Endangered Species Act Is Now Looking to Save Itself : Environment: Critics say it infringes on property rights. Even its defenders admit some reform is needed.

For five generations, ever since their patriarch settled on the wind-swept grasslands of western Riverside County in 1879, the Domenigonis enjoyed sharing their expansive wheat, oat and barley ranch with a menagerie of wild creatures.

But the family’s hospitality abruptly ended with the arrival of a shy, furry rodent with long hind legs and a white underbelly. The Domenigoni clan has nothing personal against rats. But this particular species, the Stephens’ kangaroo rat, carries some worrisome baggage.

When some of the kangaroo rats, nearly wiped out by development of Southern California’s grasslands, hopped onto part of the Domenigoni ranch left fallow for a year, the family found its farm at war with the nation’s--perhaps the world’s--most ambitious conservation law.

Using their powers under the Endangered Species Act, federal wildlife officials prohibited the Domenigonis from plowing 800 fallow acres, a quarter of their land, so that the rodents could be studied. Three years later, the kangaroo rats moved on and the prohibition was lifted--costing the family about $400,000 in lost income and expenses for attorneys and biologists. Fearing their return, the Domenigonis now till every acre every year, eliminating all natural habitat for wildlife.

To many landowners--from family farmers to mega-developers to powerful timber companies--the unparalleled, far-reaching environmental law has transformed the nation’s rarest animals and plants into dreaded invaders rather than welcome cohabitants.

“We are no longer pleased to see an eagle, or a hawk, or a previously unnoticed flower on our land,” said Cindy Domenigoni, who owns the ranch with her husband. “Sights like these now cause us great concern that our livelihood and our heritage will be stripped away from us.”

Turning wild animals into pariahs certainly was not the intent of Congress or President Richard Nixon in 1973 when they created the act to protect the nation’s diversity of living treasures--every species of plant and animal--from extinction due to human endeavors.

But backlash against the law’s ability to impose restrictions on development of private land and public projects such as dams and highways has polarized opinion and fostered a high-stakes movement in Congress to reinvent the way extinctions are prevented. Some even question the value of trying to save every species.

Some Republican leaders in Congress want to dramatically scale back the federal government’s power to restrict use of private property and rely instead on mostly voluntary efforts to protect the places where endangered species live, nest and feed. How far the reform goes depends largely on the ability of moderate Republicans, Interior Secretary Bruce Babbitt and conservationists to quell the protests with ideas such as economic incentives and negotiated land-use deals that might fix the problems without a wholesale rewriting of endangered species law.

Successes and Horror Stories

The Endangered Species Act provides a safety net for animals and plants on the verge of disappearing from Earth--including an extraordinary power to block bulldozers, tractors and chain saws--but its implementation has sometimes been slow, convoluted and combative.

Despite some notable successes over 22 years, including the comeback of the American alligator and the bald eagle, hundreds of protected species remain in poor condition. Even the act’s most strident defenders say it has failed to function as well as it should.

Over 950 animals and plants in the United States have been declared endangered or threatened, including ones as adorable as kit fox pups, as powerful as the grizzly bear, as agile as peregrine falcons, as delicate as the El Segundo blue butterfly, as colorful as the Western lily and as venerable as the desert tortoise.

Although others are far less charismatic--salamanders, beetles, fish, snails, even herbs--each is a biologically unique life form that is believed to be on the verge of vanishing from the planet because of human activities.

When a creature, no matter how seemingly insignificant, hovers on the edge of extinction, biologists say that indicates that an entire landscape or ecosystem has been disrupted so severely that it can no longer sustain natural life. Wild plants also are important to save, not only because they provide food and shelter to animals, but because most modern medicines, including penicillin and cancer drugs, are derived from them, scientists say.

Nevertheless, as the nation’s list of endangered and threatened species swells, so do protests about how the Endangered Species Act puts the rights of plants and animals above the rights of people.

Horror stories--partly exaggerated, partly real--are being repeated by property rights advocates in rounds of congressional hearings, transforming loggers, home builders and farmers into poster children for Endangered Species Act reform.

“I am so tired of this legislation by anecdote. Everywhere you turn there is some poor farmer who lost their acres because there were kangaroo rats on it,” said Dennis Murphy, director of Stanford University’s Center for Conservation Biology, who recently served on a National Academy of Sciences panel that studied the act.

“Of the anecdotes that float around about the Endangered Species Act, I don’t think one story out of 10 can be substantiated.”

Yet some of the plights recounted by landowners are legitimate, said Murphy, who is working with the U.S. Senate’s environment committee on a bill to keep the act intact with moderate reforms. There have been serious flaws, he said, in the way the law has been implemented by the U.S. Fish and Wildlife Service.

One of the most infuriating examples has been the Stephens’ kangaroo rat in Riverside County, where planning of preserves has dragged on for six years, tying up property, such as the Domenigoni ranch, in study areas much longer than Murphy said is necessary.

“The problem is, in trotting out these horror stories it seems that the act itself is a problem, when it’s not,” Murphy said. “There are things that can be done outside of changing the statute grossly that can make it more readily facilitated.”

The most vocal critics of the act insist that it needs a complete overhaul to guard property rights and jobs from overzealous federal wildlife officials. They say too many species and too much of their habitat have been protected without regard to cost, impact on jobs or the species’ value to society.

“Right now a snail has as much value as a bald eagle, and that’s nuts,” said Chuck Cushman, who heads up a large Washington state-based national coalition of farmers, timber companies, ranchers, miners and other property rights advocates. “We have to make choices. It’s not possible to try to save everything.”

Cushman said more species could be saved if habitat protection became voluntary and timber companies, farmers and others were willing partners with wildlife officials.

“We have tried a top down, police state, heavy-handed mentality which has destroyed the conservation ethic in this country,” he said. “The other side has had 23 years to make their system work, and it hasn’t worked.”

A bill introduced by Sen. Slade Gorton (R-Wash.), largely crafted by timber industry lobbyists, would repeal much of the federal agency’s power to restrict land use and make listing of species a discretionary action for the secretary of Interior, rather than a mandatory one based entirely on scientific evidence.

The bill would prohibit activities such as hunting and trapping that directly harm endangered animals, but would ease restrictions on commercial use of their habitat. For example, a landowner could log trees surrounding a spotted owl’s nest, and could perhaps even cut down the nesting tree as long as the owl wasn’t there at the time.

Conservationists, though, seem to have a powerful ally in Sen. John H. Chafee, (R-R.I.), chairman of the environment committee, whose support of the law makes the more extreme proposals unlikely to pass.

In his first major comments on the issue, Chafee stressed this month that the Endangered Species Act’s fundamental goals and policies should not be weakened, although he does support changes also generally endorsed by Babbitt and many environmentalists.

Chafee said he favors reforms to streamline the process, promote innovative land-use agreements to resolve conflicts, stress ecosystems rather than single species and give incentives to property owners to conserve habitat rather than destroy it.

“I don’t buy into the shortsighted idea that the ESA debate is one of humans vs. animals,” Chafee told an audience in an Oregon timber industry town. “The Endangered Species Act doesn’t need to be cast this way.”

Chafee, taking on Gorton, House Speaker Newt Gingrich (R-Ga.) and others who say there is no need to save every animal and plant from extinction, warned that “conservation is a worthy, indeed critical, end in and of itself. It is not worthy only when the species in question provides an immediate human benefit.

“Do we care what kind of a world we leave to our children? If the answer is yes, then we need strong laws to force ourselves to take the long-term view necessary for species conservation,” Chafee said.

Fish and Wildlife Service officials defend their authority to oversee land use as vital to conserving the last remnants of forests, grasslands, wetlands and other dwindling habitats critical to survival of creatures on the verge of extinction. In a new National Academy of Sciences report, a panel of biologists called destruction of habitat the leading cause of extinctions.

In most cases, the wildlife service does not permanently halt a development or other project even when an endangered species is discovered. Of 97,000 projects or activities reviewed between 1987 and 1992, only 54 were withdrawn or terminated, according to the agency’s data.

But the federal agency frequently requires a rigorous, costly review of each project and creation of a conservation plan in which a landowner agrees to preserve some property or take other steps to mitigate the ecological damage. The process can drag on for years and cost millions of dollars--and because so little is known about most rare species’ behavior, some acreage locked up during the lengthy reviews may turn out to have little ecological importance.

Mollie Beattie, director of the Fish and Wildlife Service, acknowledges that conflicts occasionally arise because her agency does not have enough staff or scientific data to develop quick, accurate recovery plans for a multitude of species. Plans outlining the actions needed to save a species have been prepared for only 54% of listed animals and plants.

But Beattie said attempts in Congress to gut the law and slash her agency’s budget are equivalent to disconnecting the smoke alarm and letting people go back inside a burning house. She called the destruction of wildlife and their ecosystems a growing crisis that demands more attention, not less, and that her agency’s restrictions are not senseless attacks on the economy but reasonable compromises that espouse “sound stewardship” of resources.

“The truth is that our economy depends on the sustained health of our environment,” she said. “If you don’t think so, just ask any salmon fisherman in the Northwest or any waterman on the Chesapeake Bay. . . . In many places, the ecological systems upon which both wildlife and humans depend are deteriorating and even collapsing.”

New Strategies Considered

Beattie and Babbitt contend that the Clinton Administration has had much success in defusing land wars by embracing innovative negotiating strategies. Developers in Orange and San Diego counties have voluntarily teamed with scientists and local, state and federal governments to design regional sanctuaries for the California gnatcatcher, a threatened songbird, and about 100 other rare species inhabiting scrub on some of the nation’s most expensive real estate.

The unprecedented alliance--endorsed by many of Southern California’s largest developers and coordinated by Gov. Pete Wilson’s Resources Agency--is considered a national model for more peaceable solutions to saving endangered species on valuable private land. Although no preserves have yet been created and the years-long process is far from conflict-free, master conservation plans are under development in the two counties that eliminate the need for the usual project-by-project and species-by-species economic gridlock.

According to a National Academy of Sciences committee, another remedy is for federal officials, upon listing of each species, to immediately designate core areas--dubbed “survival habitat”--to be protected until permanent preserves are created. The rest of the land, with marginal value to wildlife, could then be freed.

Critics of the law say conflicts will arise as long as the federal government has the power to revoke private property rights. Instead, they say, land-use controls should be allowed only when the property owner is compensated for the lost value of land.

“By focusing the enormous power of the federal government on the supposed protection of rare species, the act has made rare species unwanted and has even encouraged some people to get rid of them,” said Richard Stroup, an economist at Montana State University and the Political Economy Research Center, a think tank in Bozeman, Mont., that encourages free-market solutions to environmental problems.

“This,” he said, “explains the paradox of the act’s enormous power and minimal results.”

Perhaps the most perverse quandary arises on fallow farmland. The Domenigonis’ decision to plow all their land annually, regardless of whether they plant on it, not only deviates from standard farm practices but leaves no native grassland at all.

“It’s frustrating that you do something for many, many years that seems to be coexisting with species and the environment, and then they put a regulation on you. It’s utterly crazy,” Cindy Domenigoni said. “In a way, they are forcing people to go out and destroy habitat because of the way they are enforcing the law.”

Stroup, who was the Interior Department’s chief economist during part of the Ronald Reagan Administration, said requiring compensation of private property owners would make the government more innovative and reduce unwarranted restrictions on land.

“Now, the Fish and Wildlife Service has no incentive at all to figure out ways to cheaply provide habitat, when they instead can in effect condemn huge acreage with the stroke of the pen, at no cost,” he said. “It doesn’t happen all that often, but when it does, it strikes the fear of God into every other landowner in the country.”

Many of the nation’s leading environmental groups endorse adding economic incentives to the act. Included are tax rebates for owners who conserve their land for endangered species and a “safe harbor” concept that would encourage farmers to keep some fields fallow.

“A legitimate problem is that the law does not explore the strategy of offering incentives to get [landowners] to do beneficial things for species,” said Michael Bean, chairman of the Environmental Defense Fund’s wildlife program and a co-author of the act.

The most ambitious idea to add economic incentives is creation of a free-market system of tradable credits that gives endangered species habitat a marketable value. Owners who conserve or restore habitat would be awarded credits that could be sold to others who need to compensate for property they want to develop.

But unlike Stroup and other property rights advocates, environmentalists insist that the federal government must keep its power to oversee land use--holding out the carrot but keeping the stick ready to strike. The government, they say, cannot afford to buy much property and most land-owners will not voluntarily manage their land to protect wildlife.

Orange and San Diego county developers and local governments formed their alliance only after federal officials were poised to list the gnatcatcher and tie up thousands of acres of valuable real estate.

“You have to bring people in compliance first, then reward them for doing the right thing,” said Murphy of Stanford University, who has played key roles in planning efforts for Southern California’s gnatcatcher habitat and the Pacific Northwest’s spotted owl. “It will always be economically more beneficial to destroy habitat than to protect it as open space.”

Domenigoni, who serves as a director of the Riverside County Farm Bureau, believes that voluntary efforts to protect wildlife would work if modeled after the federal soil conservation program, in which farmers are awarded grants and technical assistance in controlling erosion.

“If you get the true people that are working the land and you sit them down, most farmers are reasonable, common-sense type people, and you can work out these problems,” she said. “We’re environmentally minded. We want to have natural resources for our children and our children’s children to enjoy. But there has to be a balance so we can all coexist.”

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How the Act Works

More than 900 animals and plants in the United States and nearly 600 in other nations are listed as endangered or threatened under the Endangered Species Act. Of these, the federal government has devised recovery plans for 513 species. Type of species: Number listed * Flowering plants: 497 * Mammals: 335 * Birds: 275 * Fishes: 116 * Reptiles: 112 * Clams: 59 * Insects: 33 * Ferns: 28 * Snails: 23 * Amphibians: 20 * Crustaceans: 17 * Arachnids: 5 * Conifers: 4 ****

Q. What is the purpose of the Endangered Species Act?

A. The law was passed in 1973 to save all species of animals and plants from extinction as a result of human causes. It was prompted by widespread extinctions over the years, including that of the passenger pigeon and the Carolina parakeet, as well as the near-extinction of the bison and the bald eagle and other birds of prey.

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Q. What is the primary source of danger to wildlife?

A. Loss of habitat--such as the trees, rivers, wetlands, grasslands or other natural areas where a creature lives, nests or feeds.

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Q. How is a species chosen for listing?

A. Anyone can petition for protection of a species. Based on the “best available” science, the U.S. Fish and Wildlife Service (or the National Marine Fisheries Service in the case of an ocean species) determines whether listing is warranted. A species is considered endangered or threatened when it is at risk of extinction from destruction of habitat, overuse for recreational or commercial purposes, disease or predation, or inadequacy of existing regulations.

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Q. Are costs or other economic considerations included?

A. Economic factors cannot be taken into account when deciding whether to list a species, but are considered when choosing ways to help the species recover.

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Q. What happens when people want to build or conduct other activities on land that contains a listed species?

A. If the project is on private land, a landowner must get a permit and develop a habitat conservation plan that mitigates the impact on the species. These plans often take years and fewer than 200 are in development. If a project, such as a highway or dam, is overseen or funded by a federal agency, the agency must consult with the Fish and Wildlife Service and prove that the project “is not likely to jeopardize” an entire species’ survival.

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Q. How many projects have been blocked?

A. Between 1987 and 1992, the Fish and Wildlife Service conducted about 97,000 consultations on projects involving federal lands or money. Of those, 352 resulted in decisions that the project put a species in jeopardy, but only 54 projects were ultimately withdrawn or rejected.

Source: U.S. Fish and Wildlife Service, Los Angeles Times