Shooting Fish in a Barrel

Ranchers, home builders and others in favor of pell-mell development are blasting away at the federal Endangered Species Act like hunters on a rampage through a zoo. And the people whom President Bush appointed to defend the act are either cowering or cheering them on.

The act is supposed to protect the sort of “critical habitat” that gives species at risk of extinction a place to recover. The Clinton administration, during its last six years, protected scores of such places covering millions of acres, largely to comply with legal rulings from lawsuits that environmental groups brought to compel the government to act. The Bush administration, conversely, is negotiating settlements--most of which give developers whatever they want.

Their ability to do this stems from a dubious ruling by the 10th Circuit Court of Appeals in a New Mexico case involving 600 miles of river and stream habitat. Environmentalists wanted it set aside so that a bird called the willow flycatcher might have a chance to survive. The court’s explanation for scrapping the plan was that the government had not adequately considered the impact on local economic interests, mostly farmers and cattle growers. Now the Bush administration is using that dubious decision as a basis for undoing habitat designations in other areas, even though the ruling has no legal sway outside the six-state circuit.

The designation of critical habitat requires a more rigorous review of projects, but does not, as developers would lead us to believe, make it impossible to build. The act does require the government to consider economics. But environmental groups’ legal experts argue that the 10th Circuit Court carried that provision too far. They have a point. After all, the law also states that economic impact cannot be considered at all in decisions to put species on the endangered list.

There may be areas where the economic studies were inadequate. If so, the courts can and should order new ones, as they do with environmental impact studies. Fortunately it’s still illegal to disturb endangered species. But it would be reckless and contrary to the spirit of the act to simply chuck a habitat designation and fling endangered animals’ homes open to development while a revised study is in the works.

That’s just what happened to 19 species of salmon and steelhead in California and the Northwest. The agreement between home builders and the National Marine Fisheries Service simply dissolved the critical habitat established to protect these fish--which are economically significant themselves, the Bush administration might note.

In this case, the government’s fishy action still must be approved by U.S. District Judge Colleen Kollar-Kotelly in the District of Columbia. We urge her to give these creatures the protection that Congress intended by rejecting the agreement and keeping the habitat in place until a new impact study can be conducted.