News from the Front #59:

NMFS Official Admits Bogus ESA Analyses

All power tends to corrupt; absolute power corrupts absolutely" (Lord Acton)

Section 7 consultations occur when a federal agency plans to take action that "may affect" salmon, and asks the National Marine Fisheries Service (NMFS) for an opinion as to whether the action will jeopardize the continued existence of the "species".  16 U.S.C.  1536(a)(2).  The Endangered Species Act also charges NMFS to identify "critical habitat" for listed salmon, that is, "specific areas . . . on which are found those physical or biological features (i) essential to the conservation of the species and (ii) which may require special management considerations or protection".  16 U.S.C.  1532(5)(A).  In its typical ham-handed approach to limiting government power, Congress specified that "critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species" -- "[e]xcept in those circumstances determined by the Secretary".  16 U.S.C. 1532(5)(C). 

Recent litigation has produced a revealing  e-mail from Donna Darm, a high-ranking official at the Northwest Regional Office of NMFS.  (She served as Acting Regional Administrator before President Bush appointed a new Regional Administrator).  Stuck on a "REALLY long plane ride to Anchorage" in 1998, she took the time to set forth her thoughts on NMFS' implementation of the Endangered Species Act at some length in the course of commenting on a colleague's paper.  

Among several interesting observations, which may be downloaded here, is a blockbuster:

". . . when we make critical habitat designations we just designate everything as critical, without an analysis of how much habitat an ESU needs, what areas might be key, etc.  Mostly we don't do this because we lack information.  What we really do is the same thing we do for section 7 consultations.  We just say we need it all."

These are remarkable statements, remarkable for blinding truth of a nature rarely seen in government documents.  What Ms. Darm is admitting is that NMFS routinely demands that all habitat occupied by a listed species be called "critical", whether or not it is critical.  And she is admitting that NMFS routinely demands that other federal agencies do exactly as NMFS demands in interagency consultations, without regard to actual effects on listed species:  "We just say we need it all".  

How can NMFS get away with this?  Certainly the other federal agencies won't stop them.  As the Supreme Court  recently explained, another agency "is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for 'any person' who knowingly 'takes' an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment."  Bennett v. Spear, 520 U.S. 154 (1997).  As a practical matter, NMFS can force other federal agencies to do whatever suits the desires of its utopian conservation biologists.  

No public outrage arises, because no one knows what is really going on.  It is a miracle is that a document like this got released at all.  In their endless effort to uphold the more and more unreasonable decisions of our ever-expanding government, the federal courts have invented a special right for government agencies to withhold documents that would tend to embarrass them.  (Ordinary citizens do not get this privilege.)  The Supreme Court justifies this by declaring that "it would be impossible to have any frank discussions of legal or policy matters in writing if such writings were to be subjected to public scrutiny".  EPA v. Mink, 410 U.S. 73 (1972).  

Thus the "frank discussions" need not be revealed, only the documents that are carefully crafted to put the best light on agency decisions.  And so the public sleeps on, imagining all the while that federal bureaucrats faithfully implement the law.  

James Buchal, November 19, 2001

You have permission to reprint this article, and are encouraged to do so. The sooner people figure out what's going on, the quicker we'll have more fish in the rivers.

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