultimately they will have to be resolved.

It is simply irresponsible to continue to ignore these problems and to put them off until some indefinite time in the future when the opposition to the ESA can no longer be controlled. Congress ought to act diligently to address and to remedy these egregious implementation problems. Only in that way will true protection be ensured for endangered species while, at the same time, accommodating human needs. (1.) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1988 & Supp. IV 1992). (2.) Id. [sections] 1536(a). (3.) Id. [sections] 1538. (4.) Id. [sections] 1540. (5.) Endangered Species Act of 1973 [sections] 3(19), 16 U.S.C. [sections] 1532(19) (1988). (6.) See id. [sections] 1540(a). (7.) See id, [sections] 1540; see also Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) ("The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost."). (8.) 16 U.S.C. [sections] 1533(a)(3). (9.) Endangered Species Act of 1973 [sections] 4(b)(2), 16 U.S.C. [sections] 1533(b)(2) (1988). (10.) 50 C.F.R. [sections] 17.3 (1992). (11.) Id. [sections] 17.11 (1992). (12.) Notice of Petition Finding, 58 Fed. Reg. 36,184 (1993). The Fish and Wildlife Service has found that the listing petition presents substantial information indicating that listing of the delta smelt may be warranted and has initiated a status review of the species. Id. (13.) Notice of Determination, 52 Fed. Reg. 6041 (1987). (14.) 16 U.S.C. [sections] 1533(b)(1)(A). (15.) Id.; see also Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 480 (W.D. Wash. 1988) (holding that listing decision must be based on biological risks, excluding all other factors). (16.) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 43214370d (1988 & Supp. IV 1992). (17.) Id. [sections] 4332(2)(C). (18.) See Andrus v. Sierra Club, 442 U.S. 347, 350 (1979) (finding that the EIS requirement ensures that environmental concerns are integrated into agency decisionmaking). (19.) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). (20.) See Northern Spotted Owl v. Lujan, 758 F. Supp. 621, 623 (W.D. Wash. 1991) (noting that the owl was listed in June 1990, but designation of critical habitat including economic considerations was not completed until 1991). (21.) See supra text accompanying notes 3-4. (22.) Endangered Species Act of 1973 [sections] 4(c)(2)(13), 16 U.S.C. [sections] 1533(c)(2)(B) (1988). (23.) See id. [sections] 1536(a)-(c). (24.) See id. [sections] 1539(a). (25.) See generally Virginia S. Albrecht & Paul E. Hagen, Regulatory Takings Issues in the Context of Federal Environmental/Land Use Regulation, 445 Prac. L. Inst. 951 (1992); A Colloquium on Lucas, 23 Envtl. L. 869 (1993). (26.) Bureau of Reclamation, U.S. Dep'y of Interior, No. 91063072, STAGE 2 Environmental Impact Report/Environmental Impact Statement for the Los Vaqueros Project 20-1 (1993). (27.) See 16 U.S.C. [sections] 1533(f). (28.) See Endangered Species Act of 1973 [subsections] 4(f), 9(a), 16 U.S.C. [subsections] 1533(f), 1538(a) (1988). (29.) See United States v. State Water Resources Control Bd., 227 Cal. Rptr. 161 (1986). (30.) See supra note 11 and accompanying text. (31.) See supra note 12 and accompanying text. (32.) See 16 U.S.C. [sections] 1533(f). (33). See Marla Cone, Gnatcatcher Declared a Threatened Species, Los Angeles Times, Mar. 26, 1993, at Al. Upon listing the gnatcatcher as threatened, the Department of Interior proposed a plan that would lessen the burden on developers. Id. The plan allows landowners to join a voluntary state conservation program that sets aside large habitat preserves, rather than adhere to stringent ESA procedures. Id. (34.) See Portland Audubon Soc'y v. Hodel, 866 F.2d 302, 309 (9th Cir.) (developer could not intervene in action brought by environmental groups against Bureau of Land Management for the sale of old-growth timber), cert. denied, 492 U.S. 911 (1989).

Stuart L. Somarch Mr. Somach is an attorney-shareholder with the Sacramento law firm of De Cuir & Somach. He has taught water rights courses and is an adjunct professor at the University of the Pacific McGeorge School of Law.