Chapter 8. Applying the ESA: Salmon, Orcas, and What’s Not on the List
It is possible, hypothetically, that the reduced or declining trends of each of the individual species [under review] could be considered as insufficient for affording any of [them] legal protection under the ESA. But taking no action, under such circumstances, might be a major mistake if this collective information is an indication that the Puget Sound area, as an ecosystem, is experiencing major change. [Gustafson et al. 2000]
Two complications for the Endangered Species Act (ESA) discussed in the last chapter are profoundly affecting the act’s ability to protect Puget Sound’s major ecosystems. The first complication concerns the disputed importance of designating critical habitat. Until very recently, the long-held position of the Fish and Wildlife Service (FWS) that this action is a low priority led FWS to ignore it for the great majority of listed species. After a federal appeals court agreed with environmental groups in 1997 that designating critical habitat was mandatory under the ESA (see Natural Resources Defense Council v. U.S. Department of the Interior 1997), dozens of lawsuits have required FWS to address this backlog. Other successful lawsuits from business and property rights groups have required that all designations include an analysis of economic impacts (Middle Rio Grande Conservancy District v. Babbitt 2000 and New Mexico Cattle Growers Association v. USFWS 2001), making this job considerably more onerous. Collectively, these court orders have diverted much of FWS’s listing budget. As a result, in the Puget Sound region and nationwide, since 2000, FWS has generally reviewed the status of species proposed for listing and has listed new species only by court order, even when FWS believes that listing is clearly warranted (USOFR 2005a). Environmentalists blame the Bush administration and Congress for this, but at least part of the problem is fundamental to the way the act is written.
The second complication concerns the unequal ways the ESA applies to different activities that can take listed species. Differences between federal and non-federal actions and how “proximate” harmful actions are to the actual death of listed species not only explain many of the differences in the region’s experience with spotted owls versus salmon; they also explain profound differences in how activities harming salmon have been affected. Salmon harvests are now far below what they were in the mid-1990s. If not for treaties with Canada and Indian tribes, they almost certainly would be even less, since they are so obviously a take. Hatchery reforms that have been advocated for decades are finally beginning, because hatcheries, too (especially under traditional management), are obvious sources of take. But most activities affecting salmon habitat have changed little since the listings, in part for reasons discussed at the end of the last chapter—without any clear legal threat, there has been little incentive to make difficult changes.