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NW I Resource
Spring 1997, Volume 7, Issue 1
STAFF
Robert E. Gordon, Jr..... Executive Director
James R. Streeter............. Policy Director
James K. Lacy............. Programs Director
Liberty Wallace..... Administrative Director

L ist

of

ontents

F igures & T ables

G lossary

of

T erms

E xecutive S ummary
1
I ntroduction

3
N A T IO N A L A D V ISO RY B O A R D
Honorable Larry E. Craig
US Senator
Honorable Becky Norton Dunlop
Secretary of Natural Resources,
Commonwealth of Virginia;
Fmr. Assistant Secretary of the Interior
Honorable George S. Dunlop
Fmr. Assistant Secretary of Agriculture
Bernard J. Ficarra, M.D.
Joseph T. Findaro, Esq.
NWI Qeneral Counsel
Honorable Donald P. Hodel, Esq.
Fmr. Secretary of the Interior, Energy
Eugene Lapointe, Esq.
Fmr. Secretary-Qeneral, CITES
A. Alan Moghissi, Ph.D.
President, Institute for Regulatory Science;
Fmr. Principal Science Advisor, E.P.A.
Louise Oliver
Honorable Richard Pombo
US Congressman
Honorable Steven D. Symms
Fmr. US Senator
Honorable Charles Taylor
US Congress
Honorable Don Young
US Congress
© 1997, NWI. The NW I Resource is published by
the National Wilderness Institute annually or more
frequently. Portions of this study first appeared in
the scientific journal Environment International.
Individual associate subscriptions are $25, $40 for
international. Corporate associate subscriptions are
$250 minimum. N o part of this publication may be
reproduced by any electronic or mechanical means
including information storage and retrieval systems
without the prior consent of NWI, except in the
case of brief quotations contained in critical articles
and reviews. Nothing printed here is to be
construed as necessarily reflecting the views or
policies of NW I or as an attempt to aid or hinder
the passage of any legislation currently before
Congress. POSTMASTER: Send address changes
to NWI, P.O. Box 25766, Washington, D C
20007, 703-836-7404.

M ethodology

6
P art I: C onsequences of A dding S pecies
to the E ndangered L ist
Mistakenly Endangered
8
Problem s in Determ ining Endangerm ent
9
Insurm ountable Threats and Im possible
Recovery Goals

10
Best Available Data, the Precautionary
Principle and Disincentives

11
P art II: G rading

the

ESA

The R ecord o f Recovery: Delisted Species
29
The R ecord o f Reclassification: Downlisted Species

31
The R ecord o f Achieving o f R ecovery Objectives
35
Is the USFW S ‘
Lack o f Extinction’Claim M eaningful?

37
Endangered Species Accounting

45
C onclusions

51
R ecommendations

53
R eferences
55
A ppendices
59
I ndex

75

 E

x e c u t iv e

S

u m m a r y

Aldo Leopold, the father o f wildlife management in America, warned us o f being so taken with the institution o f a
conservation program that we fail to reach the actual goal o f the conservation program. The meadowlark, in Leopold’
s
analogy, assuaged our conservation frustration and distracted us from the real chore o f finding the pheasant. With
nearly a quarter century o f implementation now behind us it is reasonable and prudent to review our efforts to conserve
endangered species under the Endangered Species Act to see if we have found our pheasant or have been distracted by
the enchanting call o f a meadowlark
Determ ining Species to be Endangered and the Results
Review o f government data reveals that numerous species have been incorrectly diagnosed as endangered or threatened
with extinction. Under the Endangered Species Act, the legal criteria for listing species do not require conclusive data
showing that a true species faces actual extinction. The Act creates a unique definition o f “species”that is unrelated to
standard biological terminology. Under this non-scientific, legal definition subjectively determined taxonomic units
such as subspecies and distinct populations o f vertebrates are considered “species”. Additionally, the ‘
best available
data’standard does not require determinations to be based on reliable, conclusive, verifiable, sufficient or even accurate
information.
G rading the Program.
The most recent Report to Congress on the endangered species program states that “There have been many success o f
the recovery program; reclassifications, delistings, and significant steps towards achieving species recovery objectives,”
and that “.. .the fact that almost 99% o f listed species remain extant speaks to the success o f the Act as a mechanism for
the conservation o f species at risk o f extinction...”However, USFWS data shows these claims to be inaccurate or
irrelevant. None o f the eight domestic species claimed to be recovered improved primarily because o f actions taken
under the Act. In four cases there is little demonstrable change in the species’conditions attributable to anything other
than data error. Assumptions about alligator population dynamics used at the time o f listing were inaccurate and, had
correct information been available, the alligator would not have been listed. The gray whale’
s population increase is a
continuation o f a positive trend which well preceded the enactment o f the ESA. Improvement in the status o f the Arctic
peregrine falcon and eastern population o f the brown pelican is attributable to the ban on DDT not the Endangered
Species Act. There is no case which required the ESA to bring about the improvement o f a reclassified species. Eigh­
teen o f 22 species reclassified from endangered to threatened have been reclassified because o f data error or because
endangered status hindered recovery management. In only two instances can reclassification be attributed to actions
carried out under the ESA, but these actions could have been done under other authorities. Most species categorized as
“Recovery Objective Achieved: 4,”the highest level were listed without evidence o f being endangered or threatened,
were beneficiaries o f some factor unrelated to the ESA or were listed based on inaccurate data. Popular vertebrates
receive a disproportionate share o f funding. Government agencies other than the primary implementing agencies
(USFWS & NMFS) account for the vast majority o f federal expenditures Many government expenditures are not
captured in the expenditure reports and no private costs are reflected.
Conclusion & Suggestions
The government’
s own data provides the harshest critique o f the effectiveness o f our endangered species program.
Those who continue to promote the Endangered Species Act in its current state can do so only on an anecdotal basis.

A

P i- n w i' c fl R r o l'/ J ti

/

 I n t r o d u c t io n

Robin Hunter, USFW S

The Endangered Species Act o f 1973 (ESA 1973) was signed into law by President Nixon (1973), who sought
legislation to provide the “Federal Government with needed authority to protect... threatened wildlife.”The broad
s (TVA v. Hill 1978.) In a case
scope o f the ESA’
s authority was set forth in a Supreme Court decision in the late 70’
revolving around the now famous snail darter, the court stated that the Act “represented the most comprehensive
legislation for the preservation o f endangered species ever enacted by any nation.”The Endangered Species Act com ­
bined and strengthened many provisions o f existing wildlife protective laws and added significant new enforcement and
regulatory powers. Plants and all classes o f invertebrates became eligible for listing as threatened or endangered (Sec­
tion 3). The categories o f “endangered”and “
threatened”were defined (Section 3). Foreign and domestic lists were
combined and recovery plans were authorized (Section 4). All federal agencies were required to undertake programs for
the “conservation”o f listed species and were prohibited from authorizing, funding, or carrying out any action that
would jeopardize a listed species or destroy or modify its “critical habitat”(Section 7). Conservation was defined as the
“
use o f all methods and procedures which are necessary to bring any endan­
gered species or threatened species to the point at which the measures provided
pursuant to this Act are no longer necessary”(Section 3). Broad “taking”
prohibitions were applied to all endangered animals along with authority to
apply these prohibitions to threatened animal species by special regulation
(Section 9). Implementation o f the Convention on International Trade in
Endangered Species o f Wild Fauna and Flora was authorized (Section 8).
Authority to acquire land for listed species was expanded (Section 5).

The gray whale, Eschrichtius
robustus, a species under NMFS
jurisdiction was removed from the
List. More than any alleged success
o f the ESA, the whale's removal
reflects and is the result o f a positive
population trend begun in 1890.

Although ESA’
s overall framework has remained unchanged since 1973,
significant amendments were adopted during 1978, 1982, and 1988. In 1978,
the definition o f species was modified to limit the listing o f populations to
vertebrate animals (ESA 1973), and in 1982, listing decisions were required to
be based solely on biological and trade information without considering eco­
nomic or other effects, and provision was made for the designation o f “experi­
mental”populations that could be subject to lessened protection (ESA 1982).
Public notice and reporting requirements were added in 1988 amendments
(ESA 1988).

The Endangered Species Act relies upon the Secretaries o f the Departments
o f Interior and Commerce for its implementation. The Secretary o f Interior has
charged the United States Fish and Wildlife Service (USFWS) with carrying out
his ESA duties and obligations. The vast majority o f species listed under the
Act com e under the USFW S’
s jurisdiction. The National Marine Fisheries
Service (NMFS), an agency within the National Oceanic and Atmospheric Administration (NOAA) o f the Department
1

11

1

MAyTCQ!

(

I OQO^ hctc in ri^H irtin n

 seal, Monachus schavinslandi, as well as some other species which are detailed in a memorandum o f understanding
with the USFWS.
Governm ent Inform ation Used in this Study
USFWS and the NMFS produce a number o f reports and other documents relating to implementation o f the Act.
These publications include: Federal Register notices, the List o f Endangered and Threatened Wildlife and Plants,
recovery plans, species by species expenditures reports, and the Report to
Congress on the Endangered and Threatened Species Recovery Program.
Federal R egister Notices

List o f Endangered and Threatened W ildlife and Plants
Section 4 o f the Act requires the Secretary o f Interior to publish in the

Federal Register a List o f all species which have been determined to be

Reuben Bingham, U SFW S

Section 4 o f the Act provides procedures for removing species from or
for changing the level o f protection accorded to a plant or animal on the
List o f Endangered and Threatened Wildlife and Plants. When a species is
removed or the level o f protection afforded is changed, the USFWS pro­
vides notice in the Federal Register and provides the basis for the decision.
The California clapper rail, Rallus
longirostris obsoletus, has been listed
under the jurisdiction o f the
USFWS since 1970.

threatened or endangered by the Secretary o f Interior or the Secretary o f
Commerce. This List includes a species’scientific and common name, whether the species is endangered, threatened,
endangered or threatened by similarity o f appearance, or an experimental population; its historical range, the range
within which it is considered endangered or threatened, a reference to the Federal Register notice regarding the inclu­
sion o f the species on the List, and information regarding the designation o f critical habitat or other special rules.
Additionally, it has been the custom o f the USFWS to include with the List another listing o f all species which have
been removed from the List and the rationale for each such removal or delisting.
R ecovery Plans
Pursuant to Section 4 o f the Act, the USFWS and NMFS typically prepare recovery plans which are intended to
direct the efforts to conserve threatened and endangered species. These documents can include a wide variety o f infor­
mation from species life history and population data to planned recovery actions and estimated associated costs.
Species by Species Expenditures R eports
The 1988 amendments to the ESA require the USFWS to submit an annual report to the Congress outlining the
federal endangered and threatened species expenditures and state endangered and threatened species expenditures for
those states receiving funding pursuant to Section 6 o f the Act. The law requires all reasonably identifiable expenditures
for the conservation o f a species be reported on a species by species basis. Data included in reports issued from 1989
through 1993 have included the annual total species by species expenditures and the amount o f the total com ing from
the USFWS, the NMFS, reporting states, and other reporting federal agencies. Past reports have included expenditure
information provided by the following agencies: Bureau o f Land Management, Bureau o f Reclamation, Bureau o f
Indian Affairs, National Park Service, and Bureau o f Mines, Environmental Protection Agency, Department o f Defense,
Army Corps o f Engineers, US Forest Service, Animal and Plant Health Inspection Service, and Soil Conservation
Service, Federal Aviation Administration, Federal Highway Administration, Nuclear Regulatory Commission, Tennessee
Valley Authority, Department o f Energy, and Federal Energy Regulatory Commission.

 R ep ort to Congress on the Endangered and Threatened Species R ecovery Program
Subsection 4(f)(3) o f the Act requires that the USFWS report to the jurisdictional Congressional Committees on the
status o f efforts to develop and implement recovery plans for all listed species and on the status o f those species for
which plans have been developed. The USFWS has produced these reports for 1990 (USFWS 1990k), 1992 (USFWS
1992e), and 1994 (USFWS 1994e). The recovery reports may contain several different kinds o f information including:

Status:

Describes the condition o f a species as ‘
improving’
,‘
stable’
,‘
declining’
,‘
unknown’
or ‘
extinct’
.

Recovery Objectives Achieved:

Provides an integer description o f the percent o f actions needed to bring about
recovery which have been completed; 1 = 0-25%, 2 = 26-50%, 3 = 51-75%, or 4 =
76-100%.

Recovery Plan Stage:

Describes whether a plan is approved, a draft, under revision, etc.

Recovery Priority:

Provides a ranking for addressing species on a priority basis through use o f a deci­
sion matrix which takes account o f several factors including uniqueness, ability to
recover, threat posed, and whether the species is in conflict with human activity.

Critical Habitat:

Indicates where critical habitat has been designated for the species.

Lead Region:

USFWS divides the country into distinct geographic managment regions. A region is
designated by USFWSfor each listed species to lead in its recovery.

C urrent Status o f the Endangered Species Act
When the ESA passed into law, it was not considered a controversial measure as demonstrated by the near unani­
mous support it received. In the House o f Representatives, the conference report was passed with 355 “
yeas”and 4
“nays”(Congressional Record 1973a), and the original bill in the Senate, S.1983, passed 92-0 (Congressional Record
1973b). Since that time, it has becom e an increasingly controversial measure marked by deepening political divisions
and numerous proposals to alter the Act when it is next reauthorized. The Endangered Species Conservation and
Management Act o f 1995 introduced by Congressmen Don Young and Richard Pombo called for profound alterations to
the law and had 124 co-sponsors, a dramatic increase over those who objected to the Act initially. Because o f increasing
controversy, the Act has not been reauthorized since its authorization for appropriations expired in 1991. It has contin­
ued to have the force o f law through congressional appropriations.
Given the increasing attention the law is receiving, Congress requested the National Academy o f Sciences to review
the Endangered Species Act. According to National Research Council (NRC 1995), the research arm o f the National
Academy o f Sciences, it was “asked to provide advice on scientific aspects o f the ESA and to consider whether it is
‘
protecting endangered species and their habitats’
.”In the conclusion o f its report the NRC stated, “Although it is
impossible to quantify the ESA’
s biological effects— i.e., how well it has prevented species from becom ing extinct— the
committee concludes that fewer species have becom e extinct than would have without the ESA.”Yet the goal o f the Act
is not simply to ensure that “fewer species ... becom e extinct”but to conserve, which means, according to the ESA
itself, to recover species to the point at which protection is no longer required, a substantially more significant goal.
Additionally, although the N R C ’
s report made the anecdotal conclusion that the Act has lead to fewer extinctions, it did
not (Pcnnisi 1995) “...qualify the overall success or failure o f the law.”In its own review o f conservation under the
ESA, the USFWS claims the program it administers is generally a success. According to the Service (1994e):
“
There have been many successes o f the recovery program; reclassifications, delistings, and significant steps
towards achieving species recovery objectives.”

A Promise Broken

5

 “The extraordinary success o f the Recovery Program is demonstrated by the fact that even with a substantial
increase in the number o f species listed over the past decade, over 41% o f the 909 species listed as o f Septem­
ber 30, 1994, have stabilized or are improving.”
“Though extinct species represent an irreplaceable loss to biodiversity o f our natural flora and fauna, the fact
that almost 99% o f listed species remain extant speaks to the success o f the Act as a mechanism for the conser­
vation o f species at risk o f extinction.”
Essentially, the ostensible mission o f the Act is to identify plants and animals endangered or threatened with extinc­
tion, add them to a list o f federally regulated species, and then improve their condition to the point at which they could
be removed from the list. This study measures the degree to which implementation o f the ESA has conserved or is
demonstrably leading to the conservation o f federally endangered and threatened species in its near quarter century o f
existence by reviewing the following:
1) The incidence o f identifiable errors in the determination o f endangered and threatened species by reviewing
government documents;
2) Identification o f problems in determining endangerment as defined in the Act;
3) The incidence o f recovery as demonstrated by a complete review o f species which have been officially termed
as ‘
recovered’in Federal Register notices;
4) The incidence o f ‘
downlisting’- reducing a species protection level from endangered to threatened - and the
factors to which the action is attributable based on a complete review o f Federal Register notices;
5) The Service’
s assertion that, “significant steps towards achieving species recovery objectives”demonstrate
“successes o f the recovery program”by reviewing species which are categorized as having achieved 76% or
more o f their recovery objectives; and,
6) The Service’
s claim that “.. .the fact that almost 99% o f listed species remain extant speaks to the success o f the
Act as a mechanism for the conservation o f species at risk o f extinction.”
In addition to comparing these claims with available government information, this report also provides some
graphical representations o f USFWS data such as species status or recovery objectives achieved by taxonomic group,
list species over time and the percent oflisted species represented by major taxonomic group. Some analysis o f the
Service’
s species by species expenditure reports is also provided. What follows is a thorough review o f the data gathered
by the agency implementing the program with sufficient information so that a reader may determine for him or herself
as to the consequences o f our national endangered species program and the Endangered Species Act.

6

Conservation and Endangered Species