The Western Livestock Journal often has articles on the Endangered Species Act (ESA), including sage-grouse, wolves, grizzly bears, and others. I would like to share some thoughts on science and the ESA in the case of the sage-grouse.
The U.S. Fish and Wildlife Service (FWS) determined the greater sage-grouse (GSG) was warranted for ESA listing as an endangered or threatened species in 20101, but delayed listing because of higher priorities. This threat of an ESA listing resulted in extensive work by ranchers, counties, states, and others, which in turn resulted in a not-warranted listing decision in 20152.
This work probably helped GSG populations, but was it justified by good science or was the 2010 warranted-for-listing decision made under false pretenses? Why is this important when the GSG ultimately was not listed? Lawyers might say because it sets precedent. As a scientist, I say that just as you are responsible for following government regulations, FWS should be accountable for the science they use in decisions that can result in regulations.
I published a paper in Rangelands—a journal of the Society for Range Management—in 20153 outlining problems with the science used in the 2010 GSG ESA decision.
First, the ESA defines species as “species, subspecies, and distinct population segments (DPS).” This is a big problem because all three categories, particularly subspecies and DPS, are scientifically debatable. For example, Gunnison sage-grouse have been listed as a threatened species separately from the GSG4 but whether these are really different species is questionable.
Second is the essential question for ESA listings: Is the entire GSG species actually threatened or endangered with extinction, meaning absolutely none remaining? The FWS found this to be the case in their 2010 determination. This is an extreme prediction, considering that in 2010 GSG occupied 56 percent of their historical range in 11 states and two Canadian provinces (Figure 1), and the estimated number of sage-grouse was 535,542 birds. Although there may be problems with impacts to habitat, predation, and other factors as with all wildlife species, sage-grouse were not endangered with extinction.
Under the legal definitions of the ESA, endangered means likely to become extinct, and threatened means likely to become endangered, in the foreseeable future, this often considered to be 30 or 100 years.
The 2010 endangered finding was based on predictions of future impacts and habitat loss from population models that have inherent uncertainty and questionable assumptions, including prediction of reduced fitness due to inbreeding in populations isolated by development. Regardless, in the model results many sage-grouse populations were actually found not likely to go extinct, and thus the species was not likely to go extinct.
Despite this, FWS found that sage-grouse were likely to go extinct anyway. To reach this finding the FWS used published model results that did not predict extinction but dismissed them and instead “anticipated” future impacts and habitat conditions, and then “concluded” likely extinction of the species.
Instead of speculating about future impacts, FWS should have posed their predictions as hypotheses to be tested with observations, and not make premature and scientifically indefensible conclusions. Maybe the GSG needed improved management and habitat protection in some areas, but the point is that it was not endangered with extinction, and it was simply speculation, not hard science, that concluded it was. To be listed under the ESA a species must be likely to become extinct, notwithstanding the subtle distinction of endangered and threatened categories. Using inconclusive science to support an ESA listing is not the “best available science” required by the ESA.
As many of you are aware, what is “best” is not always clear, but the federal government biologists (or lawyers?) make this decision and are backed up by getting deference in the courts simply by being a federal agency.
The case of the sage-grouse shows the potential for misuse of government science as occurred in the former Soviet Union under T. Lysenko5. Also, a point made by Justice A. Scalia in a water pollution case6 may apply to the ESA in which FWS essentially acts as the executive (interpreting the science) and legislative (writing the regulation) branches. This violates the fundamental principle of the separation of powers which Justice Scalia noted can result in tyranny.
Third, it is perhaps most important to recognize that proactive management is better than the ESA for species such as sage-grouse that are common and widely distributed. For example, controlling predators7 and innovative management such as rearing sage-grouse in captivity8 can help local populations.
Regarding land use and habitat, voluntary incentive programs such as the conservation reserve program (CRP) can have great success for wildlife9. Such voluntary incentive-based programs are more likely to be successful at conserving sage-grouse than mandatory ESA regulation, while respecting multiple-use principles and property rights.
Fourth, it amazes me that our elected representatives have allowed the ESA to apply on private property, clearly violating the Fifth Amendment to the Constitution. Do our representatives actually support ESA regulation of private property, or do they just passively allow it to occur? After all, elected officials have sworn an oath to uphold and defend the Constitution. I think substituting voluntary incentives for federal regulation on private property would be a major improvement for both the U.S. and wildlife.
The ESA also violates the 10th Amendment by allowing the federal government to take jurisdiction of wildlife management from the states. At a time when Congress and the president are taking firm (and opposing) stances on important issues such as border security, maybe it’s time for our elected officials to take a firm stance of two of the basic principles of American liberty guaranteed under the Constitution that are violated by the ESA: property rights and states’ rights.
Politicians, bureaucrats, and lawyers have been unable to meaningfully change the ESA, and court opinions have found its application on private property to be constitutional. Perhaps it is time to deal with this issue from the ground up by farmers, ranchers, miners, loggers, and oilfield workers. Consider proposing that Congress and the president amend the ESA as follows:
• The ESA does not apply on private property. A voluntary incentives program like CRP will achieve better wildlife management and honor the Constitution.
• ESA listing decisions must be approved by the secretary of the interior and the affected states (governors and state legislatures) thereby honoring the Constitution.
• FWS will either implement and regulate the ESA, or be responsible for scientific assessments, not both, thereby supporting the separation of powers in government.
You can suggest such changes to the ESA to your president (through the U.S. Departments of Agriculture and Interior, U.S. Forest Service, Bureau of Land Management, Fish and Wildlife Service, and National Park Service), congressmen, state legislators, governor, county commissioners and county sheriffs. — Dr. Matthew Cronin, WLJ columnist
(Matthew Cronin, Ph.D., was a research professor of animal genetics at the University of Alaska, a U.S. Coast Guard officer, and has worked for the U.S. Fish and Wildlife Service and in the private sector with the oil, timber, and mining industries. He is currently a scientist with Northwest Biology Company LLC and an affiliate professor at Montana State University.)
Footnotes
1. Department of the Interior Fish and Wildlife Service. 2010. 12-Month Findings for Petitions to List the Greater Sage- Grouse (Centrocercus urophasianus) as Threatened or Endangered, Washington, DC, USA: Federal Register Vol. 75, No. 55. March 23, 2010.
2. Department of the Interior Fish and Wildlife Service. 2015. 12-Month Findings on a Petition To List Greater Sage-Grouse (Centrocercus urophasianus) as an Endangered or Threatened Species; Federal Register Vol. 80, No. 191: pages 59858-59942. October 2, 2015
3. Cronin, M.A. 2015. The Greater Sage-Grouse Story: Do we have it right? Rangelands. 37:200-204.
4. Department of the Interior Fish and Wildlife Service. 2014. Threatened Status for Gunnison Sage-Grouse. US Department of the Interior, Federal Register Vol. 79, No. 224, November 20, 2014.
5. Parallels between Soviet Lysenkoism and modern environmentalism, particularly global warming, has been described by Michael Crichton in Appendix I of State of Fear (2004, Harper Collins, New York) and Peter Ferrarra in Forbes (http://www.forbes.com/sites/peterferrara/2013/04/28/the-disgraceful-episode-of-lysenkoism-brings-us-global-warming-theory/2/).
6. Opinion of Scalia, J. Supreme Court of the United States Nos. 11-338 and 11-347. Doug Decker, in his official capacity as Oregon State Forester, et al., Petitioners 11-338 v. Northwest Environmental Defense Center Georgia-Pacific West Inc., et al., Petitioners 11-347 v. Northwest Environmental Defense Center on writs of certiorari to the United States Court of Appeals for the Ninth Circuit [March 20, 2013].
7. Orning, E.K. 2014. Effect of predator removal on greater sage-grouse ecology in the Bighorn Basin conservation area of Wyoming. [M.S. Thesis], Logan UT, Utah State University. 140 p.
8. Oesterle, P., R. McLean, M. Dunbar, and L. Clark. 2005. Husbandry of wild caught greater sage-grouse. Wildlife Society Bulletin 33: 1055-1061.
9. Eggebo, S.L., K.F. Higgins, D.E. Naugle, and F.R. Quamen. 2003. Effects of CRP field age and cover type on ring-necked pheasants in eastern South Dakota. Wildlife Society Bulletin 31: 779-785.
