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Commentary: Governors’ ESA initiative aims to change the debate

Issue Date: March 23, 2016
By Jack Rice and Ethan Lane
Jack Rice
Ethan Lane
Programs such as the Sage Grouse Initiative, which has created 5 million acres of grouse habitat so far, has led to a 63 percent population increase in the past two years.

The federal Endangered Species Act isn't working. It doesn't work for species and it doesn't work for people. But things don't have to stay this way.

Recognizing a need and opportunity for change, Gov. Matt Mead of Wyoming is leading an effort through the Western Governors' Association, where states and stakeholders are sharing ideas about species management and exploring "ways to improve the efficacy of the Endangered Species Act." We believe this is the most productive conversation around the ESA and species conservation to occur in decades.

California farmers and ranchers know very well how the ESA threatens their livelihoods. Listings of the spotted owl, delta smelt, kit fox, fairy shrimp and some 303 other plant and animal species in California have resulted in a web of conflicting and counterproductive regulations. With more than 1,500 species listed nationally, and hundreds more currently under review by federal agencies, the ESA's impacts are expanding rapidly.

While new species are continually added to the list, rarely do any come off. Because litigation by activist groups has concentrated agency focus solely on listing new species, there is almost no budget or staff devoted to species recovery and delisting—two essential elements of a functioning ESA. This has resulted in a success rate of roughly 1.4 percent of listed species recovered—a failure by any standard.

To better understand how the ESA is failing, take a look at the sage grouse. Stakeholders, Western states, the Natural Resources Conservation Service and others have worked for years to recover this iconic bird through programs such as the Sage Grouse Initiative, which has created 5 million acres of grouse habitat so far. This has led to a 63 percent population increase in the past two years, which contributed to the U.S. Fish and Wildlife Service determining last fall that the grouse does not require ESA protection.

Unfortunately, that decision came with dozens of prescriptive Resource Management Plans and Land Use Plan Amendments for public land that in some cases are turning out to be worse than a listing. Beyond the onerous and ineffective restrictions imposed by the plans, the larger issue is that they serve as a de-facto ESA listing, without the benefit of a recovery plan or delisting mechanism. These new regulatory burdens are simply the new reality for producers in sage grouse country, and show that even when communities and stakeholders are effective in efforts to help species, the ESA still throws up a roadblock.

Regardless, public support for the ESA remains very high. This support, combined with the fierce defense of the act by environmental groups, results in a widely held belief that "ESA reform" is a political impossibility. But this doesn't mean it is impossible to have a constructive discussion about improving how the ESA functions for both species and people.

Recognizing these realities, Gov. Mead, who chairs the Western Governors' Association, is conducting a bipartisan dialogue called the Western Governors' Species Conservation and ESA Initiative. It involves a wide range of stakeholders including the oil and gas industry, agricultural groups, conservation groups, federal agencies, state agencies and local governments.

The initiative consists of webinars and workshops held throughout the West. The purpose is not to figure out how to roll back ESA protections, but to explore how to make the ESA more workable for people and more effective for species. Key themes emerging from the initiative include:

Litigation—Lawsuits impede efforts to help species. Though this opinion is not shared by environmental groups whose business is based upon ESA litigation, many other conservation groups recognize that litigation absorbs resources that would be better spent helping species and creates conflict that impairs collaboration.

Delisting—Species are not being delisted quickly enough. A species is protected as long as it is listed as endangered or threatened, even if the species is actually doing well and no longer under any threat. Failing to delist a species not only keeps restrictions in place that are not needed, but erodes stakeholder trust that good-faith efforts to improve conditions for species will result in regulatory relief.

Prelisting Conservation—For species and people, it is best if a species isn't listed in the first place. Keeping species off the list is the most flexible and efficient way to approach a species of concern. Resource managers focus increasingly on finding ways to keep species off the list, instead of trying to react once they are listed.

Collaboration—For decades, the ESA has been used as a tool for coercion. This approach has created conflict while doing little to improve conditions for species. Increasingly, conservation groups and government agencies realize that working collaboratively with landowners results in greater improvements at a lower cost.

The Western Governors' ESA initiative is a great opportunity to change the debate on this critical topic from one of failure and conflict to one of collaboration and success. Through real stakeholder engagement, curtailment of litigation abuse by outside interest groups, and innovative conservation strategies, we have an opportunity to protect species in need while also protecting our businesses and way of life—a win for families and rural economies throughout the West.

(Jack Rice is associate counsel for the California Farm Bureau Federation in Sacramento. Ethan Lane is executive director of the Public Lands Council and NCBA Federal Lands in Washington, D.C.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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