Reforming the Endangered Species Act

“. . . passed in a blind surge of piety, the Endangered Species Act represents no considered judgment on the worth of the nation’s natural heritage, nor a debate on the means for achieving its protection.” C. Mann & M. Plummer (1995).39

Tracy Warner, citing figures provided by Ike Sugg of the Competitive Enterprise Institute, recently summarized the accomplishments of the Endangered Species Act:


“Since the law was enacted, 1,037 plants and animals have been listed for protection, and many more have been considered. Of those, the U.S. Fish and Wildlife Service has removed only 27 from the list. Seven of those species removed are extinct. Nine were removed because corrected ‘data errors’ showed that they were so numerous they were not threatened and should not have been listed in the first place.

“Eleven species are healthy enough for the ‘recovered category’, but at least four came about with the discovery of significant populations unknown at the time of the listing. Another, the American alligator, is a hardy species that many scientists agree was never endangered.

“Three other ‘recovered’ species are kangaroos, which are numerous and have no habitat in U.S. jurisdiction. Two others, the brown pelican and the peregrine falcon, were endangered primarily because of the effects of the pesticide DDT, which was banned the year before the Species Act was passed. The last ‘recovered’ species, the California gray whale, was saved by international bans on hunting and the protection of breeding waters by the Mexican government.”40

In short, there is not one since species that has been brought back from the brink of extinction by the Endangered Species Act in nearly twenty-five years of operation. Even for government, that is an impressive record of failure. Despite lofty intentions, in practice the Act is merely a tool for stopping actions that may affect the species, without regard for the magnitude of any benefits obtained.


There are many studies of how to reform the Endangered Species Act. One of the most thoughtful, by Charles Mann and Mark Plummer, Noah’s Choice: The Future of Endangered Species, acknowledges that “the time has come to question the goal that underlies the act: Save every species, no matter what the cost”.41 From their perspective, “demanding the perfect can prevent us from obtaining the merely good”,42 which is precisely what is happening in the Columbia River Basin. Because we demand to stop any stock from extinction, we prevent the general promotion of healthy salmon runs.


Mann and Plummer think we need to separate decisions about listing species from decisions about what to do once the species are listed. The list itself would be merely “an information device, signaling the identities of species with special conservation needs”.43 A critical part of reform is scaling back the “taking” of endangered species that is forbidden under all circumstances. A minimal definition could prevent intentional, direct harm of an individual member of a listed species; federal agencies should gain authority to balance actions to protect endangered species with other legislative goals.44 Mann and Plummer recommend coupling these changes with a national trust fund for direct improvements to endangered species habitat, akin to the restoration trust once promoted for the Columbia River.


We also need to re-think just what it is about salmon that we are protecting with the Endangered Species Act. As noted above, anti-dam tracts warning that hundreds of “salmon species face extinction” are simply wrong,45 if "species" is given its biological meaning. There is no chance that the world will lose the Snake River salmon “species”—Oncorhynchus tshawytscha (chinook) and Onchorhynchus nerka (sockeye)anytime soon. Indeed, most of the fish listings that are now front-page news in the Pacific Northwest involve biological species in no danger of disappearing. For example, there are at least seven large groups of bull trout in the Northwest; the Columbia River Basin group, likely to be listed as endangered, includes some 386 distinct stocks, many of which are in no danger at all.46


Right now, the Endangered Species applies with full force to “any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature".47 (For some reason, we only expand the Endangered Species Act’s protections for creatures with bones.) What is a "distinct population segment"? Congress did not bother to define the term, so it means whatever a federal official wants it to mean. The choice is inherently arbitrary. Under the Endangered Species Act, the federal government could make it a federal crime to kill mice in your house, because the mice in your house are a "distinct population segment that interbreeds when mature."


One environmental reporter concluded that “listings are based on increasingly lenient criteria and now may be registered even when a creature is numerous”.48 A Canadian biologist offered one reason for this phenomenon: “[e]ndangered species lists have been needlessly inflated with taxonomically described subspecies to increase alarm and therefore program funding”.49 In the Pacific Northwest, this effort has reached its zenith, with the largest program funding in the world directed at the smallest of population groups: "distinct population segments" of Snake River salmon.


If Noah had applied the current federal standards for "species" protection, his Ark would have sunk under the weight of functionally-identical animals. Pacific Northwest salmon recovery efforts are sinking too, as the larger and worthy goal of having more salmon in the rivers is subordinated to enormous efforts to protect the genetic purity of tiny individual salmon stocks. The absolutist approach of the Endangered Species Act makes no sense in the context of dynamic salmon metapopulations with common genes.


At the least, Congress ought to recognize that we should not list endangered "species" that we are going to harvest directly. This is bad government. Yet such a reform can come only from the people. None of the institutions have a stake in fixing it; their agencies are growing in power and influence and they are gaining media exposure.


Indeed, no one at present is seeking any useful reform of the Endangered Species Act insofar as salmon are concerned. Idaho Senator Dirk Kempthorne is leading efforts to amend the Act, but he seems only interested in protecting Idaho’s Southern irrigators and private landowners. His proposed Act would simply give the federal government even broader and more unreviewable powers, blindly expanding the legal obligation to recover endangered species. No one, not even the National Endangered Species Act Reform Coalition, is pressing Congress to reform the  7 consultation process that fish and wildlife agencies misuse to extort funding from other federal agencies.


Congress may well be institutionally incapable of actual reform. Members of Congress are “free to wax rhetorical about the value of the environment while refusing to back necessary increases in the budget for protection”.50 The history of salmon law is a history of layering more and more inconsistent statutes on top of each other, when what is needed is a thorough housecleaning.


39 C. Mann & M. Plummer, Noah’s Choice: The Future of Endangered Species 218 (A. Knopf 1995).

40 T. Warner, “The Endangered Species Act is simply a failure”, The Wenatchee World, Dec. 8, 1996.

41 C. Mann & M. Plummer, Noah’s Choice: The Future of Endangered Species 215

42 Id.

43 Id. at 225.

44 Id. at 226-27.

45 K. Peterson, River of Life, Channel of Death: Fish and Dams on the Lower Snake 5 (Confluence Press 1995).

46 J. Brinckman, “Agency says bull trout deserve to be listed”, The Oregonian, Mar. 14, 1997.

47 16 U.S.C. 1532(16).

48 G. Easterbrook, A Moment on the Earth 568.

49 R. McFetridge, “Commentary on Taxonomic Uses and Abuses in Wildlife Law”, Alberta Game Warden 14 (Winter 1994).

50 Id. at 232-33.

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