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Players In Endangered Species Act Enforcement Become As Important As The Law

The Interior Department has announced plans to withdraw temporarily "critical habitat" designations for 19 different species of salmon and steelhead throughout the West. The March revelation came in the context of a federal judge's decision to order economic impact analyses of the critical habitat designations. Greeted with predictable boos from environmentalists and cheers from builders, the move could make it easier to develop raw land throughout California. Much of the Central Valley, for example, had been designated as critical habitat because of its proximity to streams and rivers that affect anadromous fish. The Bush Administration's critical habitat move is subject to approval from U.S. District Court Judge Colleen Kollar-Kotelly, who ordered the economic impact analyses. Environmentalists complain that it is part of a Bush Administration trend compromising on critical habitat designations rather than fighting builder-backed lawsuits over the Endangered Species Act. In fact, the recent move reveals an important trend in species protection: The Interior Secretary's interpretation of the Endangered Species Act and, in particular, her approach to litigation has become more important in determining the law's impact than the words contained in the law itself. To many longtime activists in the species arena, this is something of a surprise. After all, the Endangered Species Act has often been characterized as the single strongest and most inflexible environmental law ever passed in the United States a law that contains no trap doors or escape valves, and one that has not been significantly amended by Congress in 20 years. This is part of the reason why the law has been so important in California land use battles. The parochial debates over whether to develop property or not are instantly trumped by the listing of an endangered species, meaning that biologists from the U.S. Fish & Wildlife Service essentially function as regional land-use czars when species issues are at stake. Partly because amending the law seems so difficult, however, interpretation of the law has become more important. Both sides put a lot of effort into getting the Interior Secretary to interpret the law the way they want it interpreted. And this is an approach that began not with Republicans but with Democrats. Almost a decade ago, during his confirmation hearings as President Clinton's Interior secretary, Bruce Babbitt pleaded with the Senate to allow him to enforce the Endangered Species Act as it was then written. The law had just begun to impede growth on private land in Southern California and elsewhere, and Congress was under increasing pressure from developers and others to consider weakening the law so that economic concerns could be taken into account. In the face of such pressure, Babbitt asked the Senate to confirm him and give him the chance to use the Southern California species effort which has since come to be known, under California law, as Natural Communities Conservation Planning (NCCP) to show that the law could work as written. In other words, he asked for leeway in interpreting the law because he feared that otherwise Congress would weaken it. Nine years later, Bush's Interior secretary, Gale Norton, is seeking leeway in interpreting the law not out of fear that the law will be changed, but, rather out of fear that it won't. Today there is a Republican president, a Republican House, and a narrow Democratic majority in the Senate that emerged only after four years of Republican rule. Yet not one word of the Endangered Species Act has been changed since Babbitt appeared before Congress, and the likelihood that substantial legislative change will occur in the foreseeable future is nil. Needless to say, Norton has a different approach to species protection than Babbitt did. Without little chance of weakening the law, she is looking for other ways to push her agenda. So she appears to be looking to her own independent authority, which under the federal system is considerable. She can determine how to approach litigation, and she can use budget proposals as policy tools. Norton and her policy chief, former Reason Public Policy Institute president Lynn Scarlett, have advocated an approach that relies less on regulation and more on stewardship by private landowners who would be induced by government financial incentives to do the right thing. They call this approach "Citizen-Centered Conservation," and the proposed 2003 Interior budget proposal includes $100 million for the "Cooperative Conservation Initiatives," which will provide grants to communities to protect species, and $60 million for the Landowner Incentive and Private Stewardship program, which provides direct payments to landowners. Environmentalists have excoriated this approach as a sellout to Western landowners, just as they excoriated both Norton and Scarlett as anti-environmentalists when they were appointed. (The environmentalists did agree to halt the Norton-bashing after 9/11, when she had to make hard decisions about security at national parks and national monuments.) Both Norton and the environmentalists throw the word "citizen" around a lot in discussing their approaches to environmental protection, but the environmentalists appear to have a different view of citizens' role in the species protection process than Norton does. Last year, they hammered her for attempting as part of the Interior Department budget bill to suspend some portions of the species law that permit private citizens to petition the secretary to consider listing an endangered species. The citizen-driven listing process has always been a controversial part of the law. In practice, it permits scientists outside the government to research the status of a species and then force the Interior Department to take action. Many of the most controversial endangered species battles have begun with this kind of listing, including the famous battle over the California gnatcatcher, whose situation was first researched by a Ph.D. student in ornithology who later petitioned the government for listing. This listing process is different than other government environmental policy processes, but one that's consistent with environmentalists' view that citizens should be empowered to take action to protect the environment. It's pretty clear that when Gale Norton and the environmentalists talk about "citizens," they have different people in mind. Norton is speaking of Western landowners who control the natural resources she oversees; the environmental activists are thinking of themselves and sympathetic scientists. This is an old battle that we have seen throughout California during the last 15 years: Do you work with the landowners or fight them? The decision to withdraw the critical habitat designations suggests that the Bush administration has chosen, not surprisingly, the landowners' side. But a good environmental policy probably requires government officials to play a tricky game of working with private landowners while fighting them at the same time. As an experienced and cagey Western politician, Bruce Babbitt was pretty good at burning both ends of that particular candle. It remains to be seen whether Gale Norton is interested in trying.
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