Wildlife and People

Egregious Misuse of the ESA

The Endangered Species Act was enacted in 1973 with the idea of preventing species from going extinct. From the Endangered Species Act of 1973 as amended through the 108th Congress. ESA § 3(6):

(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction.

However, in the ensuing years, the ESA has been used to “protect” a wide number of species that are in no way in danger of becoming extinct.

There are numerous cases in point. Polar bears were listed under the ESA as threatened last May [here], despite the fact that the polar bear population is growing and may be at an historic high [here]. Canadian grey wolves were planted (by the US Fish and Wildlife Service) in Rocky Mountain states and then declared endangered despite the fact that the exact same wolves teem in Canada.

One of the slick tricks the USFWS pulls is to declare some geographic sub-set of a species to be a Distinct Population Segment (DPS) or Evolutionarily Significant Unit (ESU), which are supposed to be genetically unique and separate sub-populations [here]. Examples abound, such as the western snowy plover and marbled murrelet, both of which are common and not threatened with extinction, but are listed as DPS’s at the extreme termini of their ranges.

The same is true of Canadian wolves in the U.S. which are split into at least three DPS’s, or were until recent judicial decision found that ESA lacks any definition of a Distinct Population Segment [here].

Perhaps the most egregious misuse of the ESU designation is in Pacific salmon, with 52 (count ‘em, 52) so-called Evolutionarily Significant Units [here]. That doc was written in 2005. As of 2008 16 salmon and steelhead ESU’s are listed as threatened, and 6 bull trout ESU’s, as well [here].

The Central California Coast Coho ESU, which includes all naturally spawned populations from Punta Gorda to the San Lorenzo River (excluding the Sacramento-San Joaquin River system), was listed as threatened in 1999 and endangered in 2005 [here]. Yet the CCCCESU is a new population of coho, arising from hatchery-planted fish from Washington state. They are not native fish, and in fact compete with native steelhead, which are also listed endangered (in 1997).

An interesting petition was filed in 2002 and again in 2003 with the Dept. of Commerce for a reconsideration of the Endangered Species Act listing of coho salmon in California, arguing that the geographic scope of the listing should not include populations south of San Francisco. (The Endangered Species Act of 1973, as amended requires the Secretary of the Interior or the Secretary of Commerce (depending on jurisdiction) to determine whether species are endangered or threatened. In this case, the Sec. Commerce was petitioned). The National Marine Fisheries Service (NMFS), a sub-agency of the National Oceanic and Atmospheric Administration (NOAA), an agency of the Dept. of Commerce, sat on the petition for 3 solid years!

Finally in 2006, after feints and dodges, the NMFS summarily rejected the petition. They had by law 90 days to do so, but took over 1,000 days instead. The petitioners then asked the courts to force the NMFS to consider the petition. Federal courts demurred but California courts have twice ordered the California Fish and Wildlife Commission to accept the petition for further review.

To no avail. So last month the petitioners again asked the US District Court for the Northern District of California to please force the NMFS to accept the petition and consider the issues raised:

Plaintiff is not asking this Court to set aside the coho listing. All that plaintiff asks is a finding, as a matter of law, that plaintiff has met the minimal threshold of acceptance of his Petition, so that defendants can consider the issues raised in accordance in a public process in accordance with the requirements of the ESA.

The entire motion is [here]. Among the pertinent points made are that coho salmon cannot and historically did not naturally persist south of San Francisco, that the current coho there are the result of the 1906 introduction of coho through hatchery imports from Baker Lake, Washington, and that the NMFS arbitrarily and capriciously disregarded the requirements of their own species listing policies.

Some highlights:

Several local newspapers uniformly described the arrival of hatchery coho as the arrival of a new species: “It is believed if raised and planted here they will frequent our streams and thus give us another valuable game fish” (quoting Santa Cruz Morning Sentinel, Dec. 20, 1905). The idea that this new species would survive was not certain: “. . . if they thrive here as hoped they will prove a valuable addition to the piscatorial tribe of our Santa Cruz waters” (quoting The Mountain Echo, Mar. 24, 1906). By 1909, the popular national magazine Forest and Stream reported on plantings in the San Lorenzo River, specifying that “a number of [the returning hatchery coho] have been taken this fall making a run up that stream”. Presumably this is why the first credible scientific mention of coho south of San Francisco came in 1912, in a comprehensive review of “The Fishes of the Streams Tributary to Monterey Bay” which contained the assertion that coho “were said to have been observed in the San Lorenzo River at Santa Cruz” — but nowhere else.

Defendants dismissed the popular consensus as “non-scientific” and amounting to “reports of already depressed salmonid populations rather than as definitive scientific proof that these fish were unquestionably absent from the area.” But local naturalists and fishermen would have had every reason to memorialize complaints of “already depressed populations” of coho. A local extinction would have been big news. They did not, instead treating the coho as a new species being introduced to the area for the first time. Defendants’ finding is wholly contrary to the evidence, and, more importantly, defendants employed the wrong legal standard by insisting upon “definitive” and “unquestionable” proof of the petition’s thesis. The California court has affirmed that it was error for the California Commission to give no weight to the historical information, as it “was proper information which supported the petitioners’ request for delisting which respondent should have considered”.

The archaeological record is consistent with the scientific and popular consensus. Archaeologists examined more than 117,000 fish remains in Native American middens from south of San Francisco, and were unable to identify a single coho bone. Defendants responded that “much more extensive sampling would be needed to use archaeological excavation findings as definitive evidence for establishing the presence or absence of coho salmon from the area”. Specifically, defendants complain that if the coho were to show up at the same rate as in the San Francisco Bay middens, “at least 7,509 elements would have to be recovered and analyzed before a single coho salmon could be expected to be found”. As far more elements were recovered and analyzed, this argument makes no sense. Again defendants employed the wrong legal standard and arbitrarily disregarded the evidence.

The one piece of pre-1906 evidence defendants did muster is certain fish specimens gathered in 1895 from streams south of San Francisco. Until the petition was filed, the specimens had never before been advanced as proof of coho presence in the area, presumably because the original collection logs identify these fish as chinook salmon and chum (or dog) salmon, not coho. Defendants confidently asserted that the fish are actually coho, not chinook, but when supplied with sample material for genetic testing, they asserted that “the laboratory was not able to obtain any usable material for genetic testing”. Somehow, these specimens came to be re-identified as coho. There is no competent evidence in the record concerning how or why this happened.

But this all may be another tilt at windmills. Justice and truth are no longer attributes of our system of government. The self-loathing for the human race is deeply entrenched, and it is doubtful that mere petitions, no matter how rational, will affect the Powers That Be.