Law of Salvation

When Manson's boss, Interior Secretary Gale Norton, was Colorado's attorney general, she tried to prove in court that the ESA was unconstitutional. Now she and other Bush-team players are seriously arguing that listed species don't need places to live, that destroying their habitat won't harm them. She's even tub-thumping for Dennis Cardoza's H.R. 1299, which would excuse federal agencies from protecting critical habitat and which bears the Orwellian moniker the “Critical Habitat Enhancement Act.”

The administration of George H. W. Bush listed an average of 58 species per year. The Clinton administration listed an average of 65—this despite a one-year listing moratorium sponsored by Senator Kay Bailey Hutchison (R-TX). In its five years the George W. Bush administration has made 36 listings, every one of them forced by court action.

There are three main strategies in the administration's ESA end run: rigged and suppressed science; sweetheart lawsuits in which the White House encourages legal action against the act, winks at the plaintiffs, then gives up; and bizarre interpretations of the law that are inevitably struck down but delay recovery for years.

Craig Manson's machinations with the threatened marbled murrelet (a puffinlike seabird of the northern Pacific that nests on mossy, old-growth boughs 45 miles or more inland) provide as good a case study as any of the first two strategies. Inconvenienced by the listing and seeking to get the bird's status reviewed as a prerequisite for delisting, the timber industry, via its trade group, the American Forest Resource Council, brought suit against the Interior Department. The Justice Department declined to defend, and the Fish and Wildlife Service initiated closed-door negotiations with the industry. Not only did the service agree to the status review, it took the job away from its own biologists (who had inconvenienced Big Timber in the first place) and farmed it out to independent scientists. But the independent scientists proved uncooperative, coming up with all the wrong answers—i.e., the truth. They found that the marbled murrelets of California, Oregon, and Washington are indeed threatened with extinction, that they are distinct from healthier populations in British Columbia and Alaska, and that they require protection under the law.

Under Manson's direction, Interior rewrote the report, changing its conclusion and proclaiming that marbled murrelets in California, Oregon, and Washington can safely be dispensed with. When the sanitized version came out, the independent scientists warned that “loss of any of the three populations could reduce the species' genetic resources and compromise its long-term viability.” At this writing, the Fish and Wildlife Service has not made a formal decision to delist.

The ESA requires federal agencies that undertake or permit a project in the habitat of a listed species to consult with the Fish and Wildlife Service or (rarely) the National Oceanic & Atmospheric Administration's fisheries section to see if the project will jeopardize the species. If Fish and Wildlife or NOAA Fisheries renders a “jeopardy opinion,” it must suggest “reasonable and prudent alternatives” or advise that proceeding with the project would violate the ESA.

To circumvent this inconvenience, the Bush administration is proposing “self-consultation” by agencies that increasingly function as subsidiaries of the industries they are supposed to regulate. For example, the Forest Service—not the trained scientists of the Fish and Wildlife Service or NOAA Fisheries—gets to decide if the forest-fire plan hurts critical habitat. “Streamlining,” the Bush administration calls it. Jamie Clark, a 13-year veteran of the Fish and Wildlife Service and its director from 1997 to 2001, calls it “the fox watching the chicken house.” She has this to say about what's happening in her old office: “Never have I seen so many decisions overturned, so much scientific advice ignored, and so much intrusion into the daily work of rank-and-file Fish and Wildlife Service employees.”

It is precisely this pattern of behavior by the White House that prompted investigations by the Union of Concerned Scientists and Public Employees for Environmental Responsibility (see “The Big Chill,” Field Notes, May-June 2005), and the concomitant and subsequent excoriation of the Bush administration by 6,000 of the nation's most distinguished scientists, who reported “a well established pattern of suppression and distortion of scientific findings.” Forty-four percent of Fish and Wildlife Service biologists, ecologists, and botanists surveyed revealed they “have been directed, for nonscientific reasons, to refrain from making jeopardy or other findings that are protective of species,” and 20 percent revealed they had been “directed to inappropriately exclude or alter technical information from a Fish and Wildlife Service scientific document.”

The third strategy for ESA circumvention—bizarre legal interpretations—illustrates the administration's contempt for law, public opinion, and even its own scientists. On November 30, 2004, NOAA Fisheries published a biological opinion in which it made the astonishing and unprecedented assertion that because the eight main-stem dams on the Columbia and Snake rivers were in place before Congress enacted the ESA, and even though the dams eradicated most of the salmon and steelhead (more than 80 percent of the entire run in some cases), they don't count as fish killers because they are now as much a part of the natural environment as, say, waterfalls. The opinion rejected the ESA's plainly stated mission of recovery. NOAA Fisheries flack Brian Gorman went so far as to declare that paperwork—not results—is all that's required of his agency: “The Endangered Species Act does not mandate recovery; it mandates a recovery plan.”

Everyone, including Bush officials, knew this biological opinion was illegal, and on May 26, 2005, it was ruled so by federal judge James A. Redden. But it succeeded at what it was designed to do—delay. “We've won it all in court,” former Oregon governor and salmonid advocate John Kitzhaber told me last October just before the document was finalized. “I don't think the draft biological opinion is going to stand up to legal scrutiny, but the tragedy is that it will take NOAA Fisheries two or three years to do another one. This whole debate is not about salmon as much as it is about the Endangered Species Act.”