ESA Scrutiny


By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Although accused of doing so, the head of the U.S. Fish and Wildlife Service said Thursday his agency was not colluding with environmental groups when it comes to the Endangered Species Act.

There has been an outcry from farmers and ranchers in the West who say the federal government is overreaching and protecting species and their habitats, essentially assuming control of private land after the federal government strikes deals with litigants behind closed doors.

Dan Ashe, director of the U.S. Fish and Wildlife Service, told lawmakers during a subcommittee hearing of the U.S. House of Representatives Oversight and Government Reform Committee that his agency is trying to be proactive and avoid litigation. The subcommittee held two hearings on the Endangered Species Act on Wednesday and Thursday in Washington.

Ashe pointed to the successes of public-private partnerships in protecting the sage grouse as a sign of the changing times when it comes to the Endangered Species Act.

"It would be an ethical and legal violation," Ashe said about settlements. "There is no evidence to show that occurred. If it did, it would be a serious violation."

Lawmakers held the hearing to look at ways to improve the process to de-list endangered and threatened species.

The majority of species that are candidates for listing under the Endangered Species Act are found in Western states. However, many species are located in Corn Belt states including Nebraska, Kansas, Missouri, Iowa, Illinois and Indiana.

In the past week or two, USFWS republished a proposed rule to improve the petition process following public comment.

The latest proposed changes to the process include limiting citizen lawsuits to one petition per species, and to require petitioners to give a 30-day notice to states before official petitions are filed.


According to the USFWS, 63 species have been de-listed since the law went into effect 44 years ago. There are about 2,000 species listed. The reason is environmental groups have largely opposed efforts to de-list species although some are no longer in need of federal protection, he said.

"The list is getting bigger," Ashe said.

There is bipartisan support for ESA reform, but legislative efforts in recent years have been unsuccessful. Ashe told the subcommittee his agency could benefit from increased federal funding that would help improve the de-listing process.

Lowell Baier, an attorney from Bethesda, Maryland, and a lifelong conservationist and wildlife advocate, said during Wednesday's hearing that environmental groups have learned to take advantage of the specifics deadlines outlined in law.

"The outlier is a small set of fiercely dedicated and brutally effective special-interest litigants that have developed the capacity to serialize endangered species litigation and grind the entire endangered species program to a halt," he said.

Baier said the groups' effectiveness is best illustrated by a 2011 settlement between the Center for Biological Diversity and WildEarth Guardians, and the U.S. Fish and Wildlife Service.

The groups spent the better part of a decade "inundating the service" with deadline litigation that "diverted resources from actual conservation and sapped agency morale," Baier said.

The groups entered into a settlement that established 1,559 enforceable deadlines covering 1,030 species, subspecies and populations, as well as "outlining the entire Fish and Wildlife Service listing agenda" for five years, Baier said.

USFWS entered into the settlement to reduce the number of listing petitions and lawsuits it faced.

"But in the four-and-a-half years since the settlement was finalized," Baier said, "33 separate lawsuits have been filed against the service and other federal agencies by the two groups involved in the settlement specifically regarding species covered by the settlement, and a further seven cases have been filed by other groups attacking the settlement."

One particular case with the northern Rocky Mountain population of gray wolf, Baier said, shows where environmental groups stand on delisting.

The species was reintroduced beginning in 1995. A recovery plan deemed the wolf would be recovered when Idaho, Montana and Wyoming had a combined total of 300 wolves that includes 30 breeding pairs for three successive years.

"This goal was achieved in 2002 and has since been exceeded continuously," Baier said. "As of the Fish and Wildlife Service's Dec. 31, 2015, report, there were at least 1,704 wolves in 282 packs with 95 breeding pairs.

"For over a decade, the Fish and Wildlife Service has recognized that the population is recovered and should be de-listed, and it has taken steps in that direction numerous time. At every turn, the process has been halted by litigation."


Joel Bousman, a rancher from Boulder, Wyoming, and a county commissioner, told the committee that state and local officials need certainty that efforts to recover species are supported by all stakeholders.

"As many of us in the West have known for quite some time, when a species is put on the Endangered Species Act list, it's a bit like checking into the Hotel California," he said.

Bousman added, "At the county level, we do not deny the value of protecting truly endangered species. But it is troubling to see that for some the goal of the ESA appears to be permanent and perpetual listings rather than actual species recovery. It is equally troubling that the ESA itself has created a system that favors closed-door litigation over transparent cooperation with local governments."

The American Farm Bureau Federation estimates a cost of about $1.75 billion annually to protect species.

Ashe said Thursday that by the end of the Obama administration, more de-listings will have been made than by any other administration.

However, nearly 300 new species have been listed during the Obama administration. That includes more than 120 species listed as a result of sue-and-settle tactics.

Todd Neeley can be reached at

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