Enforcement of Species Act Pits Babbitt vs. Activists

Two recent court decisions ordering the federal government to set aside habitat for endangered animals in Orange County signal a new conflict nationwide between Interior Secretary Bruce Babbitt and environmentalists.

In court, before Congress and in policy statements, Babbitt has made it clear that he wants to get rid of the so-called critical habitat law, a key part of the Endangered Species Act.

Enacted in 1978, the law restricts development on federal lands--and those where federal funds are to be used--to aid recovery of threatened animals and plants. Babbitt and officials with the Interior Department’s Fish and Wildlife Service say it is an outdated, costly measure that duplicates other parts of endangered species law.

“Critical habitat doesn’t add a darn thing, nothing,” Babbitt said in a recent interview.

Babbitt’s stance has delighted Republicans and developers but outraged environmentalists who say the law is crucial if the Endangered Species Act is to have any meaning. Of all endangered species--from jaguars, trout and owls to butterflies, salamanders, and meadow flowers--90% are at risk because large chunks of their habitat have been destroyed, they say.

The conflict is not the first between Babbitt and environmentalists over how to protect endangered species. In the past, they have been at odds over the federal government’s approach to protecting endangered species on private land with so-called habitat conservation plans, which allow developers to build over the homes of endangered plants and animals in exchange for preserving similar habitats elsewhere.

The new debate over protections on federal land, however, is a sharper one. Environmental groups have sued Babbitt more than a dozen times to force him to designate critical habitat for 250 species. So far, judges across the country, from Louisiana to Oregon, Colorado to Hawaii, have sided with them, saying he must obey the law.

Among the rulings are two recent California decisions ordering habitat for a tiny songbird and a tidal fish, both in the path of the proposed extension of the Foothill South toll road in south Orange County and half a dozen other Southland road projects. Use of federal money on the projects brings the affected land under the terms of the critical habitat law.

Babbitt faces the threat of lawsuits on 530 more species, or half of all endangered species in the United States, environmental groups and Department of Justice officials estimate.

“At least with James Watt, you knew who the enemy was,” said Heather Weiner, a senior policy analyst with the Earth Justice Wildlife Fund in Washington, D.C. She said on this issue President Reagan and his much-maligned interior secretary actually had a superior track record, approving critical habitat for more than 50 species from 1980 through 1988--without court orders.

By contrast, a study by the Natural Resources Defense Council found that since 1994 under Babbitt, Fish and Wildlife officials have set aside critical habitat only six times, all after being ordered to do so by a judge. She points to examples like the Hawaiian sunflower, nearly wiped out in 1996 by a controlled burn on a military base that raged out of control while a court battle proceeded about setting aside the land as critical habitat. Babbitt lost, but the core population of the flower had already been incinerated.

Babbitt in turn lambastes environmentalists, saying they have a fundamental misunderstanding of a law that is flawed, expensive and drains limited dollars from the far more crucial work of placing new species on the endangered list.

“These plaintiffs are risking the extinction of species as they push these lawsuits, because they’re forcing us to devote listing resources to a meaningless exercise,” he charged. “The blood of extinction will be on the hands of the plaintiffs.”

Slash in Budget Sought

Brian Vincent of the American Lands Alliance retorted that Babbitt and Fish and Wildlife would not have to waste money on legal fees if they simply obeyed the law to begin with.

Critics also question Babbitt’s arguments about a lack of funds. For the last three years, they note, he and his staff have asked Congress to slash money for critical habitat protection.

“It has to be the only time in history that a Cabinet secretary has actually asked for less money from Congress for his program,” said Andrew Wetzler, an attorney with the Los Angeles office of the Natural Resources Defense Council who won the two recent Orange County cases. “It’s bizarre; it’s Orwellian.”

But Babbitt is emphatic that the law is backward, because it requires mapping out critical habitat on federally owned or funded land as soon as a species is listed as endangered. He says simply declaring a species endangered offers broad enough protection for the plant or animal until a full recovery plan can be developed after careful scientific study.

“The courts are forcing us to waste all of that money on the front end drawing lines on maps that have no meaning, on the basis of information we do not have, while [other] species go extinct,” he said. He declined to name particular species.

Environmentalists counter that most studies are done when a species is listed, making that the proper time to set aside land, not years down the road when it may be too late.

“What good is it to bring a patient into the emergency room if you don’t give him medicine and treatment?” asked Weiner of Earth Justice Wildlife Fund.

Some scientists fall between the two sides.

Fred Roberts, an independent Riverside-based biologist who formerly worked for Fish and Wildlife on critical habitat, said in some cases it was a waste of time and money, but for other species, it was key to their survival.

For migratory animals or small, seeded plants, he agreed with environmental groups that critical habitat is vital. If a bird has flown to South America for the winter, for instance, it still needs land up north to survive and reproduce come spring. Similarly, if only the tiny, invisible seeds of a plant are present in a dry or off-season, it is crucial that land where they are known to grow be designated anyway.

Developer groups are thrilled with Babbitt’s tough stand, as are Republicans in Congress who normally are his foes.

“I think Babbitt has been one of the most positive forces for the protection of critical habitat and endangered species in the country ever,” said Laer Pearce of Coalition for Habitat Conservation, a group of major Southern California landowners and utilities. Although critical habitat law only applies to federal lands or projects affected by federal funds, developers say it can halt publicly funded roads vital to new housing projects, for instance.

Congress Lobbied

Rebuffed repeatedly in court, Babbitt has been lobbying hard in Congress to have the law scrapped. In April, he testified before a Senate appropriations subcommittee headed by his longtime nemesis Sen. Pete Domenici (R-N.M.) that critical habitat “does not work. It does not produce good results. . . . The courts have laid out a set of case decisions here that have put us in a straitjacket.”

Sen. Ted Stevens (R-Alaska), an ardent foe of both Babbitt and the Endangered Species Act in the past, warmly congratulated Babbitt afterward. “My friend, I think that is the most enlightened statement about the Endangered Species Act that I have heard from any administration official since that act was passed, and I was here when it passed.”

Domenici, in consultation with Babbitt, tried to put a rider on a Kosovo aid bill last spring that would have eliminated critical habitat. But Sen. John Chafee (R-R.I.), who is a defender of the act, persuaded Domenici to co-author a bill with him that would provide a 10-year window for the Interior Department and Fish and Wildlife to deal with the backlog of critical habitat cases and allow them to designate it on a priority basis.

But Babbitt and Fish and Wildlife Director Jamie Rappaport Clark have both objected, saying the bill still leaves critical habitat intact.

The Domenici-Chafee bill is stalled in the Senate, and Babbitt acknowledged that it was “beyond my control” as to whether he can persuade Congress to scrap the law.

He and Rappaport Clark are now trying the regulatory route. Fish and Wildlife officials are currently requesting public comment on its regulations to “clarify the role of habitat in endangered species conservation.”

Meantime, environmentalists charge, taxpayer bills for court cases will continue to mount, and species will veer toward extinction.

Joel Reynolds, a senior attorney with the National Resources Defense Council, said he was disappointed in his old ally.

“He [Babbitt] has demonstrated a lifetime commitment to wildlife protection . . . but on this issue he has shown a disregard for the Endangered Species Act that is baffling. The law is the law.”