THE AMERICAN FARM BUREAU FEDERATION
ON LISTING AND DE-LISTING SPECIES
UNDER THE ENDANGERED SPECIES ACT
ENVIRONMENT AND PUBLIC WORKS COMMITTEE
May 9, 2001
The American Farm
(AFBF), the nation’s largest general
farm organization representing the interests of over 5
million member families, submits this statement for the hearing record.
America’s farmers and ranchers own and use much of the land and waters that are inhabited by endangered and threatened species. They feel the impacts of listing species under the Endangered Species Act every day.
The overriding purpose of the Endangered Species Act is the recovery of species on the brink of extinction. This is to be accomplished by placing them on a list of endangered or threatened species, where they are to be protected from adverse activity until they have achieved “recovery” as determined by a recovery team. The ultimate goal of the ESA is removal from the lists.
It has not worked that way
in practice, however. Species
that are lawfully hunted or fished in other parts of the continent or country
are listed under the ESA, while species that are truly on the brink of
extinction are waiting. Courts, not the
agencies themselves, set the agenda for which species get listed. And once listed, species rarely are removed
from the list, even though they have met stated recovery goals.
We have several concerns with the listing/delisting process, and offer some suggestions as to how the ESA might be amended to return to its original intent.
The ct Should Require Minimum Scientific Standards Necessary to Support Listing and Other Decisions Affecting Listed Species.
The most serious
deficiency with the ESA listing process is that it does not contain
any minimum scientific
standards to list a species.
most celebrated case involving an endangered species remains the snail
darter. This small fish halted a multi
dollar water project in Tennessee. A
lawsuit over this human-species conflict went to the Supreme Court, and remains
the only substantive case on the Endangered Species Act to have been decided by that
forum. Following the decision in Tennessee
Valley Authority v. Hill, Congress passed a law exempting the Tellico Dam
project from the strictures of the Act.
A few months later, several more areas were found to be inhabited with snail darters. The species was soon thereafter downlisted from "endangered" to "threatened." Millions of taxpayer dollars were wasted because of incomplete scientific information.
Recently, five snails located in the Snake River in Idaho were listed as either endangered or threatened, despite the fact that less than one percent of their possible habitat had ever been surveyed. The decision to list was made even though only approximately 300 square feet of the entire Snake River had ever been sampled for the presence of these species. That is not the use of sound science in the application of the Endangered Species Act.
Species Act decisions currently are required to be made on the basis of
"the best scientific and commercial data available." The "best" scientific data
available might be as little as one monograph on the subject by a single masters
affected species occupying greater habitat areas and affecting more basic,
pre-existing human activities than ever before, there is too much at stake to
make such decisions on inadequate scientific evidence. Before basic human patterns are disrupted,
jobs are lost and communities are stripped of economic vitality, we submit that
Species Act decisions
based on more sound, scientific certainty than is currently required.
The problem with this non-standard can be illustrated by applying peer review principles to it. The only function of a peer review team would be to determine whether the information used was the “best available,” not whether it is sufficient to support listing the species.
We are troubled that private landowners are being required to prove that government data is incorrect. Private landowners do not have the resources that are available to the government; and even in the face of contradictory evidence, there is no guarantee that the government will accept it. We submit that precious time and resources will be saved if the listing agency or the agency making the decision is required to do it right in the first place.
requiring an affected private person to disprove the government's data places
the ultimate burden of proof for Endangered Species Act decisions on the
private party. Instead, the burden of
proving that a species deserves to be listed or that certain management
prohibitions are appropriate should be on the government agency proposing the
After all, the Act
requires the FWS to make decisions whether or not to list certain species, and
those decisions should at the very least be based on sound science. The agency has greater resources available
to it, is in a better position to obtain required data, and should be required
to justify its actions.
The term "best
scientific and commercial data available" must be defined to incorporate
minimum scientific standards and procedures necessary to sustain a decision
that a species be listed or that some other action be taken. This amendment is
necessary to ensure that decisions affecting entire regions of the country are
not being made on outdated information or on bare assumptions that could easily
be disproved. Further, there must be
some unbiased, objective review
prior to decision to ensure that the
proffered data meets minimum scientific standard s .
accomplish this, we suggest the creation of a truly independent Scientific
Advisory Panel to peer review ESA
decisions prior to their proposal to ensure that
there is sufficient scientific data to support the conclusion. We envision the Scientific Advisory Panel to
have much the same role as the Scientific Advisory Panel within EPA, except
that the panel would have authority to veto any proposal that did not meet
minimum scientific standards.
2. The Endangered Species Act Must Eliminate Application to "Sub-Species" and "Distinct Populations."
One of the reasons leading to the enactment of the Endangered Species Act was the increasing number of species that were cited as becoming extinct each year. The Act was passed to try to reverse that trend. The stated trade-off for restricting land uses, stifling the economy, causing the loss of jobs, and adding millions of dollars of regulatory costs as the cost of doing business is to keep species from becoming extinct.
Were the ESA limited to that goal, it would be much easier to accept by those who are directly affected by its harsh restrictions. By extending the law to "subspecies" and "distinct populations", however, the Act goes far beyond what the public is being told is the goal of the law. We submit that the definition of "species" should be amended to delete protection to sub-species and distinct populations.
Taxonomic definition to the "species" level is sufficient to separate different plants, animals and fish that should be protected under the Act. Further classification into sub-species often adds nothing to the taxonomic definition of a species. So-called sub-species are often indistinguishable from others of the species, and there is no practical reason for such sub-classifications to be protected separately. Classification at the species level is what gives the organism its identity--further sub-classifications add little or nothing.
protection down to the sub-species level bears little relationship to whether a
species becomes extinct, protection based on "distinct populations"
has absolutely no relationship to the survival of the species. As with sub-classifications of species, a
particular plant, animal or fish might be thriving as a whole, but the Act
would allow that species to be listed as "endangered" or
"threatened" if it is not thriving in one particular area of its
historical range. To permit a listing
on that basis where the species is thriving elsewhere flies in the face of
everything that the Act is supposed to represent. Furthermore, this situation siphons scarce resources from species
that really are in danger of extinction to protect distinct populations of more
It almost sounds as if this
sort of a listing is designed to turn
back the clock and remove people from the land and return it to the flora and
fauna that might have lived there many years ago.
The clearest and most visible example of this "preservationist" strategy is the status of the so-called "gray wolf" under the Act. From a biological standpoint, all experts agree that the species of "gray wolf" is in no danger of becoming extinct or endangered. There are approximately 60,000 of these animals in Canada with an additional 8,000 in Alaska and 2,000 more in Minnesota, Wisconsin and Michigan. Based on the supposed goal of the Act, there is no conceivable way that this animal would or should be listed under the Act.
the "distinct population" idea, however, the gray wolf is listed as
"threatened" in Minnesota and "endangered" in the other 47
controversies surrounding the Act. The
federal government has conservatively estimated that it has spent nearly $6.5
million on the introduction project, which represents about one-half the total
estimated cost. Yet, the
whole mess was unnecessary.
Government officials state that introduction is necessary to "recover" the species. Yet the species is fully "recovered" in large numbers in Canada and Alaska, and a healthy population lives in northern Minnesota.
Aside from having no rational basis for inclusion in the Act, the "distinct population" criterion is being used in a manner that was not intended by the Act. "Distinct populations" are not being used to decide whether a proposed project should be begun in an area. As with the wolf introduction example, or in the example of specifying different runs of salmon as separated protectable species, these activities affect the basic fabric of people's lives. Instead of proposed, future activities, these actions affect the way people live and make their livelihoods. It is this very basic difference between intention and present reality that demands that the structure, functions and priorities of the Act be re-thought.
much agency time, attention and money is devoted to listing and
these kinds of "distinct
populations" like the gray wolf that species truly
in need of federal assistance are left wanting. We submit that both the
agricultural community and the truly endangered species would benefit from a
return to the central purpose of protecting those species which are in danger
of becoming extinct. We submit that the
only way this can be accomplished is if the Act focus on plants and animals at the species
level. Protection for sub-species and
"distinct populations" should be removed from the Act.
There are a number of ways in which the “distinct population” concept is being abused by the agency.
that are so plentiful that they are even hunted or fished in Canada or Mexico
are listed in the United States.
there is an ample number of
gray wolves in Canada and Alaska that they are in no danger of becoming
extinct. They are lawfully hunted. Likewise, there is a sufficient number
of grizzly bears in Canada that they are not in danger of extinction. Canada lynx are plentiful in Canada, yet on
the threatened list in the United States.
salmon and many Pacific salmon are raised in captivity where they are fished
and eaten, yet they are on the endangered species list. Atlantic salmon raised in fish hatcheries
are the same fish as the salmon occurring in the wild. They have interbred for nearly 150 years and
have been used to re-stock rivers and streams.
They return to the river of origin to spawn, just
naturally occurring brothers. Yet the hatchery
All of these listings have caused severe disruption to people residing in the affected areas. These species should never have been listed in the first place.
3. The Act Must Differentiate and Distinguish Between
Species Listed as Endangered and Species Listed as Threatened.
When Congress first enacted the ESA, it created two classifications of listed species -- those that were "endangered" and those that were "threatened." While the Act continues these distinctions, the Act is also being applied in such a way that there is no practical difference between an "endangered" species and a "threatened" species. Congress intended for FWS to adopt flexible management options for threatened species that are not as strict as the management mandates for endangered species.
FWS, however, has failed to carry out this intent of Congress. Instead, the prohibitions of section 9, applicable in the Act only to endangered species, are being applied in toto to threatened species as well.
The Act needs
to be amended to carry out the original
intent to realize the difference between an "endangered"
listing and a "threatened" listing.
We suggest that sections 7 and 9 be amended to provide a separate list
of criteria for "threatened" species. An alternative to the amendment to section 9 would be to require
the Secretary to implement conditions of "take" for each threatened
species at the time of listing as part of the listing proposal. The Act must then provide that these will be
the only conditions for "take" for that species.
4. Listings Should be Based on the
of Extinction , Not on the
Loss of Historical Habitat.
The ESA sets forth five criteria to assist in the consideration in determining whether a species is endangered or threatened. They are factors to be considered, not ends in themselves. The ultimate determination is whether the species meets the ESA definition of “endangered” or “threatened.”
One of those criteria is whether the species
has been eliminated from all or a significant portion of its historic
range. While the loss of habitat is a
legitimate factor to consider in determining whether a species should be
listed, a species should not be listed solely because it is not found
everywhere it once was
We believe the
ESA should be amended to clarify that the five listed factors are only aids for
consideration, and that the ultimate determination is whether the species is
threatened with extinction or endanger
5. The Act Needs to be Amended to Require De-listing upon Attaining Recovery Goals.
The goal of the ESA is to de-list species that have been on the endangered and threatened species list. That means they have met recovery goals and are considered “recovered.”
requires the development of a recovery plan that is developed by a recovery
team, a team of scientists and interested parties appointed
and no longer warrant being on the list.
This has not
worked in practice, however. Species
that have attained recovery goals remain under the protection of the ESA when
they should be de-listed. Grizzly bear
populations in both Glacier and Yellowstone National Parks have exceeded
recovery goals since 1990, and there has been no move to de-list. Instead of de-listing, the agency changed
the recovery goals. Still, these
populations exceeded the new recovery goals. Wolves in the Great Lakes region
have also exceeded recovery goals, there being almost twice as many wolves in
Minnesota than required for recovery under the recovery plan. Yet, in a proposed reclassification of the
gray wolf population in the United
published last year, the Great Lakes
wolves were not proposed for de-listing.
Clearly, a new process is needed.
that the ESA be amended to require that upon attainment of recovery goals, a
species should be automatically de-listed, and that notice of the de-listing be
published in the Federal Register.
a mandatory process like this is the
only method that will allow reluctant agencies to do what they are required by
the ESA to do.
We look forward to working with the committee on bringing about these changes.