Living with the Endangered Species Act: Conflicts, compromises arise at grassroots
Fairy shrimp vs. developers. Delta smelt vs. farmers. Kangaroo rats vs. homeowners… While the Endangered Species Act (ESA) has protected such popular species as the bald eagle, the California sea otter, and the peregrine falcon, it has also pitted the interests of lesser known species against those of private citizens. The result: emotional confrontations, proposed reforms and repeals, court battles and acts of physical violence.
Threats followed Forest Service cancellation of grazing leases in riparian areas of the Toiyabe National Forest, a measure taken to conserve endangered Lahontan cutthroat trout. In March 1995, bomb blasts blew apart a Carson City Forest Service office and later the private residence of a Forest Service official. No injuries resulted.
When Fresno County's flood control district found the endangered flower Tulare pseudobahia on land it intended to flood, it attempted to mitigate by purchasing 40 acres of a Kern County ranch where the flower thrived. When the rancher refused to sell, the district tried to condemn the land. Last year, an appellate court returned the property to the rancher plus $100,000 in attorney fees and court expenses.
Fires on the outskirts of Riverside destroyed 29 homes in October 1993. Homeowners charged that ESA protection of the Stephens kangaroo rat, and the consequent ban on disking vegetation near their homes, led fire to their property. General Accounting Office (GAO) investigators concluded to the contrary, citing “burning embers driven by winds of up to 80 miles per hour,” conditions which allowed the fire to jump across 6-lane highways and concrete canals. However, the GAO noted that “County fire department officials continue to be concerned … and have taken the position that the department's fire prevention activities to protect people and property should not be affected by species protection actions.”
Conflicts such as these have set the stage for Congressional efforts to reform the ESA. Today, dozens of bills in the U.S. Congress and the state legislature propose to modify and in some cases curb environmental protections. Reformers on both sides ask: How can we compensate landowners for property designated as wildlife habitat? How can we conserve threatened and endangered species while allowing economic development to continue? (see sidebar, p. 35 )
California is rich in endemic species, those that are native and found nowhere else. One outcome of those riches: California is now the home to more endangered species than any other state in the continental United States. As a result, farmers, ranchers, homeowners and developers here have more than the average interest in ESA reform. Efforts to overhaul the Endangered Species Act were voted the top story by 170 California Farm Bureau Federation (CFBF) convention delegates in 1995.
UC range and pasture specialist Mel George notes, “We have to protect endangered species, but we are not doing it right. We can't save every endangered species on those lists. What we have to do is identify situations where endangered species have habitat in common, then protect these habitats rather than focusing on individual species.”
Despite the number of reform bills proposed, wholesale repeal of environmental legislation is unlikely because it would meet with public disfavor. In a nationwide CNN / Time poll conducted in September 1995, 63% of 1,000 Americans interviewed said they opposed reducing protection for endangered species.
Although ESA debates are marked by passionate advocacy, in some cases contenders are learning to live with each other. For example, U.S. Fish and Wild-life Service (USFWS) officials report they have finalized Habitat Conservation Plans (HCPs) for 50 landowners nation-wide; plans are in the works for 150 others. In HCPs, landowners agree to take conservation measures to bolster species recovery; in turn, the USFWS permits them to incidentally harm individual members of the listed species in the course of economic activity. In one such agreement, Simpson Timber Company has set aside land in Humboldt and Del Norte counties as spotted owl habitat. In exchange, the company may incidentally harm up to five pairs of owls a year as it logs Douglas fir.
While some ESA disputes have led to exemplary compromise, others have raised unresolved questions. For example, in 1991, UC Riverside entomologists Jocelyn Millar, Tim Paine and Larry Hanks initiated a biological control program for the eucalyptus longhorn borer (ELB), a recently introduced insect that kills eucalyptus trees. The scientists followed prescribed procedures, obtaining permits from state and federal agencies to release five parasitic wasps imported from Australia.
In September 1992, the USFWS asked Millar and his colleagues to “hold the biological control program for the ELB in abeyance” based on the possibility that the highly selective parasitic wasps might affect the distantly related valley elderberry longhorn beetle, an ESA-protected insect. (The elderberry beetle was related at the family level; a family typically includes thousands of species.)
“When we received that communication, we had 4 years invested in the project, and we had been importing, mass rearing, and releasing the parasitoid for 2 years with all the required permits. The relevant USDA and CDFA officials had full knowledge of our work,” Millar said. “We were completely blindsided. All the money and effort invested in collecting, importing and developing the facilities and knowledge base for mass rearing of biological control agents is obviously wasted if you can't release the beneficial organism.” Comprehensive literature reviews and bioassays proved that the parasites posed negligible threat to the valley elderberry borer, but in the meantime the project was suspended for 8 months.
ESA rules also affected Tehama County farm advisor Sheila Barry's research. Barry's assessment of the impact of livestock grazing on vernal pools ended when she learned she needed a special “incidental take” permit for fairy shrimp.
“I could have gone to a class, paid money and gotten a permit to continue,” she says. “All I was doing was observing fairy shrimp by scooping them up in a swimming pool net, then dumping them back. That was considered ‘taking.’”
ESA reformists have proposed changes that would increase the ESA's flexibility (see p. 35 ). American Farmland Trust has proposed a “Safe Harbor” initiative to encourage farmers to enhance or create wildlife habitat on their land. The San Joaquin Valley “Safe Harbor” Agricultural Wildlife Conservation Plan would ease the currently cumbersome and costly task of obtaining a permit for “incidental take” under ESA provisions. (Such taking is permitted if the applicant mitigates impact with a habitat conservation plan.) Under the Safe Harbor initiative, to be administered by the California Department of Fish and Game, growers could convert productive farmland to wildlife habitat with the assurance that they would not be prosecuted if they returned the land to cultivation at some future time.
The initiative will not change current law, says Erik Vink, AFT field director. Permits are currently issued under section 10 of the federal ESA on a case-by-case basis. Safe Harbor seeks to provide a simpler and faster standardized process.
When there is a meeting of minds between environmentalists and agriculturists — who sometimes seem to be poles apart — it can have productive results. An example is the teamwork that developed between Sacramento Valley rice growers and environmentalist Mark Reisner, author of Cadillac Desert and Overtapped Oasis, two scathing critiques of agriculture. He became an ally to growers after they showed him their practice of winter flooding to decompose stubble also provided waterfowl habitat (see p. 58 ). “We're strange bed-fellows,” Reisner told California Farmer, “but it's a great alliance.”