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The Unbearable Pressures of Endangered Species Protection

Scientists and conservationists are concerned that politics are unduly influencing the Fish and Wildlife Service. It’s time to protect the agency from its own worst impulses.

By Jimmy Tobias


A male sage grouse. (Photo: Snowmanradio/Wikimedia Commons)

Like an avian Archduke Ferdinand, the greater sage grouse has sparked a ferocious war of lawsuits, protests, and political wrangling in recent years. The plump bird, with its artful mating dance and awkward demeanor, roams some of the best wild land left in the American West. It also lives atop vast oil fields, coal deposits, and precious metal veins across the region and so its numbers have plummeted over the last half-century as the inevitable drilling booms and mining sprees, among other troubles, have decimated its range.

There was a lot on the line, then, when the United States Fish and Wildlife Service (FWS) debated last year whether the bird deserved Endangered Species Act, or ESA, protection. Back in 2010, the agency had concluded that the species warranted listing, though it refrained from doing so at that time due to higher priorities. When the new announcement came down in late September 2015, however, FWS had changed its mind. The answer was no.

To explain the reversal, officials pointed to long-term conservation plans that state and federal agencies have developed across the species’ range. The plans limit development around crucial grouse habitat and are meant to stave off the worst of the bird’s woes. Though untested and less stringent than full ESA protection, these plans are the official justification for the grouse decision.

But the official story isn’t the full one.

The grouse’s ESA candidacy, after all, faced immense resistance. Before the September announcement, oil, mining, and ranching interests waged a savvy pressure campaign — scare-tactic radio advertisements, relentless lobbying, lots of noise from right-wing politicians — to prevent a listing. Industry feared that ESA protection would increase regulation on Western lands and hamper the pursuit of profit.

“Congress set up the ESA to ensure that decisions made about endangered species management are made solely on the basis of science,” says Erik Molvar, a WildEarth Guardians staffer and staunch grouse advocate. “But today, it seems political expediency is the single greatest driver to determine which species get listed and which are denied protection.” Molvar points to the official conservation plans’ failure to fully implement the federal government’s own scientific reports and recommendations as evidence that industry pressure influenced the grouse outcome.

What the grouse case shows, above all, is how politically fraught endangered species conservation has become in our time. Efforts to protect imperiled animals increasingly feature fights that pit scientists and conservationists against industry and their allied politicians. There are, of course, bright spots: countless collaborative efforts and people of all ideological stripes trying to keep our most fragile species, including grouse, alive. But the backdrop of brutal politicking remains. In the middle of this sits the FWS. It’s in a tough spot, and it needs help. Is there a way to insulate the agency from the pressure cooker of wildlife politics? Is there a way to ensure its fidelity to science alone?

According to FWS literature, the ESA “requires species to be listed as endangered or threatened solely on the basis of their biological status and threats to their existence.” The agency is “required to base its listing decisions on the best scientific information available.”

Despite that clear legal mandate, the FWS’s own scientists believe that politics are unduly influencing agency conduct. Last October, the Union of Concerned Scientists released a report in which a whopping 73 percent of more than 800 agency scientists surveyed said political influence at FWS is too high. The UCS also collected a sampling of anonymous comments from agency scientists. The results weren’t pretty.

The “FWS has been ‘captured’ by the industries it is meant to regulate,” wrote one respondent. Another called political influence at the agency “very disheartening.” Still another offered insight into the way such influence manifests itself: “Senior management seem[s] to support science that supports the direction they want to go and [to] selectively interpret inconvenient science….”

FWS spokesman Kenneth Ostrand writes in an email that the agency appreciates the UCS’s engagement, but “[s]cience has always been and remains the foundation of the Service’s decision making.”

“I would say that there is a veneer of openness, but for the most part the decision making process is cloaked in secrecy.”

The UCS, though, has also monitored the Service’s administration of the ESA in recent years, and its findings are troubling. Consider the wolverine. In August 2014, the FWS declined to grant federal protection to the species, a ferocious member of the weasel family whose total population in the contiguous U.S. hovers somewhere around 300. Much like the grouse case, the 2014 determination represented a change of heart: it reversed a 2013 agency proposal that deemed the species threatened. What’s more, evidence has emerged that the agency did not adequately evaluate the best available science in dealing with the wolverine.

Last December, for instance, the UCS published on its website a 2014 memo from a high-level FWS scientist in Denver. The memo, obtained in a public records request, endorses a recommendation that “the wolverine listing be finalized as threatened” under the ESA. The memo justifies its stance based on two studies it calls “the best available scientific information” regarding the effects of climate change on wolverine habitat.

Despite this prominent endorsement, and despite the clear threat that climate change poses to the snow-loving species, the agency refused to federally protect the wolverine. Why? Listing determinations lack transparency, so it’s difficult to unravel the agency’s exact reasoning. Apart from leaks, information requests, or lawsuits, the public has little access to the agency’s exact formula for applying the ESA’s legal and scientific requirements.

“I would say that there is a veneer of openness, but for the most part the decision making process is cloaked in secrecy,” says Todd Tucci, a lawyer with Advocates for the West who has worked on ESA cases for 15 years. “We do not know how exactly they are making their determinations. The agency hunkers down, pulls the shades, and starts preparing a listing rule.”

Between the UCS survey, criticism from conservationists, and the sketchy grouse and wolverine decisions, it seems science and politics are struggling for supremacy at the FWS. The good news: There’s a potential solution on the table, one that might help the agency avoid the taint of politic influence, bolster confidence in its commitment to science, and further open its listing decisions to public scrutiny.

The idea, proposed by the UCS, among others, is simple: The FWS should convene panels of independent scientists to review the best available science and make a recommendation regarding each and every species being considered for ESA listing. Such panels would release their recommendation to the public so the American people can better evaluate decisions as they emerge. The agency has used such panels in the past, but they are not always empowered to make listing recommendations nor are they used consistently.

Independent scientific panels “would give the agency cover to make decisions based on science,” says Gretchen Goldman, an environmental engineer and analyst at the UCS. “Hopefully [FWS] would feel less pressure from outside sources to make decisions on a basis other than science.” Such panels, in other words, would be like nerdy little angels on FWS’s burdened bureaucratic shoulder.

The agency did, in fact, convene a scientific panel in the wolverine case, though that panel did not make any kind of recommendation about the species’ ESA eligibility. Instead, it reviewed scientific data and, in a final report, expressed “cautious optimism for wolverines in the short term,” but, crucially, “pessimism for the long-term … future of wolverines in the contiguous” U.S. due to threats from climate change.

The panel’s work had consequences — it helped convince a federal judge this month to vacate the FWS’s wolverine decision. Dana Christensen of the U.S. District Court of Montana, in a bombshell ruling, called the agency’s handling of the species “arbitrary and capricious” and speculated aloud why it had pulled back on federal protection in 2014. “Based on the record, the Court suspects that a possible answer to this question can be found in the immense political pressure that was brought to bear on this issue, particularly by a handful of western states,” he wrote.

An annoyed FWS, in a statement to E&E News, said it was “very disappointed” with the ruling and denied that politics had played a role in its work with Gulo gulo.

Meanwhile, the sage grouse clash still rages. After the FWS decided not to list the bird, mining interests and a number of Western states, never satisfied, sued to weaken the collaborative federal conservation plans that are the species’ last remaining hope for survival. And since there’s no day without night, environmental groups filed their own lawsuit in February, arguing that the federal plans, if they are to truly embody the best available science, must, in fact, be made stronger.

We’ll see who wins — and which species survive.