Our Voice: Bladderpod controversy reinforces need to reform Endangered Species Act

August 11, 2013 

At 40 years old, the Endangered Species Act of 1973 is in dire need of a mid-life makeover.

This well-intentioned law gives the federal government nearly unlimited power to regulate the use of private lands in the name of protecting endangered species.

But as decades of experience show, the act is neither as effective nor as fair as it needs to be.

Kudos to Columbia Basin farmers for helping draw attention to the need for reform. Their fight against efforts to put the White Bluffs bladderpod on the endangered list has brought the act's flaws into sharp focus.

The potential impact is small compared with other listings. The plant's endangered species status would have made critical habitat out of 2,861 acres along the Columbia River in Franklin County, mostly on federal land. Just 419 acres of private land was to be included.

If it's your farm that's affected, the parcel doesn't seem so trivial, but compared with other restrictions enacted to protect endangered species, it's not much.

After years of legal battles, the Northern subspecies of spotted owl came under the Endangered Species Act in 1990, leading to a federal court ruling in 1991 that closed much of the Northwest woods to logging.

By the end of the century, timber harvest on 24 million acres of federal land had dropped 90 percent from its peak. Logging communities still haven't recovered from the ensuing economic devastation.

The spotted owl is the most glaring example of the nearly unlimited power the act gives the U.S. Fish and Wildlife Service to regulate the way land is used.

"In other laws, federal agencies are required to provide protection 'where practicable', " wrote Boise Statesman reporter Rocky Barker in his book, Saving All the Parts: Reconciling Economics And The Endangered Species Act.

But the act "elevated protection of all species to one of the U.S. government's highest priorities," Barker concluded. This protection is "absolute. No equivocation."

The spotted owl is not only an example of the sweeping power the act gives the federal government. It's also a clear illustration of its limitations.

Spotted owl populations in parts of Washington are half what they were in the 1980s. So few birds remain in British Columbia that the provincial government plans to cage the last 16 known wild spotted owls and try to breed them in captivity, Smithsonian magazine reported. "In certain parts of its range, the spotted owl is circling the drain" Dominick DellaSala, chief scientist of the National Center for Conservation Science & Policy, told the Smithsonian.

That's not an anomaly. Less than 1 percent of the species ever listed as endangered have recovered well enough to be taken off the list.

But the controversy over the bladderpod highlights some problems with the act that may be less obvious than its lack of effectiveness.

The bladderpod's saga raises serious questions about the way litigation takes precedence over science in deciding which species need protecting.

Adding the bladderpod to the list was part of a settlement agreement between the Center for Biological Diversity and the U.S. Department of the Interior that covered 779 species.

We haven't looked into the other 778 species, but it's far from certain that the bladderpod is endangered.

Mid-Columbia farmers paid for their own DNA study on the White Bluffs bladderpod to show it grows in areas outside of Franklin County, making it more common than Fish and Wildlife said.

The study, conducted by a University of Idaho agronomist, found that the White Bluffs bladderpod was the same species as bladderpods found in five other Washington counties, as well as Oregon and Idaho. Fish and Wildlife contends that the White Bluffs bladderpod actually is a subspecies of the more common Douglas' bladderpod.

That's well beyond our area of expertise, but we'd find the government's position a lot more credible if scientists instead of lawyers were behind it.

We don't expect the lawyers to pack up their bags anytime soon, however. Litigation is just too rewarding. According to U.S. Rep Doc Hastings, the Center for Biological Diversity has collected more than $2 million from taxpayers to cover its legal fees.

Saving species from extinction is a worthy goal, but the Endangered Species Act has a terrible track record in accomplishing that goal. Decisions are made with flimsy scientific justification, and at a high cost to taxpayers and private landowners.

Lessons learned over 40 years can inform efforts to revisit the law, resulting in revisions that are fairer and more effective. It would be a win for everyone but the lawyers.

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