Delisting to Save the Endangered Species Act?
A central argument marshalled to justify stripping federal protections from Yellowstone grizzly bears is this: the Fish and Wildlife (FWS) must demonstrate “successes” defined by delisting as many species as possible – and grizzly bears in particular – or Congress will dismantle the Endangered Species Act (ESA). Where did the story come from? What is the logic, and where is the evidence? If there is no justification, why does it hang on?
A few notes upfront: it goes without saying that the job of the ESA is to recover endangered species and save their ecosystems. If the job is accomplished, federal protections should be removed and the species delisted.
But in 1973, the Act’s authors did not know what scientists have long since pointed out: that species like the grizzly bear and wolf are “conservation reliant” (link), meaning they are especially vulnerable to extinction because they are large bodied, need vast wild habitat, are especially sensitive to human-caused mortality. And, they tend to be slow to reproduce, so low rates of killing can wipe them out. That means that such species must always be managed with a yellow light. And there are no alternative legal systems to the ESA, state or federal, that require precaution and the application of the best science in conservation practice.
A Little History
The story that grizzlies need to be delisted to save the ESA has a powerful ring to it, and long, historical taproots. It first surfaced in the mid-1990’s during the Clinton administration, when then Congressman Newt Gingrich (R-GA) developed his “Contract for America”, which targeted the ESA as one of many progressive laws Conservatives aimed to gut. The irony is that the ESA was signed into law in 1973 by President Richard Nixon, a Republican.
Against anti-ESA forces, voices for imperiled species and the Act rallied, including scientists, artists and religious leaders, and their champions in Congress won the day – that day and almost every day since.
Polls taken then and since show enormously high support nationwide for saving endangered species. Citizens believe that it is morally wrong to extirpate species from the face of the earth, and that we have a duty to conserve biodiversity and the ecosystems that species depend on.
But to defend the ESA against increasingly crazy conservatives, the Clinton administration invented this story, a kind of bargain: if you keep the Act intact, in return we will delist species. Lots of them. In particular, we will target delisting of grizzly bears that require lots of space that industry has its eyes on. In so doing, the administration sought to appease the states of Idaho, Wyoming and Montana that aimed to wrest management control from the federal government.
Later FWS matched its zeal to delist grizzly bears with wolves – both species that were wildly popular nationally but represented major symbolic affronts to conservative politicians at the federal and state levels, and were viewed as constraints to the continued exploitation of natural resources by industry.
The story has proven remarkably resilient, no matter who has occupied the White House since, Democrat or Republican. This is in part due to the fact that FWS career employees and their survival tactics tend to last beyond the vicissitudes of elections. And, since the mid-1990’s when the ESA first became target practice for conservatives, attacking the ESA has become something of a congressional sport. These assaults further stoked the narrative of the need to delist more species as a way to make attacks “go away.”
So what is the delisting scorecard, and what is the response in Congress?
Have Delistings Improved Political Support for the ESA?
According to FWS data, 34 species have been deemed recovered and delisted under the ESA. This includes the bald eagle and peregrine falcon, whose numbers had crashed due to the devastating impacts of DDT, which softened the birds’ eggs. Once DDT was banned, the birds recovered rather quickly.
What is critical, though, is that these high-profile delistings, and delistings generally, did NOT buy any support for the ESA among opponents, no matter how often these examples were touted by FWS and ESA supporters.
Also included in this number is a controversial decision by FWS in 2011 to strip protections from wolves in the Northern Rockies – a decision that subjected the population to an aggressive state-sponsored hunt, which in turn dramatically reduced numbers and allowed popular and valuable research wolves to be gunned down on the border of Yellowstone National Park – a tragic policy that continues. It is important to note that the Northern Rockies wolf is the first species to be delisted by Congress, and that a Democrat, Senator Jon Tester of Montana, led the charge.
But the point is that wolf delisting, billed prominently by FWS as a measure needed to “save the ESA,” did nothing to build tolerance for the ESA.
The Delisting Story on Steroids, and the Ashe-Mead Connection
The pace of species delistings has escalated during the Obama administration. A driving force is the mantra of FWS Director Dan Ashe: species need to be delisted to save the ESA. To FWS, wolves and grizzly bears represent the brass rings of success.
The agency’s primary audience are not moderates in Congress, or decisionmakers who might be swayed, but rabid Conservatives who cannot. In the grizzly bear delisting context, the main target is Wyoming Governor Matt Mead (R-WY). He is chairman of the Western Governors Association, and now chairs a WGA committee which just unveiled a proposal that would gut the Act by vesting even more authority in the states (link) – all under the guise of “improvements” and “increased efficiencies.”
Within weeks of FWS’ announcement of its proposal to delist Yellowstone grizzly bears, Mead held a mock hearing on the ESA in Cody, the most anti-ESA, anti-carnivore town in the Greater Yellowstone in November, 2015 (link). He featured grizzly bear management as a classic example of why the ESA needed to be “reformed” and more authority given to states, county governments, and industry.
This is just one of many examples showing that FWS’ strategy of appeasing the states by delisting species does not work. Conservatives bent on dismantling the ESA are going to pursue their agenda anyway. What matters is that their constituents are narrow, intolerant, and anti-carnivore. More on this later.
To further explain what devolution of authority for grizzly bear management in Wyoming means, 4 counties representing about 20% of occupied grizzly bear habitat in the GYE have passed laws prohibiting grizzly bears in the counties, calling the grizzly an “unacceptable species.” Neither the state of Wyoming nor FWS have done anything to object to or demand a change in these laws.
Further, unlike Montana, in its recently approved plan, Wyoming set off limits to bears biologically suitably habitat, including the Wyoming, Salt River and parts of the Wind River Ranges, arguing they were “socially unacceptable.” Translate: a few sheepmen do not want bears. After delisting, Wyoming has made it clear that it will use hunting and aggressive killing policies to reduce numbers and perhaps eliminate grizzly bears at the behest of ranchers in some areas.
Mead endorses these policies while NOT supporting the ESA in anything like its present form.
Repeating A Story Makes It True
Meanwhile, FWS Director Dan Ashe is eating everything Matt Mead is dishing out. Indeed today, they seem joined at the hip. In March they even co-wrote an oped in the Jackson Hole News and Guide saying, basically: “we should all sing Kumbaya and delist grizzlies.” (link).
Huh? The relationship makes no sense. Ashe is not getting anything for his pains. I have suggested previously that the relationship between FWS and the states is perhaps like zombie and sorcerer, with FWS obeying its perceived master, rather than the broader public whose interest the agency is entrusted to uphold. (link).
Maybe FWS leaders have told themselves the story “delist grizzly bears, everything will be ok with the ESA, conservative politicians will come around,” so often, for so long, they believe it, despite the lack of evidence supporting it.
It is worth noting that Chris Serhveen, the recently retired Grizzly Bear Recovery Coordinator, had occupied that position since 1979 and was particularly fond of saying that grizzly bears needed to be delisted so save the ESA.
Servheen also bragged that he was single biggest reason for the bruin’s recovery. The facts don’t bear that one out either. The evidence shows that the prohibition against hunting and killing, citizen-driven law suits under the ESA to protect habitat, and a series of good food years for grizzly bears during the late 1980’s to early 2000’s had more to do with recovery than anything FWS did on its own (link). (By the way, Mead’s proposed ESA reforms would make citizen-driven litigation more difficult).
Another Unjustified Story: Delisting to Free Up Money for Other Imperiled Species
You sometimes hear that delisting grizzly bears will free up funds for other imperiled grizzly bears and recovery efforts. One population that desperately needs help is in the Cabinet Yaak, in the remote wilderness of northwest Montana. With 40-50 grizzly bears in an isolated population threatened by unsustainable poaching and two proposed hard rock mines, the situation for these bears is dire. For long term recovery, bears also must be reintroduced in the vast Selway Salmon ecosystem of Central Idaho. Putting money into these efforts would be a really good idea.
But even if bears were delisted, the money saved would likely not go to these bears. Why? Because FWS has so abused its mandate (largely trying to satisfy opponents) that its work nowadays is largely driven by Court orders from cases brought mostly by environmentalists. Funding saved on Yellowstone bears would most likely go to the next court-ordered item on the list.
Also, the enemies of the ESA – the very people FWS is trying to appease – continue to try, with some success, to cripple the agency by cutting funding, making lawsuits even more likely and continuing the vicious cycle.
“It’s not so much what you don’t know, it’s what you do know that ain’t so”
Will Rogers had it right when it comes to FWS. Bringing around the right wing anti-ESA ideologues to support the ESA just ain’t gonna happen. They don’t care about facts, the number of delistings, let alone the fate of species. They want to dismantle government. In their version of the nine circles of Hell, the ESA would be down at very bottom, in the flames with Satan.
Polls don’t work with ideologues either. The most recent one, done by Earthjustice and Defenders in 2015, shows that 90% of American citizens strongly support the ESA (link).
The only sure fire way to cope with ideologues is in the voting booth.
But FWS also has a better path it can take.
There is a Better Way
FWS does not have to repeat a flawed narrative that features the number of delistings it has overseen and that merely leads to more controversy and litigation. There are better metrics of success, rooted in the Act, science, and in the evidence of positive agency accomplishments.
FWS could focus on how much better species are doing under federal protection, and practical programs that involve working with the states and communities. There are plenty of good examples, including with grizzly bears. The fact is that 40 years of ESA protections have resulted in more bears. Yellowstone Park cleaned up its act regarding garbage management, and bears rarely are killed there (link), despite record-breaking visitation.
On the Targhee Forest, which had been excessively clearcut and roaded, the Forest Service has restored habitat, including closure of hundreds of miles of roads. Grizzly bears have responded by recolonizing habitat west of Yellowstone Park. In communities such as Cooke City, Big Sky, and in the Madison Valley, co-existence programs and tolerance for bears have greatly improved.
In other words, there is much to rejoice, and no need to measure success against delisting.
FWS could also emphasize the need for a precautionary approach, another principle built into the ESA. It need not duck the fact that as a conservation reliant species, grizzly bears are threatened more than ever by climate change, human development and excessive killing. FWS can build a recovery program based on reality, science and caution, while celebrating the hard fought progress made so far.
At the national level, the agency can appeal to its real friends in Congress and the conservation community, rather than alienating them. FWS should not forget how much support the Act has: the majority of Americans would shield the agency from extremists like Mead if they knew what they were up to.
FWS can learn from mistakes that have gotten it into trouble repeatedly with the courts, and return to the intent of the Act. The majority of FWS staff, who have been increasingly disturbed by the political direction of its leadership (see this survey by the Union of Concerned Scientists), would breathe a sigh of relief. So would the broader public who share the moral conviction that we need to protect vulnerable species. So too would grizzly bears if they had a say in the matter.