Bush Seeks Greater Control Over Endangered Species List

In a move that critics say would undermine a landmark environmental law, the Bush administration is quietly trying to wrest from the courts control over the listing of endangered species and the designation of protected habitat for them.

The proposal, buried in the voluminous budget President Bush sent to Congress on Monday, would give Interior Secretary Gale A. Norton wide authority to decide which plants and animals should be protected under the 1973 Endangered Species Act.

Administration officials describe the proposal as an effort to break a logjam that has hindered the law’s effectiveness. But environmentalists warned that the proposed action would gut the part of the law that has proved most effective at gaining protection for animals and plants on the verge of extinction.

If the proposal is approved by Congress, Norton would have the power to waive a provision that enables environmental groups and others to sue her department to get rare plants and animals listed and their critical habitats designated.

For three decades, the act has been the primary vehicle for safeguarding threatened animals and plants. But the powerful environmental tool has repeatedly stirred up fierce controversies, especially when developers, politicians, loggers and other industries are stymied by its implementation.

Many of the species that have been protected by the act, such as the northern spotted owl, won that designation only after environmentalists sued for it in court. More than 90% of the species listed as endangered or threatened in California over the last nine years gained that protection as the result of a citizen petition, court action or both, according to statistics compiled by an environmental group.

Agency Is Seen Swamped by Suits

But the administration complains that the proliferation of lawsuits is hampering its efforts to protect plants and animals.

Most of the pending lawsuits call on the agency to designate critical habitats, areas set aside to ensure that the threatened species recover. Thirty-six lawsuits are pending that seek habitat designations for 354 species, and the Interior Department has received notices of intent to sue on 34 additional cases, according to Stephanie Hanna, a department spokeswoman.

The department’s resources are so taxed by these legal efforts and by implementing court orders that the agency cannot take care of its own priority cases, she said.

Department officials compared the situation to a hospital emergency room where triage is performed by a judge rather than a doctor and too often broken arms get treated before heart attacks.

“We want to move our resources away from paying attorneys and into recovering threatened and endangered species,” said Mark Pfifle, Norton’s spokesman.

Past Government Help Said Lacking

The government’s list of endangered and threatened species numbers 1,243 plants and animals. The department has 250 candidates for listing but no funds or staff available to do the work. Previous administrations have failed to give the U.S. Fish and Wildlife Service, which has responsibility for safeguarding threatened species, budgets adequate to keep up with the flow of petitions for listing.

But environmentalists scoffed at the notion of Norton, who earlier in her career argued that the Endangered Species Act was unconstitutional, as a defender of plants and animals.

“The idea that she would be given discretion to decide which species, and when they would be listed, would be to invite a total emasculation of the act,” said Rodger Schlickeisen, president of Defenders of Wildlife, an environmental group. “You would be safe to predict we would never see a controversial species listed during her tenure.”

Norton’s department will have to implement court rulings in place by the start of the next fiscal year. Otherwise, the proposed action would give Norton flexibility in spending the $8.5 million requested for the endangered species program.

It would do so by allowing the agency to ignore several deadlines in the Endangered Species Act, which were put in place to give citizens a way to force the department--through legal action--to protect species even if it was under political pressure not to.

One deadline forces the government to respond within 90 days after receiving a petition to “list” a species. Another requires it to issue a “proposed determination” on whether it will list the species or designate a habitat within 12 months of receiving a petition. A third requires the government to make a “final determination” within 24 months.

Under the administration’s proposal, which if approved would take effect for the 2002 budget year beginning Oct. 1, Interior would be required to develop a new regulation spelling out its priorities for listing species and designating habitats.

Although the action would remove the basis for virtually all of the suits now filed under the act, citizen suits still could be filed challenging the secretary’s new priorities, according to Stephanie Hanna, a spokeswoman for the department.

Environmental groups in California reacted with alarm to the proposed change. California has 275 plants and animals considered so rare that the federal government has granted them protection under the act. Only one other state, Hawaii, has more listed species.

Some Creatures Aided by Suits

In California and nearby states, such creatures as the Quino checkerspot butterfly, the Coho salmon and the tiny songbird called the Southwest willow flycatcher were listed after environmental groups petitioned or sued the government.

One attorney who brought several suits that assisted in those listings said the administration’s proposal would give the Fish and Wildlife Service an excuse not to list other creatures that may be threatened with extinction.

“Given their track record over the years, that will mean, I’m afraid, that many biologically imperiled species that should be on the endangered species list will not be on the list,” said Michael Sherwood, staff attorney with the Earthjustice Legal Defense Fund in San Francisco.

“They might well go extinct,” said Sherwood, whose group went to court to protect such well-known animals as the desert bighorn sheep in the southern Sierras and Southern California deserts.

In one of the most sweeping lawsuits of its kind, Sherwood represented the California Native Plant Society in the mid-1990s to try to force the wildlife service to propose the listing of 160 rare plants. After a settlement, the service missed more deadlines, prompting a second suit and, after court action, the listing of most of the rare plants, Sherwood said.

More recently, the Earthjustice Fund has gone to court to force the National Marine Fisheries Service, which oversees marine species, to protect such fish as Coho salmon and steelhead trout along the coasts of California, Oregon and Washington. Some Fish and Wildlife Service officials have blamed environmentalists and their lawyers for clogging the system, straining their budgets and overworking their staff. But Sherwood disagrees.

“This is a problem Fish and Wildlife has created itself,” he said. “The reason we brought these lawsuits is that they violated the law. . . . They should have been asking Congress for more money, but instead they asked for less money than they knew they needed.”

Times environmental writer Deborah Schoch from Los Angeles contributed to this story.

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Protected Species

The number of species listed as threatened or endangered in the U.S.:

Species by State

States with the most threatened or endangered species

Hawaii: 312

California: 275

Florida: 100

Alabama: 99

Tennessee: 88

Source: U.S. Fish and Wildlife Service