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AN HONEST, OBJECTIVE CRITIQUE OF THE ENDANGERED SPECIES ACT

By Nathaniel R. Dickinson

Preamble

It is recognized that man must assume the role of steward of Earth's natural resources and that the planet is in a constant state of flux. Species come and go according to the dictates of nature. It has been estimated that over 90 percent of the species that have existed are now extinct.

Background

For the major portion of the history of the United States of America the attention of those governmental agencies delegated the responsibility for the management of the public's fish and wildlife resources focused mainly on fish and wildlife species that were subjected to harvest. Credit must be given to those sportsmen and their numerous organizations who were truly concerned about the welfare of their objects of pursuit. Hunting and fishing seasons, game preserves, game lands, refuges and game management areas were established; and bag limits set; among many other achievements.

There is no question that non-game species were grossly neglected. In the mid-1960's, prior to Earth Day and the availability of non-game funds, this writer prepared a needs analysis stating that those responsible for fish and wildlife should spend enough time studying each non-game species to determine whether additional attention was warranted.

When funds did become available a short time later, there appeared to be a mad scramble to concoct projects. One had the objective of determining the status of an endangered bird. Rather presumptuous, indeed. Unfortunately, the necessary discipline did not prevail. One of the major beneficiaries was the consortium of now well-heeled environmental organizations, which has been shown to practice bad science, play on the emotions of caring people, and indulge in distortions. One of the focal points of the so-called environmental movement is the Endangered Species Act.

Attention must be directed to the Endangered Species Act, which has been proven to be a failure, that never should have been written and enacted. This is not to say that the need to protect any insecure wild animals and plants should be ignored. The review that follows attempts to identify some of the major flaws in the Act.

Endangered Species Act

This rather voluminous bill was enacted into law by the United States Congress in 1973. Since that time it has been amended eleven times, most recently in November of 2003. The intention will not be to review it in entirety, but rather to identify major points of contention.

One of the first matters that needs to be clarified is the distinction between conservation and preservation. Conservation has traditionally meant wise use. This is borne out by the multitude of agencies that were called conservation departments. The Act repeatedly implies that these terms are synonymous, and unfortunately some of the politically-correct dictionaries suggest this. Preservation, on the other hand, implies maintaining the status quo. In respect to the natural world this is impossible, since it is in a constant state of flux. Hence it can be said that all ecosystems are endangered. The implications of such are obvious.

The findings of the Act declare that various species of fish, wildlife, and plants have been rendered extinct as a consequence of economic growth and development untempered by adequate concern. This, of course, raises the question as to what is meant by extinction. Merriam-Webster defines this as no longer existing. Is this the meaning that is consistently used throughout the Act? And it states that other species have been so depleted in numbers that they are in danger of, or threatened with extinction. If these findings are consistently followed it will be an easy matter to make decisions on where to direct attention. Is the species doomed with disappearance from the planet, if nothing is done? And, these species are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation. Pray tell, what species are not?

Reference is made to conformance with the treaties and conventions of numerous foreign countries. Questions necessarily arise as to the sensibility of other countries' efforts. They, too, must be subjected to thorough review. Here again the findings raise questions as to the intended meaning of the terms "conserve" and "conservation," as if they were synonymous with preservation. Mention is made of the nation's heritage in fish, wildlife, and plants. Heritage is defined as property that descends to an heir. Certainly this is not what they mean here or with all the heritage area programs they have enacted.

A definitions section follows. The term "alternate courses of action" means all alternatives and thus is not limited to original project objectives and agency jurisdiction. This certainly opens the door for just about anything. Confusion rears its head once again with the terms "conserve," "conserving," and "conservation" meaning to use and the use of all methods and procedures necessary to bring any endangered or threatened species to the point at which measures are no longer necessary. The waters become even more murky. These procedures include scientific management such as research and census. Questions necessarily have arisen as to how adequate such has been prior to a listing.

The discussion of critical habitat also raises many questions and suggests that much more discipline is necessary. Just because a species occupies a particular habitat at one time or other, does not signify that it is critical. Much of the range of a species is quite superfluous. An astute researcher with repeated observations will sooner or later be able to identify what is critical. He will be able to predict what other geographical areas will be critical. The question must, of course, be answered why, what appears to be a comparable area, does not support the listed species. Possibly the researcher is missing something. As a seasoned observer once said, when the point is reached where the behavior of a particular species is referred to as logical rather than irrational, the manager has the upper hand. Then the statement that critical habitat may be established for listed species for which no critical habitat has heretofore been established. What in the devil does that mean? And where, if any place, is it explained how, where, and why a threatened species becomes endangered? Also, where are the criteria for making decisions as to what quantity of a particular habitat is required before a particular species can be listed? There may be a tendency to acquire more and more real estate. Caution must be exercised when dealing with those who exhibit packrat mentalities and insatiable appetites.

The Act tends to be deficient in the matter of marginal habitat. In the natural world there are infinite situations where species exist under very marginal conditions, with low population densities, extremely low reproductive rates, and obvious inability to adapt. Interestingly, even the manager attempts to promote it where it does not belong. It should be readily apparent that any species of animal or plant could then be declared endangered or threatened when loose definitions are in effect.

A definition for the term "endangered species" is offered. It means any species which is in danger of extinction throughout all or a significant portion of its range. Wait a minute, was it not concluded that extinction meant disappearance from the Planet Earth? It would be quite a job to make sense of all of this. Some qualifies as double talk.

The Act's definition of the term "species" has been a point of contention for some time, that being whether endangered or threatened should apply to subspecies. This is a sticky matter and one which taxonomists have wrestled with for years. Just what constitutes a subspecies and should they all be included? This, incidentally, was an afterthought of the originally hatched programs. Of course, consultations with individuals knowledgeable about DNA might help. A "threatened species" means any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. This might be one of those your-guess-is-as-good-as-mine scenarios. Another instance where far more discipline is sorely needed. And a repeat of the question of disappearance from Planet Earth. In reading this weighty document, one continually gets to wonder how, with the level of inventory necessary to make decisions and if indeed the listed species and subspecies were so rare and threatened, did the limited number of researchers find so many in such a short period of time. And the proliferation increases in velocity.

There follows a "determination of endangered and threatened species" discussion. The first reaction is that this is a horrendous maze and one where it may be impossible to find a way out. It must be admitted that the authors did a good job of covering all bases and creating omnipotence. They undoubtedly were aware that all species are endangered or threatened under a certain set of conditions, a given noted above.

Reviews of this type of document encourages one's mind to wander from the task at hand. Thoughts turn toward the track record of those involved with endangered species. A shining, or actually quite tarnished, example involves our national symbol, the bald eagle. The public was led to believe that this species was on the verge of extinction, despite the fact that it was very common in certain locales, such as Alaska. And then DDT was blamed for its predicted demise. Even the New York eagle expert finally admitted that eagle declines started long before DDT was ever used. Then, lo and behold, this bird has staged a remarkable comeback. Has this ever been satisfactorily explained? Then there is the notorious northern spotted owl debacle where the experts drew conclusions from a small number of birds on decidedly marginal range. This is the critter that was found nesting behind a K-Mart sign. A case in Indiana involved a farmer who was not allowed to cut any trees on his wood lot because the abundant shagbark hickories provided critical roosting habitat for the Indiana bat. This despite the fact that there were no such bats to be found in that locale. As was said, species come and species go, and even the best of the researchers often can not offer any explanations. Examples are the comeback of ravens and the extension of the range of the turkey vulture in the Northeast. Then, just why do robins, the species doomed for extinction by the notorious Rachel Carson, choose to spend winters much further north? Astute observers should not be surprised.

Under "basis for determinations" it is stated that the Secretary shall make determinations solely on the best scientific data available. This is ridiculous. Maybe the best available is decidedly poor. It should not be the best available, but rather sound, reliable data collected and analyzed by highly reputable technicians, if such can be found. It is not a matter of using one's best guess. If extinction is such an important matter, why should economic impact be taken into consideration? The sentence that follows is incomprehensible.

Primary concern of this review was the biological and scientific soundness of the federal Endangered Species Act. The sections of the Act that follow involve a detailed discussion of the timing of various activities relating to listings, petitions processes, proposed regulations, finalizing regulations, recovery plans, monitoring, land acquisition, cooperation with the states, enforcement, and the like. These matters are all beyond the scope of this review, except for any discussions of petitions and the petition process. The idea that any interested party, or group should be given the power to petition for listing of a species or subspecies defies both logic and the delegation of responsibilities. These matters should be the sole responsibility of competent, qualified, responsible, wildlife biologists. And, if the Service doesn't presently have such individuals available, they should enlist them. This does not mean that these biologists should not seek the advice of anyone who has anything worthwhile to offer. There should not be any favoritism, except for validity of information.

At this point it should be readily apparent that the Endangered Species Act of 1973 should be subjected to a major overhaul. It might be desirable to start from scratch. Greater efforts must be made to find well-educated, totally objective scientists; who have a thorough appreciation of the scientific method; to not only rewrite this Act, but also effect its implementation. Again, there is no question that truly endangered species must be given appropriate attention, but it must be done in a sensible manner. Finally, there should be no private, special interest groups directly involved in the drafting and implementation. On second thought, if logic and common sense prevail, it may be found that there were more than enough laws — federal, state, and local — on the books already to insure the necessary protection.

This discussion should not be interpreted to imply that serious attention should not be directed to species, and possibly subspecies, that are truly endangered; meaning threatened with extinction from the Planet Earth. Then it becomes a matter of making a realistic decision as to whether man is responsible or it is a result of natural causes. If it is the former, there might be remedies. If it is the latter, the task might be insurmountable.

The listing of species or subspecies as endangered or threatened is, of course, only the first chapter in the horror story. Many more pages could, and should, be devoted to narrating the incessant abuses resulting from big brothers running roughshod over people and their properties. Add to this the restrictions placed on the public's lands. The monetary cost to the taxpayer is minor, compared to the loss of rights. In a free society, how can the people's representatives allow this to happen?

Nate Dickinson March 29, 2005

Permission Given to Reprint

About the Author

Nathaniel R (Nate) Dickinson received a Bachelor of Arts Degree, with a biology major, from Amherst College in 1953 and a Masters of Science in Wildlife Management from Cornell University in 1955. After serving two years in the United States Army as a cryptographer, he accepted a position with the Maine Department of Inland Fisheries and Game. The following ten years were spent with the New York State Conservation Department. In 1971 he was appointed as one of two Deer Project Leaders for the Vermont Department of Fisheries and Wildlife. Five years later he was back in New York State and subsequently served eleven years as Big Game Unit Leader for the Department of Environmental Conservation. He is the author of numerous scientific papers and both technical and popular magazines articles. In addition, he is the author of Common Sense Wildlife Management which is widely distributed in the United States, Canada, and Mexico. Since 1994 he has been writing regularly on environmental matters for the Property Rights Foundation of America and serves on their Advisory Board.

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