WASHINGTON— In a massive attack on imperiled wildlife, the Trump administration announced a series of rollbacks today to the regulations implementing key provisions of the Endangered Species Act.
The three proposed rules from the U.S. Fish and Wildlife Service and National Marine Fisheries Service would severely weaken protections for hundreds of endangered animals and plants across the country. They would also ensure that hundreds of imperiled species awaiting protection — like the monarch butterfly and the American wolverine — either never get safeguards or face additional, extinction-threatening delays.
One set of regulatory changes would weaken the consultation process designed to prevent harm to endangered animals and their habitats from federal agency activities. A second set of changes would curtail the designation of critical habitat and weaken the listing process for imperiled species. A third regulation would gut nearly all protections for wildlife newly designated as “threatened” under the Act.
The proposals are part of a broader effort by Interior Secretary Ryan Zinke to undercut protections for wildlife and public lands.
“These proposals would slam a wrecking ball into the most crucial protections for our most endangered wildlife,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “If these regulations had been in place in the 1970s, the bald eagle and the gray whale would be extinct today. If they’re finalized now, Zinke will go down in history as the extinction secretary.”
Under the proposal relating to federal consultations, impacts to critical habitat will be ignored unless they impact the entirety of an animal’s habitat — ignoring the fact that “death by a thousand cuts” is the most common way wildlife declines toward extinction.
The proposal will also prohibit designation of critical habitat for species threatened by climate change, even though in many cases these species are also threatened by habitat destruction and other factors. The proposal will also preclude designation of critical habitat for areas where species need to move to avoid climate threats.
“This proposal turns the extinction-prevention tool of the Endangered Species Act into a rubber stamp for powerful corporate interests,” said Hartl. “Allowing the federal government to turn a blind eye to climate change will be a death sentence for polar bears and hundreds of other animals and plants.”
The regulatory proposal addressing listing and critical habitat designations will gut wildlife agencies’ ability to designate critical habitat in unoccupied areas needed for recovery. Even though most endangered species currently occupy small fractions of their historic range, those areas would effectively be precluded from ever helping a species recover.
“Ordinary Americans understand that many species of wildlife have drastically declined in recent years, and that if we are going to save wildlife, we have to let them return to places they used to roam. Denying imperiled wild animals that ability means they have no future,” said Hartl.
LOS ANGELES— The Center for Biological Diversity notified the U.S. Fish and Wildlife Service today of its intent to sue the agency for failing to protect lifesaving critical habitat for the western yellow-billed cuckoo.
The songbird once ranged widely in the western United States but has declined to as few as 350 pairs concentrated in Arizona, New Mexico and California. The Center has worked for its protection for two decades, first submitting a scientific petition to list it under the Endangered Species Act in 1998.
“After many years of delay, it’s time for the Fish and Wildlife Service to protect the cottonwoods and willows and other streamside homes of this tenacious songbird,” said Brian Segee, a senior attorney at the Center. “Caring for our western rivers is essential to the cuckoo’s survival. And river restoration also has huge benefits for people and communities that need healthy waterways.”
The yellow-billed cuckoo depends on healthy streamside areas for breeding, nesting and feeding. Its disappearance from vast expanses of its former habitat is due largely to damming of rivers, water withdrawal and livestock grazing. Climate change threatens the cuckoo with increased drought, and pesticide use and collisions with communication towers and other tall structures further imperil the bird.
Critical habitat designation would help address these threats by requiring federal agencies to consult with the Service when their actions may result in damage or destruction of the bird’s habitat.
“The cuckoo has to get critical habitat designated immediately if we hope to continue to hear its call along our western rivers and streams,” said Segee.
In an announcement last month, the Service issued a positive 90-day finding that a petition to delist the western cuckoo submitted by livestock, mining and extremist property-rights interests “may be warranted,” the first step toward potential delisting of the species. The Center is separately opposing that proposal.
Background
The western yellow-billed cuckoo winters in South America and summers in the western United States and parts of Mexico and Canada. Its range has drastically shrunk with the species no longer occurring in most of the northern half of its range in the West.
Today the bird survives in scattered locations in small numbers, including along California’s Sacramento, Eel and Kern rivers; the Colorado, Gila, Verde and San Pedro rivers in Arizona; New Mexico’s Gila and Rio Grande rivers; and scattered locations in Colorado, Idaho, Nevada, Texas, Wyoming and Utah. Historically it was common from the shores of Lake Washington in Seattle to the mouth of the Colorado River.
The cuckoo is a visually striking bird with a long tail with flashy white markings. It breeds in streamside forests of cottonwood and willow and is one of the few species that can eat spiny caterpillars, such as tent caterpillars, which the adult birds and their chicks gorge on in the spring and summer.
NEW ORLEANS— From economists and scientists to religious leaders and business owners, dozens of groups this week submitted “friend of the court” briefs asking the U.S. Supreme Court to maintain protections for 1,600 acres of “critical habitat” designated in Louisiana for endangered dusky gopher frogs.
“It’s inspiring to see so many people eloquently urge our nation’s highest court to protect endangered wildlife,” said Collette Adkins, a Center attorney fighting in the Supreme Court for the frog’s protections. “While these folks represent a wide range of interests, they’re united in supporting these little frogs, their habitat protections and the Endangered Species Act. Like most Americans, these scientists, businesspeople and faith leaders recognize that imperiled animals need a place to live.”
The U.S. Supreme Court in January granted a “petition for certiorari,” filed by the timber company Weyerhaeuser, to reconsider a June 2016 decision from a three-judge panel of the 5th Circuit Court of Appeals that upheld a 2012 rule establishing the frog’s protections.
That rule protects 6,477 acres of critical habitat in Mississippi and Louisiana, including 1,600 privately owned acres of unoccupied frog habitat in St. Tammany Parish, Louisiana. The panel held that the U.S. Fish and Wildlife Service reasonably concluded that the St. Tammany Parish land is essential for recovery of the frogs, which are now confined to just three sites in southern Mississippi — with only one site regularly showing frog reproduction.
The “friend of the court” briefs, also known as “amicus briefs,” filed this week ask the Supreme Court to affirm the panel decision. Volunteer lawyers and law students wrote the briefs, in a coast-to-coast effort to represent scientists, legal experts and others with economic, scientific, moral and aesthetic interests affected by this case:
Landowners who value the presence of endangered species on their property and welcome efforts to preserve their habitats;
Faith-based groups recognizing a shared commitment, rooted in religious teachings and principles, to care for the earth and its species;
Scientists with expertise in conservation biology, including Stuart Pimm and E.O. Wilson;
Frog experts who study amphibian ecology and have expertise in conservation of gopher frogs;
Economists and law professors with expertise in economic theory, cost-benefit analysis, the valuation of environmental goods and environmental law and regulation;
Small-business owners including ranchers, ecotourism entrepreneurs and artists, who make an economic case for biodiversity and stewardship.
The Center for Biological Diversity organized the amicus effort and, along with the Gulf Restoration Network, intervened in the case. Participating as parties in the litigation before the Supreme Court, the Center and GRN last week filed their brief in support of the frog’s habitat protections.
Background
The dusky gopher frog (Rana sevosa) is a warty, dark-colored frog with ridges on the sides of its back. When picked up, these frogs cover their eyes with their forefeet, possibly to protect their faces until predators taste their bitter skin secretions and release them. Gopher frogs spend most of their lives underground in burrows created by gopher tortoises — hence their name.
Once prevalent in Louisiana, Mississippi and Alabama, dusky gopher frogs are nearly extinct. More than 98 percent of longleaf pine forests — upon which the frog and many other rare animals depend — have been destroyed. Fire suppression, drought, pesticides, urban sprawl, highway construction and the decline of gopher tortoises have made this frog so rare it now lives in only a few small Mississippi ponds, with only one pond showing consistent frog reproduction.
In response to a Center lawsuit, the Fish and Wildlife Service listed the gopher frog as a federally endangered species in 2001. The lawsuit and advocacy by the Center also prompted the 2012 critical habitat designation at issue in the Supreme Court case. Additionally, in response to legal advocacy by the Center and Gulf Restoration Network, the agency released a final recovery plan for the frogs in 2015.
WASHINGTON— In a narrow vote, on June 21 the U.S. House of Representatives passed a 2018 Farm Bill that contains an unprecedented provision that would allow the killing of endangered wildlife with pesticides.
With every Democrat and 20 Republicans voting in opposition, H.R. 2, the so-called Agriculture and Nutrition Act of 2018, passed by a vote of 213 to 211. Two Republicans abstained from voting.
“House Republicans just put killer whales, frogs and hundreds of other species on the fast track to extinction,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “This is a stunning gift to the pesticide industry with staggeringly harmful implications for wildlife.”
The legislation would also eliminate the requirement that the U.S. Fish and Wildlife Service analyze a pesticide’s harm to the nation’s 1,800 protected species before the Environmental Protection Agency can approve it for general use. A separate provision would eliminate the Clean Water Act’s requirement that private parties applying pesticides directly into lakes, rivers and streams must first obtain a permit.
During this session of Congress, the pesticide industry has spent more than $43 million on congressional lobbying to advance these provisions.
In addition to giveaways to the pesticide industry, H.R. 2 includes a sweeping provision that would gut environmental protections for national forests to expedite logging and mining, including eliminating nearly all protections for old-growth forests in Alaska. The legislation contains nearly 50 separate provisions that would eliminate all public input in land-management decisions provided by the National Environmental Policy Act.
“This farm bill should be called the Extinction Act of 2018,” said Hartl. “If it becomes law, this bill will be remembered for generations as the hammer that drove the final nail into the coffin of some of America’s most vulnerable species.”
The Trump administration is clashing with conservation groups and others over protection for the greater sage grouse (Centrocercus urophasianus), a bird widely known for its dramatic mating displays. The grouse is found across sagebrush country from the Rocky Mountains on the east to the Sierra and Cascade mountain ranges on the west.
This region also contains significant oil and gas deposits. The Trump administration is revising an elaborate plan developed under the Obama administration that sought to steer energy development away from sage grouse habitat. Conservation groups are suing in response, arguing that this shift and accelerated oil and gas leasing threaten sage grouse and violate several key environmental laws.
This battle is the latest skirmish in a continuing narrative over management of Western public lands. Like its Republican predecessors, the Trump administration is prioritizing use of public lands and resources over conservation. The question is whether its revisions will protect sage grouse and their habitat effectively enough to keep the birds off of the endangered species list – the outcome that the Obama plan was designed to achieve.
Sage grouse under siege
Before European settlement, sage grouse numbered up to 16 million across the West. Today their population has shrunk to an estimated 200,000 to 500,000. The main cause is habitat loss due to road construction, development and oil and gas leasing.
More frequent wildland fires are also a factor. After wildfires, invasive species like cheatgrass are first to appear and replace the sagebrush that grouse rely on for food and cover. Climate change and drought also contribute to increased fire regimes, and the cycle repeats itself.
Concern over the sage grouse’s decline spurred five petitions to list it for protection under the Endangered Species Act between 1999 and 2005. Listing a species is a major step because it requires federal agencies to ensure that any actions they fund, authorize or carry out – such as awarding mining leases or drilling permits – will not threaten the species or its critical habitat.
Current and historic range of greater sage grouse. USFWS
In 2005 the U.S. Fish and Wildlife Service declared that an ESA listing for the sage grouse was “not warranted.” These decisions are supposed to be based on science, but leaks revealed that an agency synthesis of sage grouse research had been edited by a political appointee who deleted scientific references without discussion. In a section that discussed whether grouse could access the types of sagebrush they prefer to feed on in winter, the appointee asserted, “I believe that is an overstatement, as they will eat other stuff if it’s available.”
In 2010 the agency ruled that the sage grouse was at risk of extinction, but declined to list it at that time, although Interior Secretary Ken Salazar pledged to take steps to restore sagebrush habitat. In a court settlement, the agency agreed to issue a listing decision by September 30, 2015.
Negotiating the rescue plan
The Obama administration launched a concerted effort in 2011 to develop enough actions and plans at the federal and state level to avoid an ESA listing for the sage grouse. This effort involved federal and state agencies, nongovernmental organizations and private landowners.
California, Colorado, Idaho, Montana, Nevada and Wyoming all developed plans for conserving sage grouse and their habitat. The U.S. Forest Service and Bureau of Land Management revised 98 land use plans in 10 states. And the U.S. Department of Agriculture provided funding for voluntary conservation actions on private lands.
In 2015 Interior Secretary Sally Jewell announced that these actions had reduced threats to sage grouse habitat so effectively that a listing was no longer necessary. A bipartisan group of Western governors joined Jewell for the event. But despite the good feelings, some important value conflicts remained unresolved.
Interior Secretary Sally Jewell announces the sage grouse rescue plan in Colorado, Sept. 22, 2015. Behind Secretary Jewell are, left to right, Colorado Gov. John Hickenlooper, Wyoming Gov. Matt Mead, Montana Gov. Steve Bullock, and Nevada Gov. Brian Sandoval. AP Photo/Brennan Linsley
Notably, the plan created zones called Sagebrush Focal Areas – zones that were deemed essential for the sage grouse to survive – and proposed to bar mineral development on 10 million acres within those areas. Some Western governors, such as Butch Otter of Idaho, viewed this element as a surprise and felt that it had been dropped on states from Washington, without consultation.
The Trump administration wants to cancel creation of Sagebrush Focal Areas and allow mining and energy development in these zones. Agency records show that as Interior Department officials reevaluated the sage grouse plan in 2017, they worked closely with representatives of the oil, gas and mining industries, but not with environmental advocates.
Can collaboration work?
If the Trump administration does weaken the sage grouse plan, it could have much broader effects on relations between federal agencies and Western states.
Collaboration is emerging as a potential antidote to high-level political decisions and endless litigation over western public lands and resources. In addition to the sage grouse plan, recent examples include a Western Working Lands Forum organized by the Western Governors’ Association in March 2018, and forest collaboratives in Idaho that include diverse members and work to balance timber production, jobs and ecological restoration in Idaho national forests.
Warning sign in Wyoming. Mark Bellis/USFWS, CC BY
There are two key requirements for these initiatives to succeed. First, they must give elected and high-level administrative appointees some cover to support locally and regionally crafted solutions. Second, they have to prevent federal officials from overruling outcomes with which they disagree.
When the U.S. Fish and Wildlife Service announced in 2015 that an endangered listing for the sage grouse was not warranted, the agency committed to revisit the bird’s status in 2020. To avoid having to list the grouse as endangered, the Trump administration must provide enough evidence and certainty to justify a decision not to list, as the Obama administration sought to do. If Interior changes land management plans and increases oil and gas leasing, that job could become harder. It also is possible that Congress might prohibit a listing.
Finding a lasting solution will require the Trump administration to collaborate with states and other stakeholders, including environmental advocates, and allow local land managers to do the same. Then, whatever the outcome, it cannot reverse their efforts in Washington. As Matt Mead, Wyoming’s Republican governor, warned in 2017, “If we go down a different road now with the sage grouse, what it says is, when you try to address other endangered species problems in this country, don’t have a collaborative process, don’t work together, because it’s going to be changed.”
Finding a lasting solution will require the Trump administration to collaborate with states and other stakeholders, including environmental advocates, and allow local land managers to do the same. Then, whatever the outcome, it cannot reverse their efforts in Washington. As Matt Mead, Wyoming’s Republican governor,