In Brief: Two recent Earthjustice court victories spotlight an unwritten government policy which ignores science and prevents new species from being protected.

10/19/06

This month, I want to talk about two victories -- one in Montana where we overturned the U.S. Fish & Wildlife Service's rejection of a petition to list the disappearing wolverine under the Endangered Species Act and another in Portland, where a federal judge ordered the U.S. Bureau of Reclamation to get serious about reforming the management of federal water projects in Idaho's upper Snake River basin to avoid pushing endangered Snake River salmon to extinction.

The thread that links those two cases is the federal government's steadfast antagonism toward the Endangered Species Act, the law that requires us to let the other creatures with whom we share the planet survive. The laws notwithstanding, science notwithstanding and public support for imperiled wildlife notwithstanding, the government is frequently unwilling to even think about changing business as usual until forced to do so at judicial gunpoint. The Bush administration didn't invent that posture, it was a legacy of the Clinton administration, which decided early on that the ESA's requirements could be ignored. The Montana ruling reflects that policy at work to keep species from being listed in the first place; the Portland opinion illustrates the same policy at work to keep a species, once listed, from disturbing business as usual.

Because the government doesn't want to list new species, the job of identifying those creatures plummeting toward extinction and making the case that protection is needed has fallen to the public. It is ordinary citizens, not agency wildlife scientists, who have shouldered the job of gathering the evidence and petitioning the government to take the action necessary that those species may survive. Once considered, the science behind those listing petitions is often beyond dispute, which then forces a reluctant U.S. Fish & Wildlife Service (or the National Oceanic & Atmospheric Administration in the case of marine animals and fish) to act.

To stymie new listings, the government has developed an unwritten policy of simply ignoring listing petitions submitted by the public, even though the ESA plainly requires a response.

In Montana, the government tried as usual to keep from adding the wolverine to the list of species protected by the ESA by neglecting the petition and supporting scientific information. Wolverines, which once lived across the northern tier of states from Maine to Washington, now survive in the remaining undeveloped fragments of the Northern Rockies and North Cascades. They den in deep winter snow at high elevation, where kits are born between January and the end of March. To protect wolverines would require FWS to restrict snowmobiles and helicopter skiing in the backcountry that can drive females from their dens. Unwilling to contemplate offending snowmobilers (see, for example, this news story), FWS chose to stonewall rather than assess the evidence.

We sued to force a response in 2002, a lawsuit in which the government had neither a defense nor an excuse. Made to respond, the government next claimed that the petition's information was not adequate to show that listing the wolverine might be justified. Therefore, went the argument, FWS did not have to decide whether to list. Simple, yes?

Not quite. Earthjustice went back to court in 2005. To conclude that the public's information was inadequate, FWS had to turn science on its head. A U.S. district court judge in Missoula would have none of the government's demand for absolute certainty about the status of a species not well understood, or its dismissal of uncontradicted scientific studies as simply speculation. He ordered FWS to stop stalling and make a final decision about listing the wolverine in accordance with the Act.

Once a species is listed as threatened or endangered, the ESA prohibits federal agencies from jeopardizing its survival through a mandatory "consultation" process. Here again, the government, unwilling to change, often takes its cues from politics rather than science, a tradition that goes back to the Northern Spotted Owl litigation brought by Earthjustice almost 20 years ago.

In Portland last month, the Bureau of Reclamation and other federal agencies were called to account for their management of upper Snake River water projects that supply more irrigation water from the Snake and Columbia Rivers than listed salmon populations can do without. This is not a new problem: the ESA has been clear for three decades that imperiled salmon must take priority over politically-connected Idaho irrigators. To avoid giving salmon that priority, BuRec and others have spent the public's money trying to make a case that giving water users what they want is consistent with salmon survival. The 2005 version of that effort was rejected by the Oregon district court in May; the 2004 predecessor had already suffered the same fate.

In his September ruling, an angry district judge James Redden sent the government back for a third try with some blunt instructions. The opinion spots the real issue: "Federal defendants appear to be more concerned with ensuring that the upper Snake River consultation does not interfere with the terms of the [irrigation water agreement] than ensuring that the B[ureau] O[f] R[eclamation] Projects do not jeopardize ESA-listed salmon and steelhead...." The court warned the government that a new plan for the Upper Snake would not be left in effect if it does not meet the ESA's requirements, and that the court would not remain on the sideline if another failure appears imminent. The water users, sensing the game may be up, are looking for a bailout from Congress. Idaho politicians, fearful that the status quo might change and ready to shoot the messenger bearing such news, fumed that Redden was trying "to play God with Idaho's water." Better that BuRec should play God with our salmon, I guess.

We have our work cut out for us. What's wrong will not change with the 2006 election or a new President in 2008. If we are going to make things change, we will have to find the leverage necessary to upset the business-as-usual applecart. Courts are a good place to start, as these two rulings confirm.

Vawter "Buck" Parker, Executive Director
buckparker@earthjustice.org