The Endangered Species Act (ESA), probably the most powerful of environmental laws, has been spectacularly ineffective in its stated goal of aiding recovery of species in danger of extinction. In spite of nearly 30 years operation, in spite of billions of dollars spent on implementation, administration, and mitigation, the total number of species recovered due to ESA is exactly zero. 

There are currently more than 1,200 species listed as "threatened" or "endangered," and over the years, about 30 species have been delisted, but not because they benefitted from ESA. According to a 1998 report by the National Wilderness Institute, seven species became extinct, four were later determined to not be real species, 10 were originally listed based on bad data, and others were removed because they benefitted from actions unrelated to ESA. 

The cost of ESA goes beyond dollars. We have witnessed the virtual elimination of timbering on federal lands and the death of communities which depended on logging. Millions of acres have been put off-limits to grazing, mining, farming. The ESA is so powerful that even fraudulent data was sufficient to ruin many Klamath farmers when water was denied them due to an alleged danger to listed species. The ESA contributed to the death of fire fighters because Forest Service officials were worried about taking water from a stream that might harbor an "endangered" fish. The sad condition of our national forests and the devastation of raging wildfires is attributable to ESA’s affect on management decisions within federal agencies, and delays caused by hundreds of lawsuits by radical enviros. The ESA is even threatening the ability of our military to properly train. 

ESA has a profound effect on private property. Woe to anyone who has or might have an "endangered" species on his property. As Richard Stroup points out in, Endangered Species Act: Making Innocent Species the Enemy, (PERC Policy Series, PS-3, 1995), "It is ironic that the Constitution explicitly forbids the U.S. Army, even in the name of national defense, from requiring that a citizen quarter a soldier (that is, provide food and shelter for a soldier). Yet the government can require the same citizen to quarter a grizzly bear, a spotted owl, or any other member of a threatened or endangered species, at the landowner's expense." The ESA is administered as an "absolute" law, holding precedence over all other land usage and in the process "taking" private property rights. The Fish & Wildlife Service (USFWS), which administers ESA, could regard the entire country as critical habitat for something because there is no incentive not to, and to do so, just increases their power. This lack of accountability is a recipe for abuse by a bureaucracy run amok. The result is that property owners regard endangered species as enemies and consciously manage their land, when they can, to eliminate or discourage a species’ presence. 

A current example of ESA folly concerns the Southwestern Willow Flycatcher and the Salt River Project in Phoenix. It illustrates both the power and lack of common sense in ESA administration. This flycatcher (Empidonax traillii extimus) is a subspecies not recognized in the two major birding books: Roger Tory Peterson’s Field Guide to Western Birds (1990 edition); and The Sibley Guide to Birds, published by the National Audubon Society (2000). The Salt River Project (SRP) is a series of reservoirs, one of which is Roosevelt Lake, that supply water to and generate electricity for the Phoenix area. 

According to the Albuquerque Journal, "As recently as 1995, the year the flycatcher was declared endangered, there were only 55 of them reported at Roosevelt Lake. But over the drought of recent years, the lake has dropped to 20 percent of capacity, leaving behind an exposed reservoir bottom that apparently appeals greatly to the brownish-olive, insect-eating birds. >From late April to July or August, an estimated 263 southwestern willow flycatchers call the exposed Roosevelt Lake bottom home. That's where the Endangered Species Act kicks in. Because the endangered birds like the reservoir bottom, SRP can't cover it with water. [Although the habitat is man-made], it's endangered species habitat now, not an important water storage facility. To regain the use of its reservoir, it is estimated SRP will have to acquire some 1,000 acres of suitable habitat to offset Roosevelt Lake" at a cost of $10- to $20 million that will be passed on to SRP water and electricity customers. 

ESA has been a boon to lawyers and to radical enviros bent on forcing social change. As Tom Knudson, an investigative reporter for the Sacramento Bee, points out in a special series of five articles (see www.sacbee.com/static/archive/news/projects/environment/20010422.html), Suing the government has long been a favorite tactic of the environmental movement -- used to score key victories for clean air, water and endangered species. But today, many court cases are yielding an uncertain bounty for the land and sowing doubt even among the faithful. 

"We've filed our share of lawsuits and I'm proud of a lot of them," said Dan Taylor, executive director of the California chapter of the National Audubon Society. "But I do think litigation is overused. In many cases, it's hard to identify what the strategic goal is, unless it is to significantly reshape society." The suits are having a powerful impact on federal agencies. They are forcing some government biologists to spend more time on legal chores than on conservation work. As a result, species in need of critical care are being ignored. 

The crush of cases is prompting some lawyers and government officials to speculate that the suits could be motivated, at least in part, by money. Under federal law, an attorney who wins an environmental "citizen suit" against the government is entitled to an award of taxpayer-funded attorney fees. 

During the 1990s, the government paid out $31.6 million in attorney fees for 434 environmental cases brought against federal agencies. The average award per case was more than $70,000. One long-running lawsuit in Texas involving an endangered salamander netted lawyers for the Sierra Club and other plaintiffs more than $3.5 million in taxpayer funds. 

But most of the suits don't hinge on the science of endangered species -- they're based on statutory deadlines. When Congress passed the Endangered Species Act in 1973, lawmakers filled it with deadlines to force bureaucrats to make timely decisions. When the Fish and Wildlife Service fails to meet those deadlines, which is often, it can be sued. 

Tucson’s Center for Biological Diversity (CBD) has made a cottage industry of suing federal agencies over missed deadlines. CBD has filed more lawsuits over ESA than any other group, averaging about one suit per month since 1994. 

"A missed-deadline case is like shooting fish in a barrel," said [Gregory] Thomas at the Natural Heritage Institute. "Anybody can bring such a case. Anybody can win such a case. The question is, having won it, have you advanced a broader strategic solution?" 

But it's not missed-deadline cases that are stirring up the most conflict. It's another category of lawsuit that seeks to secure "critical habitat" for species listed as federally threatened or endangered. Critical habitat is defined as habitat essential to the survival and recovery of a species. 

"Critical habitat does not add a lot of value and -- in many cases -- almost no value to the conservation of species," said Michael Spear, head of the California-Nevada office of the Fish and Wildlife Service. 

But to CBD, critical habitat has a near-magical power: to halt development, logging and other activity on land not occupied by endangered species but "critical" to their recovery. The idea is that species could eventually re-colonize such areas, or at least pass through them during migration. 

Bad science has characterized species listing under ESA. For instance, in southern Arizona, the listing of the pygmy owl ignored its abundance in its core area of Mexico and South America. Arizona riparian areas represent a fringe habitat. The owl’s true riparian habitat has not existed in Tucson for 100 years, and the little critters now seem to favor suburbia. While core habitat may deserve protection, splinter groups in peripheral areas are ephemeral and need not receive special attention to preserve the species. 

The bad science is abetted by the definition of "endangered species" in the Act itself: "any subspecies of fish or wildlife or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when mature." This definition causes certain subspecies, such as the pygmy owl, to be legally listed as "endangered" when in fact, it is not. 

Congress has attempted, over the years, to modify the most egregious aspects of ESA. The latest attempt is H.B. 4840, The Sound Science for the Endangered Species Act Planning Act of 2002, which passed out of the House Resource Committee in July. This bill requires the federal government to rely on field-tested and empirical data in making major decisions under the Endangered Species Act, including the listing of species and determinations regarding critical habitat. It also establishes a higher scientific threshold for petitioners wishing to list a species. There must be clear and convincing evidence the species is in peril. The bill requires that science used in major ESA decisions be peer-reviewed by a panel of scientists. Finally, the bill requires the federal government to take into an account the impact of an ESA mandate on the economy of a region. 

That’s a start, but other reforms are needed. The Competitive Enterprise Institute recommends repeal of ESA and that Congress replace the existing compulsory, regulatory act with a voluntary, non-regulatory, incentive-based act; that Congress prohibit government taking or regulating private property without adequately compensating the property owners; and that we develop mutually compatible, voluntary, contractual arrangements with the landowner to protect habitat on private lands. 

An amended ESA or its replacement should also include provisions for damages resulting from fraudulent listings, and provisions that plaintiff environmental groups pay legal fees and damages if they lose a frivolous suit. We should limit the ability to sue over statutory deadlines. Above all, there should be accountability from government agencies, their employees, and from environmental groups. 

Currently, there are1,261 U.S. species listed as threatened or endangered (517 animals and 744 plants). Of the animals, many are invertebrate: 32 snails, 44 insects, 12 arachnids, 21 crustaceans, and 70 clams - no warm and fuzzy critters here. There are 259 "candidate" species waiting for disposition, and 31 animals and 6 plants proposed for listing. There are 155 areas in the U.S. designated as critical habitat, and 981 approved recovery plans according to USFWS. 

We can’t save everything, and shouldn’t try because extinction is part of nature. About 98% of species that have lived on this planet are extinct. The way that ESA has been used does not benefit "endangered" species. Even many enviros admit that the object is not saving species, but control of the land. It’s time for to retire the ESA and replace it with sound science, sound economics, common sense, and respect for private property rights.