Schiff and MacDonald: The Endangered Species Act Turns 40—Hold the Applause

The badly administered law has had a limited effect on wildlife while inflicting great social and economic costs.

By Damien Schiff And Julie MacDonald

Dec. 27, 2013 6:21 p.m. ET

Forty years ago, on Dec. 28, 1973, the Endangered Species Act became law. If you want to celebrate, you'll need to close your eyes to hard truths.

A law intended to conserve species and habitat has brought about the recovery of only a fraction—less than 2%—of the approximately 2,100 species listed as endangered or threatened since 1973. Meanwhile, the law has endangered the economic health of many communities—while creating a cottage industry of litigation that does more to enrich environmental activist groups than benefit the environment.

How did things get so turned around? Blame the bureaucrats of the Endangered Species Act. They have administered the law poorly and flouted provisions designed to promote good science and good sense.

A destructive milestone came in the late 1970s, when officials erased the practical distinction between different levels of endangered-species listings. Originally, it was only when an animal or plant was labeled "endangered"—on the verge of disappearing—that landowners were hit with heavy regulations, such as prohibitions on activities that could even indirectly "harm" or "harass" the species. But the Carter administration extended these restrictions to species that are "threatened"—in trouble but not facing extinction.

The chilling effect on property owners and economic activity has been profound. Discovering a listed species on your property is no longer cause for pride in the land's environmental richness and your chance to exercise responsible stewardship. It's a liability that is to be avoided at all costs.

Ask the people of Cedar City, in southwest Utah, where Endangered Species Act regulations have given the Utah prairie dog the run of the town since it was listed in 1973. The rabbit-size rodent is now listed as "threatened," even though there are 40,000 in the region. In most cases, residents can't take measures to control the burgeoning prairie-dog population; they can't even try to relocate the animals to federal property.

The infestation means pockmarked yards for homeowners. Farmers' crops get dug up. Prairie-dog mounds and tunnels on airport property create hazards on runways and taxiways. At one airport in the Cedar City region, hundreds of thousands of dollars have been spent to prevent damage from the prairie dogs. Shooting them in the interest of protecting human lives is out of the question.

Small business owners in Cedar City like Bruce Hughes see their plans dashed. Eighteen years ago, he bought a 3.4-acre parcel to develop. "Then the prairie dogs moved in," he notes, making it impossible for him to use the property productively. "If I killed even one, it would be a $10,000 fine and five years in federal prison. I could rob a convenience market and get off easier."

One reason the Endangered Species Act has spun out of control is that the federal agencies that decide whether to list a species—the National Oceanic and Atmospheric Administration and the U.S. Fish and Wildlife Service—no longer base decisions on what the law calls for: data. Instead, they invent squishy standards like "best professional judgment."

In eastern Colorado and southeastern Wyoming, the controversy over a rodent called the Preble's meadow jumping mouse shows how a regulatory mountain can rise from an evidentiary molehill. Federal officials listed the mouse as "threatened" in 1998, claiming that it was biologically separate from similar mice elsewhere. But they relied on a 1954 study that examined the skulls of just three Preble's mice.

This was "an extremely weak inference by today's standards," Rob Roy Ramey, then-curator at the Denver Museum of Nature and Science, said in 2004. His team's DNA research over the next three years concluded that the mouse wasn't a "distinct subspecies"—and, after seeing the new findings, the 1954 study's author agreed. But the feds won't budge, even after University of New Mexico scholars echoed Dr. Ramey's findings in the September 2013 journal Molecular Biology.

The cost of the Preble's "threatened" listing for landowners and local jurisdictions is $17 million yearly, according to estimates from the Fish and Wildlife Service. Developers have to set aside a portion of their property for Preble's habitat. Ranchers must limit weeding in irrigation canals. Infrastructure projects, from reservoirs to road-widenings, have been slowed or had their costs driven up. "It has been a wonderful tool for environmentalists to try to stop things," said Kent Holsinger, a Denver attorney who represents landowners and water providers.

Some of the most damaging Endangered Species regulations stem from federal "biological opinions" issued by U.S. Fish and Wildlife or NOAA staff. In recent years, for instance, irrigation has been dramatically reduced in the San Joaquin Valley, California's agricultural heartland, because a "biop" claimed that irrigation harmed a tiny fish, the delta smelt.

To protect the smelt, the U.S. Fish and Wildlife Service ordered severe restriction on water deliveries by government water projects. In 2009, at the height of the resulting man-made drought, hundreds of thousands of acres went fallow, and unemployment in some communities touched 40%. Eventually, federal judge Oliver Wagner found that the government had acted in bad faith in developing an "arbitrary" and "capricious" plan. Even so, farmers still receive only a fraction of their water allocation, with no consequence for the federal agency.

How to get the Endangered Species Act back on track? A couple of straightforward reforms would have a big impact, and they could be implemented by the administration through regulatory change, without the need for legislation. First, reinstate the difference between regulations for threatened and endangered species, so that discovery of the former is welcome news of an opportunity to engage in creative environmental protection but not a threat to a landowner's livelihood.

Second, require that each biological opinion and listing determination comes with a data chart that scientifically documents the threats and the consequences for the species of not being listed. Unbelievably, most of the data that were supposed to have informed past decisions are unavailable. In some cases, the information was never even gathered before a ruling was issued. In other cases it unaccountably vanished, e.g., the computer files alleged to hold it were said to be corrupted.

Shoddy listing determinations naturally result in wasted conservation resources and the issuing of misguided biological opinions that ultimately destroy jobs and undermine communities. After four decades of this, Washington would do well to update the Endangered Species Act before the public clamors for its extinction.

Mr. Schiff is a principal attorney with Pacific Legal Foundation. Ms. MacDonald is a former deputy assistant secretary for Fish and Wildlife and Parks at the U.S. Interior Department.

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