ESA is ‘Federally funded fiction’ – Report on U.S. Endangered Species Act exposes federal deception
Correcting Falsely “Recovered” and Wrongly Listed Species and Increasing Accountability and Transparency in the Endangered Species Program
By Robert Gordon
Senior Research Fellow in Regulatory Policy – Heritage Foundation
Today there are some 2,340 species of which 1,661 are U.S. plants and animals on the federal list.3
U.S. Fish and Wildlife Service, “Listed Species Summary (Boxscore),” https://ecos.fws.gov/ecp0/reports/box-score-report (accessed November 30, 2017).
Conservation under the ESA is defined as recovering a species to the point at which protections under the law are no longer necessary.4
Under the ESA, conservation means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” Endangered Species Act, Section 3(3).
When a species is recovered, it is to be delisted by a regulation that indicates the grounds for its delisting are recovery. Species may also be removed from the list if they are determined to be extinct or to have been originally added to the list using data that were in error.5
U.S. Fish and Wildlife Service, “Report to Congress on the Recovery of Threatened and Endangered Species: Fiscal Years 2005–2006,” p. 27, https://www.fws.gov/endangered/esa-library/pdf/2005-6%20Report.pdf (accessed December 4, 2017). The Service states, “We may delist a species under the Act for three reasons: 1) because it is recovered, 2) because it is extinct, and/or 3) because the original data used to list the species were in error (i.e., because there is new information on the species’ status, taxonomists have revised the species’ classification, or other administrative reasons).”
When a species is delisted it essentially completes the cycle established by the law.
Some 81 species have been removed from the list since its inception.6
U.S. Fish and Wildlife Services, “Delisted Species.”
Of these, 13 were foreign species and will not be addressed here.7
Ibid. The ESA is the U.S. implementing act for the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Consequently, foreign species are included on the U.S. list. See Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, https://www.cites.org/eng/disc/text.php (accessed January 24, 2018).
Of the remaining 68 species that are or were found at least in part within the United States, 11 species have been removed from the list as having gone extinct and 19 have been removed from the list on the grounds of original data error.8
U.S. Fish and Wildlife Services, “Delisted Species.”
The remaining 38 species were officially removed from the list on the grounds that they “recovered.” Unfortunately, almost half of these “recoveries” are false.9
For a number of the remaining 20 recoveries, their delisting is often attributable to events or causes unrelated to the ESA, from restrictions on the use of DDT or reduction in large-scale commercial whaling to actions that could have been carried out without the ESA. Some cases involve subspecies or lesser taxonomic units of species that are otherwise abundant. See Majority Staff Report,“Implementation of the Endangered Species Act of 1973,” Committee on Resources, U.S. House of Representatives, 109th Cong., May 2005, http://www.eswr.com/docs/505/esaimplrprtresources.pdf (accessed January 24, 2018), and Robert E. Gordon, Jr., James K. Lacy, and James R. Streeter, “Conservation Under the Endangered Species Act,” Environment International, Vol. 23, No. 3 (1997), pp. 359–419, https://www.sciencedirect.com/science/article/pii/S016041209700038X?via%3Dihub (accessed January 24, 2018). For example, the primary factor in the recovery of the bald eagle, Arctic peregrine falcon, peregrine falcon, and brown pelican is generally accepted to be restrictions on the use of DDT, which preceded and was unrelated to the ESA. Similarly, while the gray whale has substantially increased in number, the species has had a positive population trend for decades following a dramatic reduction in large-scale commercial whaling—before the ESA was enacted. Additionally, three of the recovered species are distinct population segments (DPS) or subgroupings of the humpback whale, which was originally listed as a full species. Subsequently, the humpback was divided into 14 foreign and domestic DPSs. Nine of these remain listed, while five were declared recovered. U.S. Fish and Wildlife Service, “Species Profile for Humpback Whale (Megaptera novaeangliae),” https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=A02Q (accessed December 12, 2017). Additionally, some recovered species are subspecies or lesser divisions of the otherwise plentiful whitetail deer and Canada geese.
Many would be more accurately classified as “original data error” and likely include: Johnston’s frankenia, Modoc sucker, white-haired goldenrod, Louisiana black bear (delisted in 2016), Oregon chub (2015), island night lizard (2014), Virginia flying squirrel (2013), Concho water snake, Lake Erie water snake, Maguire daisy, Tennessee coneflower (2011), Eggert’s sunflower (2005), Tinian monarch (2004), Hoover’s wooly star, (2003), American alligator (1987), and the Palau dove, Palau owl, and Palau fantail flycatcher (1985).10
U.S. Fish and Wildlife Services, “Delisted Species.” When the Palau species were listed and delisted, Palau was part of the United States Trust Territory of the Pacific, and so these birds are included among domestic species for this paper. Palau is now a republic in free association with the U.S. Additionally, the author petitioned for the delisting of the Tinian monarch and several other species addressed in this paper.
Additional information for some of these species can be found in Appendix A, Additional “Recovered” Species. Moreover, there are a substantial number of currently regulated species that were listed using erroneous data or are likely extinct. Many of these merit delisting or downlisting on the grounds of original data error. A table of 100 species that may fall into this group is included in Appendix B, Species Listed with Erroneous Data or Likely Extinct.
Examples of False Recoveries
Often the erroneous data used to list these species regard the estimated population or the extent of the species’ range. Such errors are commonly profound, often by an order of magnitude, off by a factor of 10, or even more. For example, when the Service listed Hoover’s wooly star, a plant, it provided speculative information about the plant’s numbers that indicated an already substantial population floor of over 35,000 to over 300,000 plants with “preliminary results” indicating an additional 28 populations.11
U.S. Fish and Wildlife Service, “Proposed Endangered or Threatened Status for Five Plants From the Southern San Joaquin Valley,” Federal Register, Vol. 54, No. 143 (July 27, 1989), pp. 31205–31209, https://ecos.fws.gov/docs/federal_register/fr1568.pdf, (accessed November 30, 2017).
However, even that already large estimation was a gross undercount. After Hoover’s wooly star was listed, over 1,000 new sites were discovered with many falling within four meta-populations.12
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Proposal to Delist Eriastrum hooveri (Hoover’s woolly-star),” Federal Register, Vol. 66, No. 44 (March 6, 2001), p. 13475, https://www.gpo.gov/fdsys/pkg/FR-2001-03-06/pdf/01-5288.pdf#page=1 (accessed November 30, 2017).
While the plant’s numbers fluctuate, within the largest meta-population alone the Service reported the astounding approximation of 135 million plants.13
Ibid, p. 13476.
The Service omits this figure from the final rule delisting this species as “recovered” but does acknowledge: “Large areas of potential suitable habitat remain unsurveyed, and it is likely that additional sites remain undiscovered.”14
Ibid. While the Service delisted Hoover’s Woolly Star as recovered, the profile for the plant on the Service’s ECOS website more honestly reports the species was “delisted due to original data error – new information discovered.” U.S. Fish and Wildlife Service, “Hoover’s woolly-star (Eriastrum hooveri) Species profile,” https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=Q2TE (accessed February 6, 2018).
Seeking to obscure this error the Service states, “Research efforts, as part of the recovery process, have shown that Eriastrum hooveri is more resilient and less vulnerable than previously thought”15
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Removing Eriastrum hooveri (Hoover’s woolly-star) from the Federal List of Endangered and Threatened Species,” Federal Register, Vol. 68, No. 94 (October 7, 2003), p. 57832, https://www.gpo.gov/fdsys/pkg/FR-2003-10-07/pdf/03-25364.pdf#page=1 (accessed February 7, 2018).
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Final Rule To Remove the Tinian Monarch From the Federal List of Endangered and Threatened Wildlife,” Federal Register, Vol. 69, No. 182 (September 21, 2004), pp. 56368–56373, https://www.gpo.gov/fdsys/pkg/FR-2004-09-21/pdf/04-20700.pdf#page=1, (accessed November 30, 2017).
There was no recovery and so no “recovery process.” Instead, the bureaucratic process exposed the original listing as bogus.
Similarly, the Service included the Tinian monarch, a small bird found on the Pacific island of Tinian, on the endangered list, likely as a result of misinterpreting a decades-old observation of some 40 to 50 Tinian monarchs to be a population estimate for the entire island.17
Ibid. The Center for Biological Diversity (CBD) subsequently petitioned for the Tinian monarch to be re-listed and the Service indicated that listing “may be warranted.” Center for Biodiversity, “Petition to List the Tinian Monarch (Monarcha tatatsukasae) as Threatened or Endangered Under the Endangered Species Act,” December 11, 2013, https://ecos.fws.gov/docs/petitions/92000/483.pdf (accessed December 12, 2017), and U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; 90-Day Findings on 25 Petitions, Fish and Wildlife,” Federal Register, Vol. 80, No. 181 (September 18, 2015), p. 56423–56432, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-23315.pdf (accessed December 12, 2017). Among the threats CBD asserts in its petition are “stochastic [i.e., random] events” such as typhoons. The Tinian monarch has previously survived not only typhoons but also having its sole habitat, an island, subject to 43 days of naval bombardment, followed by bombing, artillery barrage, and an amphibious landing and fierce combat between U.S. Marines and Japanese forces—during a window in which the island was also struck by a typhoon. See Major Carl W. Hoffman, “The Seizure of Tinian,” http://www.ibiblio.org/hyperwar/USMC/USMC-M-Tinian/index.html (accessed December 12, 2017).
Later, having determined there were tens of thousands of birds on the island and that the Tinian monarch was among the most abundant of birds there, the Service delisted the bird but attributed the delisting to recovery instead of the obvious cause of data error.18
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Removal of the Concho Water Snake From the Federal List of Endangered and Threatened Wildlife and Removal of Designated Critical Habitat; Final Rule,” Federal Register, Vol. 76, No. 208 (October 27, 2011), pp. 66780–66804, https://www.gpo.gov/fdsys/pkg/FR-2011-10-27/html/2011-27375.htm (accessed November 30, 2017).
Sometimes the errors are an overestimated or completely incorrect assessment of a threat to a species. For example, when the Service included the Concho water snake on the list, it considered the primary threat to be the pending construction of a reservoir.19
The Service believed the reservoir would destroy the snake’s habitat. After the reservoir was constructed, the snake occupied it, and the Service also determined that the snake’s range was larger than previously believed.20
U.S. Fish and Wildlife Services, “Recovery Success Stories: Concho Water Snake,” October 27, 2011, https://www.fws.gov/endangered/what-we-do/ep-10.html (accessed November 30, 2017).
Subsequently, the Service hailed the Concho water snake as a success story, stating the snake had been threatened by “habitat modification and destruction,” but omits mention that concern about the reservoir was unfounded.21
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for Helianthus eggertii (Eggert’s Sunflower),” Federal Register, Vol. 59, No. 174 (September 9, 1994), pp. 46608–46611, https://ecos.fws.gov/docs/federal_register/fr2682.pdf (accessed December 11, 2017).
Similarly, Eggert’s sunflower, a plant found in Kentucky and Tennessee, was listed because of low numbers and a significant concern that many of 24 remaining populations were threatened by mowing and other routine roadside maintenance.22
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Removal of Helianthus eggertii (Eggert’s Sunflower) From the Federal List of Endangered and Threatened Plants,” Federal Register, Vol. 70, No. 159 (August 18, 2005), pp. 48485–48490, https://www.gpo.gov/fdsys/pkg/FR-2005-08-18/pdf/05-16274.pdf#page=1, (accessed November 30, 2017).
Subsequently, Eggert’s sunflower discoveries brought the total to 287 sites in 27 counties, and the Service determined that the plants found along roadsides benefited from mowing.23
Ibid., p. 48485.
While never endangered, the Service reports evaluating the potential impacts from 262 federal actions upon the species.24
News release, “An Endangered Species Success Story: Interior Department’s U.S. Fish and Wildlife Service Announces Delisting of Maguire Daisy,” U.S. Fish and Wildlife Service, January 18, 2011, https://www.doi.gov/news/pressreleases/An-Endangered-Species-Success-Story-Interior-Departments-US-Fish-and-Wildlife-Service-Announces-Delisting-of-Maguire-Daisy (accessed December 4, 2017).
Taxonomic error has also played a role in false recoveries. The Service announced the delisting of the Maguire daisy with a press release titled “[A]n Endangered Species Success Story,” stating that the “population of the daisy was known to number seven plants when it was listed as endangered in 1985 but now numbers 163,000 plants within 10 populations…. It is the 21st species to be delisted due to recovery.”25
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Removal of Erigeron maguirei (Maguire Daisy) From the Federal List of Endangered and Threatened Plants; Availability of Final Post-Delisting Monitoring Plan,” Federal Register, Vol. 76, No. 12 (January 19, 2011), pp. 3029–3044, https://www.gpo.gov/fdsys/pkg/FR-2011-01-19/pdf/2011-1044.pdf (accessed November 30, 2017).
The Service’s press release omitted that the daisy did not increase from seven to 163,000 plants. The larger number reflected more thorough surveys and the fact that the Maguire daisy and another plant that had been believed to be distinct were in fact the same species.26
Endangered Species Act, Section 4(g).
The Endangered Species Act is not only costly but also has been so ineffective in reaching the ultimate goal of recovery that the Service has spent taxpayer dollars to fabricate a record of success.
It is not uncommon for doctors to misdiagnose patients. However, were a doctor to routinely claim he had cured patients whom he had misdiagnosed as “terminal,” there would be consequences. If, for example, undercounting the plant Hoover’s wooly star by more than 135 million does not qualify as “original data error,” what would? The practice of falsely declaring species recovered increased dramatically during the Obama Administration, leading to headlines such as Scientific American’s “U.S. Endangered Species Recovery Surges to Record High.”
See, for example, Center for Biological Diversity, “Petition from Center for Biological Diversity to List 225 Species to Secretary Norton,” May 4, 2004, https://ecos.fws.gov/docs/petitions/92210/643.pdf (accessed February 1, 2018); Center for Biological Diversity, “Petition to List 404 Aquatic, Riparian, and Wetland Species From the Southeastern United States as Threatened or Endangered Under the Endangered Species Act,” April 20, 2010, https://ecos.fws.gov/docs/petitions/92210/1.pdf (accessed January 23, 2018); and news release, “404 Southeastern Freshwater Fish, Mussels, Crayfish, Birds, and Others Petitioned for Protection as Endangered Species,” Center for Biological Diversity, April 20, 2010, https://ecos.fws.gov/docs/petitions/92210/1.pdf (accessed December 13, 2017).
Proclaiming mistakes as success presents an inaccurate picture of the ESA and obscures other problems.
Species have previously been appropriately delisted on the basis of data error—as was the case with 19 species including the Dismal Swamp shrew, Tumamoc globeberry, and Pine Barrens tree frog.
U.S. Fish and Wildlife Service, “Endangered Species, Secretary of the Interior,” Federal Register, Vol. 32, No. 48 (March 11, 1967), p. 4001, https://ecos.fws.gov/docs/federal_register/fr18.pdf (accessed December 13, 2017).
When a species’ population or range was underestimated, a taxonomic classification was invalid, or threats were overestimated so that a species that would not have been listed was listed, the species should be delisted on the grounds that the original data were in error. This remains true even if the Service undertook activities that increased our knowledge of or directly benefitted the species. Failure to correct these false recoveries is an implicit acknowledgement of willful dishonesty.
Many currently listed species should be delisted on the grounds of data error—such as the red wolf, flat-spired three-toothed land snail, Hawaiian hawk, spruce fir moss spider, Todsen’s pennyroyal, running buffalo clover, and black lace cactus. While over 50 species that were listed using erroneous data are identified in Appendix B, this list is by no means exhaustive. All of these species were listed prior to the year 2000—before several “mega-petitions” (petitions to list hundreds of species) hit—and there is little reason to believe later listings are more reliable.
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Reclassification of the American Alligator to Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range,” Federal Register, Vol. 52, No. 107 (June 4, 1987), pp. 21059–21064, https://ecos.fws.gov/docs/federal_register/fr1263.pdf (accessed December 13, 2017).
The recommendations and information here would help correct the record; provide guidance as to some of the species that should be delisted on the grounds of data error as well as extinction; improve the likelihood that future delistings are appropriately categorized; and improve accountability and transparency.
Many of these errors are attributable to the low bar for scientific data used to list species, the ESA’s litigation-driven construct, and possibly a bureaucracy as interested in accumulating authority as in conservation. The law calls for the “best available scientific and commercial data” to be used in listing species. Unfortunately, the manner in which the Service has interpreted this directive does not require the data to be accurate, reliable or even sufficient to reach a scientific conclusion. In short, the “best available data” are often of poor quality—and sometimes not even made available to the public before listing. While some of the recommendations made here would improve the situation, this is a far larger problem that gets into the language of the ESA itself. The first steps, however, are acknowledging the seriousness of the problem, correcting the record, and ensuring it does not continue.
—Robert Gordon is a Visiting Senior Research Fellow in Regulatory Policy in the Thomas A. Roe Institute for Economic Policy Studies, of the Institute for Economic Freedom, at The Heritage Foundation.