ESA Reform Bills Target “Perverse Incentives” Of Litigation, Restricted Land-Use
The House Natural Resources Committee today heard testimony on a package of five bills aimed at reforming the Endangered Species Act by promoting greater state and federal cooperation and eliminating other “perverse incentives” like excessive “sue-and-settle” litigation and land-use restrictions that threaten economic and resource development in the West.
Kent Holsinger, founder and manager of Holsinger Law, LLC, a Denver-based law firm specializing in land, wildlife, and water law told the committee it was time to update the ESA, which had moved on from protecting species in a cooperative manner between states and the federal government into a frenzy of “listing through litigation” by non-governmental organizations.
“ESA listing decisions are frequently made without full cooperation of state and local governmental entities. As a result, listing decisions often fail to take into account the best sources of information on the species,” wrote Holsinger in prepared testimony. He pointed to the Gunnison sage grouse listing in Colorado, wolf reintroduction in New Mexico, and the regulation of prairie dogs in Utah as examples of a pattern of “failure to involve state and local governments and to incorporate state and local input.”
“Currently, federal agencies are subject to statutory time frames for reviewing listing petitions and making determinations,” Holsinger wrote. “Rather than guiding and expediting the listing process, however, these time frames instead become the tool of litigious activist groups seeking to push their own agendas while recovering litigation costs. In fact, these groups often cause the issues they subsequently litigate,” he continued.
Interior Secretary Ryan Zinke signed an agency order last month to review state and federal conservation management plans for the sage-grouse across 70 million acres spanning eleven Western states and encourage interagency and state and federal government cooperation.
“While the federal government has a responsibility under the Endangered Species Act to responsibly manage wildlife, destroying local communities and levying onerous regulations on the public lands that they rely on is no way to be a good neighbor,” announced Secretary Zinke on June 9. “State agencies are at the forefront of efforts to maintain healthy fish and wildlife populations, and we need to make sure they are being heard on this issue.”
“As we move forward with implementation of our strategy for sage-grouse conservation, we want to make sure that we do so first and foremost in consultation with state and local governments, and in a manner that allows both wildlife and local economies to thrive,” said Zinke.
Elected officials across the West welcomed Zinke’s plan to review sage grouse conservation plans. Governors of several states – Wyoming, Colorado, Idaho, Montana, Nevada, and Utah – plan to participate in the two-month review.
Wyoming receives approximately three-fourths of its income from oil, gas, and coal, with half of the state’s surface and mineral rights residing on federal lands, while also providing key habitat for the sage grouse.
But a “massive and numerous” spike in the number of petitions for other species has driven up the U.S. Fish and Wildlife Service’s (FWS) workload, drawing more lawsuits from groups like WildEarth Guardians and the Center for Biological Diversity.
“Over the past several years, a small cadre of environmental groups has buried the FWS with listing petitions under the ESA. WildEarth Guardians (“WEG”), the Center for Biological Diversity (“CBD”), and their like have a long history of filing both numerous and onerous listing petitions. For example, in 2007 WEG submitted two petitions seeking to list 475 Southwestern species and 206 species in the Mountain-Prairie Region. A 2013 petition sought to list 81 marine species. CBD petitioned to list 404 species in a single 2010 petition,” Holsinger wrote.
The number of “sue-and-settle agreements had quintupled during the Obama administration compared to previous administrations,” Holsinger continued, creating “perverse incentives” that move the ESA away from conservation and toward regulatory burdens that demonstrate, according to Holsinger, “a clear lack of coordination with state and local governments; a failure to designate recovery goals within set timeframes; the failure to economically incentivize private conservation; and a tendency to allow sue-and-settle litigation.”
The result is that “ESA listings often restrict the ability to manage for species and could even result in more harm than good,” wrote Holsinger.
David J. Willms, policy advisor to Wyoming Gov. Matthew Mead, agreed with Holsinger’s assessment on current ESA provisions inviting litigation that harms ESA implementation.
“For example, the current structure of section 4 of the ESA invites uncontrolled procedural and legal gambits intentionally designed to cripple the FWS’s ability to implement the ESA. This in turn erodes support from many of the stakeholders necessary for species conservation,” Willms wrote in prepared testimony.
Current ESA procedures are undermining the ESA’s express purpose, and amending that process, Willms wrote, would eliminate the strain on FWS review of listing petitions. “These deadlines are the source of the greatest acrimony in ESA implementation. However, they are not sacrosanct,” Willms wrote.
“We should not allow two groups to dictate the policy of an entire agency because we are afraid to acknowledge and address the problem,” Willms continued. “After 35 years, let us admit that the politically motivated deadlines in section 4 have outlived their usefulness. In addition to the problems discussed above, the compressed deadlines discourage innovative and voluntary conservation, and may limit FWS access to valuable scientific data that could otherwise inform a listing determination.”