Principal Provisions (USFWS 1996)

1. Principal Provisions (USFWS 1996) • Define “endangered” and “threatened” and empowered the Secretary of Interior and Commerce to list species (Sect. 3) • Species of plants and inverts are available for listing, as well as species and populations of vertebrates (Sect. 3) • Combined US and foreign species lists with uniform provisions applied to both (Sect. 4) • Provide matching funds for state coop agreements (Sect. 6) • Allow US to implement CITES (Sect. 8)

2. Administration of the Act • Done by US Fish and Wildlife Service or National Marine Fisheries Service (NOAA Fisheries) • Two main thrusts • LISTING • RECOVERY

3. Listing • Initiated by petition (individual, group, agency) or Service uses its priority system and available biological information • Priority system for listing

4. There are Too Many Listings to Be Processed on Time • USFWS has 4 tiers of priority to handle this • Tier 1--Emergency listing actions • immediate listing of species in imminent risk of extinction • Tier 2--Final listing decisions, sorting among candidate species, processing petitions to list, and reclassifying species by de- or down-listing • Tier 3--Critical habitat determination

5. Petitions and Listing

6. How are Species Prioritized for Listing? • Recall the stated listing criteria used by USFWS • As we discussed, species are not listed in order of priority. • Service gets sued, tries to complete final listing rules before considering new proposals, etc. • Conservation groups (PEER, Fund for Animals, etc) have been concerned about a more fundamental problem--DELAY AND LACK of listing • 33% are listed on time, 18% are >1year late

7. Listing Delays (GAO 1993) • Congress • May limit listing budgets • Eg., Public law 104-6 (FY 1996 budget act) • rescinded listing budget thereby imposing a moratorium on listing • removed with Clinton’s budget act in April 1996 • created a backlog of 243 species needing listing • May rescind the ESA • 5 million for 1998 • PEER claims its self-imposed to give the Service a way out of lawsuits seeking listing • USFWS counters that it is all they could expect to get

8. More Reasons for Delays • Insufficient data • spotted frog (3 year delay and then got “Warranted, but Precluded” by higher priorities) • Economic impacts of listing • spotted frog, Louisiana black bear, Jemez Mountains salamander, Bruneau Hot Springs Snail • Complete conservation agreements rather than list • Jemez Mountains salamander, Bruneau Hot Springs Snail

9. Effect of Delays • Lawsuits • Fund for Animals sued for listing of 85 Species in 1992 • court ordered service get in gear and process listing petitions • subverts priority system • only 41 of 85 species were priority 1,2, or 3 • delays ability (uses available funds) to list others not in the settlement agreement

10. Major Effect of Not Following Priority System • Arbitrary and Capricious Conservation • Sidle (1998) • Lynx

11. Recovery • Outline of recovery actions needed within 60 days • Recovery Plans developed by Recovery Team for the Regional Manager • Prioritization of species (add C for conflict)

12. Recovery Tasks For A Species • Tasks prioritized by recovery team • Priority 1--action that must be taken to prevent extinction or prevent the species from declining irreversibly • Priority 2--action that must be taken to prevent a significant decline in species population or habitat that comes short of extinction • Priority 3--all other actions necessary to provide for full recovery of the species • Combined with species priority rank • 1c-1 (top priority to do on top species)

13. Are Priorities Followed? (GAO 1988) • Are recovery tasks done? • Not all of them • only slightly more than 50% of tasks in 16 plans were initiated despite the plans being in place for an average of 4+ years • Are species recovered in order of their priority? • NO, a few species get the bulk of the funds • most funds go to 12 species, 6 of which are highly endangered and 2 of which are barely threatened • Are recovery tasks done in order of priority? • NO, in all but 2 of 16 species lower priority tasks were done before all priority 1 tasks were completed

14. Annual Expenditures do Not Follow Priorities (Restani and Marzluff 2001)

15. Why Aren’t Priorities Followed? • Congressional earmarking • takes part of Service budget and stipulates it to be spent on particular species • Allure of sexy species • high visibility, good PR, good chance of recovery • Lawsuits • For sexy species with public appeal • Poor Coordination • Conservation of species in one part of its range may not offset conservation in less important region • Plans are not kept up to date • priorities may no longer be valid

16. Effect of Earmarking • 1994 • total recovery budget for usfws = 29.55 million • Earmarked portion was 10.392 million (35%) • Only 28% of the earmarks were for species ranked as 1 or 2 on the priority list • A few sexy big winners • Peregrine (900K) rank = 9 • Condor (600K) rank = 4C • Wolves (1.6 mill) rank =3-5C • Manatee (500K) rank = 5C • Spotted Owls (2.35 mil) rank = 9C

17. Island Species Suffer From Not Following Priorities

18. Wide-ranging Species Benefit From Not Following Priorities

19. Things are Different Down Under (Endangered Birds in Australia; Garnett et al. 2003)

20. Why? • No Congressional influence to muddy the funding waters • Single Commonwealth minister, in consultation with advisors, can effectively allocate funds based on national priorities • No provision to challenge outcome of allocation in the courts

21. Funding Helps (Garnett et al. 2003)

22. Sometimes Politics Undoes Recovery Planning • Grizzly Bear recovery planning for Bitterroot Mountains of Montana and Idaho • 6 year consensus effort • Citizen Management Committee (appointed) • Would bridge Yellowstone pops to northern pops in Cabinet-Yaak Mountains • FWS adopted plan in Nov. 2000 • June 2001, Norton suspends plan • Bowed down to conservative State position • Kempthorne: grizzlies are “massive, flesh-eating carnivores.” • Public comments disagree with Norton • 98% of Idahoans and 93% of Montanans wanted grizzly reintroduction to proceed

23. Section 9 Provisions • Limit any person subject to jurisdiction of US to take endangered species (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct) • Harm was later defined and upheld by Supreme Court (1995; Babbitt vs. Sweet Home Chapter of Communities for a Great Oregon) to include HABITAT MODIFICATION

24. Section 9 Provisions Apply to Endangered, Not Threatened Species • Automatic application of all provisions to ENDANGERED SPECIES • THREATENED SPECIES can have benefits, but must be stated by Secretary • Sect 4(d) the secretary can “issue such regulations as he deems necessary and advisable to provide for the conservation” of threatened species, including regulations that prohibit any or all of the activities prohibited for endangered species

25. Section 7 Provisions: Federal Agencies Must: • (1) Cooperate with the Secretaries and use their own programs to further the conservation of endangered and threatened species, and • (2) Not authorize, fund, or carry out any action that would jeopardize a listed species or destroy or modify its critical habitat • Jeopardy refers to acts that reasonably would be expected, indirectly or directly, to reduce appreciably the likelihood of survival and recovery by reducing reproduction, numbers of distribution of a listed species • weighs proposed activity plus CUMULATIVE EFFECTS of activities likely to occur on state and private lands

26. Section 7 Consultation • Federal agencies must consult with the Service when activity affects listed species or likely jeopardizes proposed species or habitat • Informal Consultation--usually done to get exemption from formal consultation (no effect) • Formal Consultation--Action will affect listed species. Service does a Biological Opinion of whether action will result in jeopardy • must be completed within 90 days of initiation and delivered within 45 days

27. 1978 Amendments • Section 7 EXEMPTIONS for FEDERAL AGENCIES • After a biological opinion has been rendered by the service, the affected agency, the governor of the affected State, or the applicant for the federal permit of questionable effect (if applicable) can petition the Secretary • Secretary determines within 20 days if basic requirements of act are met and passes report to Endangered Species Committee • “God Squad”, “Gang of 7”

28. The Squad • Secretaries of Interior, Agriculture, and Army • Administrators of EPA, NOAA • Chairman of Council of Economic Advisors • Presidentially appointed representitive from any affected state

29. Exemption is Given if 5 of 7 Conclude: • There are no reasonable or prudent alternatives for the agency • The benefits of the action clearly outweigh the benefits of species conservation and the benefits are for the public good • The action is of regional or national significance • The agency or applicant did not purposefully over-commit resources that would preclude any reasonable or prudent alternatives

30. Two Exemptions Have Been Given • Grayrocks Dam, Wyoming (1979) • court settlement provided for compromise solution • BLM Timber sales, Oregon (1992) • Spotted Owl habitat--Environmental groups sued claiming that Bush and staff had illegal contact with God Squad • Long litigation history with these sales has kept them from being harvested • BLM withdrew exemption application in 1993 when Clinton was elected • Attempted again with G. W. Bush • Withdrawn again with Obama (follow NW Forest Plan)

31. Designating Critical Habitat • Critical Habitat includes habitat in and out of current range that contains physical or biological features (1) essential to the conservation of the species and (2) requiring special management considerations or protection. • Federal agencies must not jeopardize listed species or appreciably affect their abundance by reducing or modifying their critical habitat (Sect. 7) • Required to be designated at time of listing • if PRUDENT and considering economics • USFWS changing mind on its importance

32. Designating Experimental Populations • 1982 amendment added exemption for experimental populations • population established by human intervention that is outside of the species’ current range • essential versus nonessential experimental populations • essential have full protection of Section 7 • nonessential is not protected by Section 7 • all are viewed as THREATENED species • can be helpful in getting public support/access

33. Experimental Populations Can Backfire • Yellowstone & central ID wolves • 1997, judge found that introduced wolves could not be considered a nonessential experimental population and ordered them removed (stayed, pending appeal) • USFWS claim that reintroduction areas are outside of current range is arbitrary and capricious • Cannot keep experimental population in area because it diminishes protection to natural population

34. Incidental Take • Incidental take is take that results from some activity “but is not the purpose of the otherwise lawful activity.” • Can take species only with permit • Federal agencies get “incidental take statement” in biological opinion during section 7 consultation • Private and state entities get “incidental take permit” (Sect. 10) by negotiating a habitat conservation plan (HCP)

35. Mitigation for Take • Basically incidental take is allowed if it is: • minimized and will not appreciably reduce the likelihood of survival and recovery of species • mitigated • defined as to extent • monitored • all alternatives are impractical • applicant ensures funding and means to deal with unexpected circumstances

36. Getting off the List • Priority system for de-listing and down-listing as well • based on petition status and the impact of the reclassification on other management (how much $ will be freed up to do other work)

37. Enforcement and Penalty • Citizen suits---backbone of the act • can sue individuals, corporations, or agencies • Penalties depend on status of species, knowledge of violator • knowing violators can get 1year in prison and $50,000 fine (half of both for threatened species) • can revoke leases, licenses, etc. • equipment can be forfeited

38. Literature Cited • USFWS 1996. A summary of the ESA and implementation activities. (www.fws.gov/r9endspp/esasum.html). • Bean, M. J. and M. J. Rowland. 1997. The evolution of national wildlife law, Third Edition. Praeger. Westport, CN. • USFWS 1983. Endangered and threatened species listing and recovery priority guidelines. 48FR 43098. • Garnett, S; Crowley, G., and A. Balmford. 2003. The costs and effectiveness of funding the conservation of Australian Threatened Birds. BioScience 53:658-665. • Knibb, David. In press. Grizzly Wars. U. W. Press

39. Literature Cited • USFWS. 1997. Recovery plan for the threatened Marbled Murrelet in Washington, Oregon, and California. Portland, OR. 203pp. • GAO. 1993. Factors associated with delayed listing decisions. GAO/RCED-93-152. • Sidle, JG. 1998. Arbitrary and capricious species conservation. Conservation Biology 12:248-249. • Clark, T. W., Reading, R. P., and Clark, A. L. (eds.) 1994. Endangered species recovery: finding the lessons, improving the process. Island Press