Bush Administration: Legal Avalanche Threatens 'Endangered Species'

By Steve Brown | July 7, 2008 | 8:21 PM EDT

(CNSNews.com) - Six years of lawsuits and court orders will soon mean that the U.S. Interior Department's Fish and Wildlife Service runs out of money to designate habitats for endangered species, according to Craig Manson, assistant secretary of the Interior for Fish, Wildlife and Parks.

Interior Department spokesperson Hugh Vickery said the Endangered Species Act (ESA) requires that a critical habitat (CH) designation be made at the same time any species is placed on the endangered species list. "This provision has generated a flood of litigation that is doing species' harm," Vickery said. The critical habitat designation, he added, "does not add a lot" in protecting species because it "duplicates other habitat protections in the law."

Historically, Vickery said, the agency has not made CH designations when species were placed on the endangered list because it was not considered "prudent." However, a 1997 court ruling found that the agency's failure to make the CH designation violated the ESA.

"That really opened the floodgates" of lawsuits, said Vickery, who added that a majority of the suits are filed by environmental activists. Other lawsuits, he said, come from landowners and developers whose land has been designated a critical habitat.

Vickery said the requirements that the Fish and Wildlife Service prepare detailed maps of species' habitats, provide time for public comment and complete economic analyses for the CH designation, all under deadline, sap the agency's resources.

Congress needs to "modify" the ESA by putting CH designations in the recovery phase of conservation under ESA and out of the listing phase, Vickery said.

"Right now the law is requiring FWS (Fish and Wildlife Service) to determine the habitat needs of the species at the point ... when it doesn't have the scientific information needed, and it puts very stringent deadlines on doing so," Vickery said. "Whereas the information is developed that they need on that habitat in the process of coming up with the recovery plan, which occurs later in the process ... that would be a more appropriate time to address that issue."

Environmental activists disagree with the agency's analysis of CH designations.

Susan Holmes, a legislative representative for the environmental activist group, Earthjustice, told the Seattle Times Thursday that, "The designations protect those places where the species need to recover and need to expand."

"It's a basic concept," she said, adding, "The Bush administration from day one has been hostile to the Endangered Species Act."

But Vickery responded that both Bush and Clinton administration officials have testified before Congress that the CH provision, as mandated by ESA, "is not an effective way to undertake this conservation."

Vickery said "it is very time consuming and labor intensive" and diverts biologists "who could be working on higher priority activities" such as recovery and placing some of the 259 species currently in line on the endangered list.

"It's very frustrating for these [biologists], who love endangered species and want to conserve them," Vickery said. "It takes discretion out of the hands of professionals and puts it in the hands of judges and lawyers.

"These are smart people who could make a lot more money doing something else and they're out there doing this out of a labor of love, but instead of being able to use all of that training they have to be making decisions about what needs to be done (for conservation) they have court orders telling them to go make CH designations and they're starting to pull their hair out," Vickery said.

As far as coming up with the critical habitat designations, "It doesn't take rocket science," Kieran Suckling, executive director of the Center for Biological Diversity told the Washington Post Thursday. "It takes a little bit of money."

But according to the Interior Department, such designations cost an average of $400,000. Vickery said if the Fish and Wildlife Service were to fulfill all of the current court-ordered CH designations, it would "eat up the entire FSW budget until 2008."

Brian Kennedy, spokesperson for Rep. Richard Pombo (R-Calif.), chairman of the House Resources Committee said the environmentalists were using "the signature scare-tactics they've used for the last three decades" as a "tool for self-preservation, fundraising and to keep their paychecks coming in."

Kennedy said Pombo has tried on "many occasions" to amend the ESA to add "sound science" to the CH designations and species-listing provisions, but has met with stiff resistance from opposing lawmakers and environmental organizations.

"If the focus is changed" and CH designations are moved with "the focus on recovery and protection instead of just hyperbole and litigation, we can really get some things done in recovering species, but the CH designations record is abominable," Kennedy said.

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