Governors Seek Easing of Endangered Species Act

Western governors gathered here Friday to plan with the Bush administration and members of Congress how to change the Endangered Species Act, the 31-year-old law they say has imposed costly hardships on the energy industry, developers, loggers and property owners.

Moreover, they contend, the act has failed in its core mission. Though it has saved a number of plant and animal species from extinction, it has helped restore only a few of them to healthy populations.

“Just about everybody agrees the Endangered Species Act is broken,” said Rep. Richard Pombo, a Tracy, Calif., cattleman turned chairman of the House Resources Committee. “The only way you are going fix it is with legislative change.”

Though Pombo’s opinion is not universally shared, it has support from the Bush administration.

Pombo and Assistant Interior Secretary Craig Manson buoyed spirits here with the announcement that federal biologists have determined that the sage grouse, a bird whose sagebrush territory sits atop rich oil and gas fields in 11 Western states, is not threatened with extinction and does not need federal protection as an endangered species.

Studies show that the bird’s numbers have fallen dramatically as agricultural and industrial development have intruded on nesting and breeding areas.

Manson, who oversees the U.S. Fish and Wildlife Service, which enforces the Endangered Species Act, is on record as saying the federal government should temper its efforts to protect threatened wildlife.

“We have to recognize that, A, we can’t protect everything, and B, we have to carefully examine whether we should try to protect everything, and at what cost,” Manson said in an interview last year.

If the sage grouse was listed as an endangered species, ranchers and oil and gas companies could face significantly increased costs and regulatory delays on land deemed critical to the bird’s survival.

Battle lines over the Endangered Species Act appear to be forming around two issues. One is critical habitat, the protected area thought to be key to a species’ survival and recovery.

The other is at what point a small, distinct population of a species warrants listing for federal protection if the larger population elsewhere appears to be healthy.

Protection of endangered species is a Western issue because nearly 70% of’ the nation’s endangered plants and animals are in the West -- as are many of the nation’s timber, oil, gas and other natural resources. California is home to about 291 threatened and endangered species -- second only to Hawaii in number.

Federal officials, and the 12 Republican governors who dominate the 18-member Western Governors’ Assn., suggested that the states can take a greater role in protecting rare species, and that they don’t need the entanglements that come with the federal law.

“The act has become something other than recovering species,” Pombo said. “It’s become a tool to stop growth, to stop mining, to stop logging. To stop a freeway from being built. It’s become a tool that people are using to accomplish other goals.”

At a news conference Friday, Gov. Michael Rounds of South Dakota, a Republican, said he was amazed that anyone would propose listing black-tailed prairie dogs, “which we consider a pest.”

Nevada’s Republican Gov. Kenny Guinn told a story about a personal investment in a “beautiful piece of land” perfect for a golf course or housing subdivision that was delayed by the presence of what one college professor identified as an endangered kangaroo rat.

Not all Western governors shared the view that the law has not worked.

New Mexico Gov. Bill Richardson, a Democrat, shifted uncomfortably while his fellow governors heaped on criticism. “My view is that we don’t need a major overhaul of the Endangered Species Act,” he said later. “We need some tinkering; we need some readjustments. I think the act works.”

Although the act wasn’t a campaign issue, Pombo said the reelection of President Bush and the added numbers of Republicans in the House and Senate suggested that voters were behind the agenda for a change. The Endangered Species Act Executive Summit was a chance to build momentum, Pombo said, adding he hoped Gov. Arnold Schwarzenegger would join with other GOP governors in the effort for change.

For his part, Schwarzenegger was noncommittal in his welcoming remarks to the governors.

Pombo remained undeterred. “We will advance our goal of fixing this broken law with the summit discussions this weekend,” he said. “It is not a question of if we should improve this law; it is a question of how.”

Earlier this year, Pombo’s committee passed bills that would make it harder to place a plant or animal on the endangered species list and designate critical habitat. So far, those bills have stalled.

Conservation groups suggest that the bills are part of an orchestrated assault on the law, which began with lawsuits by industry and property rights groups and a series of rule changes by the Bush administration.

This week, for instance, the administration proposed a dramatic rollback of its designated “critical habitat” for 20 species of threatened or endangered salmon and steelhead trout that spawn in streams from Southern California to Canada.

The changes, initiated by a lawsuit from home builders, have been championed within the Bush administration by Mark Rutzick, a former timber industry lawyer who last year was appointed legal advisor to the National Oceanic and Atmospheric Administration, the parent agency of the National Marine Fisheries Service.

Rutzick rewrote the proposed critical habitat designations to exclude salmon streams that run through millions of acres of national forest land in Northern California, Oregon and Washington. He contended that existing protections for a bird, the northern spotted owl, were sufficient.

While representing the American Forest Resource Council, Rutzick sued the federal government to block protection of the spotted owl and the marbled murrelet, a tiny sea bird that nests in tall trees in Northern California, Oregon and Washington.

This fall, the U.S. Fish and Wildlife Service took a step toward removing the marbled murrelet from the threatened-species list, saying it should be not be considered for protection apart from its more abundant cousins in Canada and Alaska.

Rutzick was unavailable for comment Friday, said spokesman Jordan St. John, who insisted that Rutzick was merely taking a more balanced approach to interpreting the law.

The issue of whether isolated populations of species such as the marbled murrelet merit protection will surface again in mid-December when the fisheries service decides whether to extend endangered species protection to the 84 or so remaining killer whales in Washington’s Puget Sound. The fisheries service declined to list these resident orcas two years ago, but a federal judge told the agency to reconsider its action by Dec. 17.

The other point of contention -- critical habitat -- has prompted complaints for years from private property owners about the costs of restricting development on land to provide sanctuary for listed species.

After repeated challenges, the U.S. 10th Circuit Court of Appeals ruled in 2001 that the Fish and Wildlife Service should consider the economic effects of habitat designation. That decision gave critics, particularly business interests, a foothold on tempering the act’s rules.

Meanwhile, the Department of Interior in recent years has designated less than half of the acreage that federal biologists say is needed to help various species recover. The department has added a six-paragraph disclaimer attached to critical habitat designations published in the Federal Register. It reads, in part: “Designation of critical habitat provides little additional protection to species.”

The view is championed by Interior official Manson, who has been crisscrossing the country arguing that critical habitat affords no extra protection for a listed species.

Conservationists say Manson’s speeches ignore Fish and Wildlife’s own statistics, which show that endangered species with critical habitat designation are twice as likely to increase in numbers as those without.