Is Alaska A Victim of Irrational Policy: Endangered Species Act?

 

 

 

When the Endangered Species Act was proposed in 1966, it met with general approbation. People understood that the game animals of the African Veldt were declining in numbers, that other "headline" animals around the world were less numerous, and that it is an ethical responsibility of human beings not to unnecessarily impoverish the biodiversity of the Earth.

 

Estimates of human impact on global biodiversity vary greatly. At one recent meeting (Gerhard et al, 2000), participating biologists argued that the rate of extinction was 4000 species per day, based on statistical studies of tropical rainforest diversity and loss of rainforest. The same biologists accepted 36 million as the number of species that presently exist. At that rate of extinction, no life would exist on earth in 25 years. Other people, such as Lomberg (2001), point out that the most likely consensus scenario is loss of 0.7% in biodiversity over the next 50 years, a far cry from 100% over 25 years. Credible analysis of the issue is needed, but is not available.

The 1966 Endangered Species Act (ESA) act was only a first step down a legislative path that gradually expanded both the scope and the impact of the original 1966 act in 1969,1973, 1978, 1979,1982, and 1988. Today the amended ESA no longer stands as the beacon of environmental responsibility it was intended to be. Whether the ESA is viewed as the club of choice to bludgeon those who would develop land or resources or the ultimate protection for plants and animals against the unbridled destruction of their habitat depends on the point of view of the observer in any particular controversy. One thing is clear, however, the ESA has contributed greatly to the acrimony between environmental preservationists and resource users.

 

Purposeful or unintended, the ESA often pits urban wealth against rural poverty, and the American West against the East. According to a 1999 report from the House Resources Committee, 543 species were listed in the five Far West states, but only 39 were listed in the Northeast. Critical habitats were designated for 96 species in the West, but just nine in the East, despite the effects of eastern urbanization (Wall Street Journal, 2002).

 

Rarely has one well-intentioned and popular piece of legislation created so much rancor over so many years. Even in scientific journals, we have seen articles questioning a particular application of the legislation immediately followed by personal attacks on those who wrote the articles rather than reasoned arguments. The bitter and escalating emotional rhetoric is often the result of failure to understand the law or even read its language carefully.

Certainly it is rational to protect the biosphere from wanton species destruction. But it is no less rational to provide human beings with the resources they need to maintain the quality of their lives and improve their standard of living. 

 

 

Consider the designation of the Arkansas River Shiner as a threatened species. This small fish has been extinct in most of the Arkansas drainage for many years and the actual original range of the shiner is not known. Dewatering of the Arkansas River in Kansas began during the last half of the 20th Century as a result of federal dams in Colorado. Subsequent withdrawals for irrigation from the stream aquifer along the river course in Colorado completed the dewatering, and except in times of very high runoff, surface water did not reach the Colorado/Kansas border. Thus, no fish of any kind were present in much of the Arkansas drainage.

 

In the mid-1990’s the State of Kansas sued Colorado charging violation of water rights under the Arkansas River Compact. Kansas won the lawsuit and water was added to the Arkansas River system. Now water does flow though most of the Arkansas Channel most of the time.

 

Subsequent to the improvement in the river flow regime, the U. S Fish and Wildlife Service began the process of listing the shiner as a threatened or endangered species.   The USF&WS completed its listing in 1998. Since the actual range of the shiner was then restricted to non-Kansas portions of the river, USF&WS argued at the time that the designation of “critical habitat” was not prudent (Southwest Kansas Groundwater Management District, 2001). Thus, no significant public opposition was mounted to listing the shiner as an endangered species.

 

Once the listing was final, however, the USF&WS rescinded its earlier determination and designated 1148 miles of river and the three hundred feet of adjacent land to be critical habitat for the shiner. 98% of the now “critical habitat” is private land.

 

Twenty-six grassroots groups have formed a coalition and filed a “notice of intent to sue” to reverse that listing of the shiner as an endangered species and the designation of the entire river as its critical habitat. 

 

Through this controversial process, has the USF&WS become an advocate rather than a scientific arbiter?

 

Unscientific, and inconsistent application and interpretation of laws that depend on scientific determinations has created citizen conflict with government.

 

It is not my place to decide for others what their standard of living should be, or to make more difficult the struggle of less fortunate people to attain their goals. It is, however, my obligation as a scientist to point out some of the scientific problems with the ESA and to suggest how they can be resolved.

 

I believe we can have a functional law protecting endangered species and their habitat, a sound rural economy, and an upwardly mobile society. To arrive at such a balanced position we will have to focus on the scientific rationale for the law and the constraints that can be fairly imposed on freedom of economic action.

 

There are three areas of scientific concern over the existing ESA: the definition of “species,” the definition of the term “conservation,” and determination of what characteristics define a species. The relatively new phenomena of defining species statistically, based on DNA, is yet another area of concern for scientists.

 

Definition of species: Most of us have learned that the taxonomic term “species” referred to the basic building block of Linneaic taxonomy, the lowest formal taxonomic level at which an organism could be distinguished from all other organisms. Any subdivision of that taxonomic level was informal, and poorly defined, often merely a way of honoring the scientist who first discovered or identified the organism. Our biology teachers defined species as organisms “incapable of interbreeding and producing fertile offspring.” The standard example was the interbreeding of a horse and a donkey to produce the infertile mule.

 

However, the definition of species in the ESA is:

 

“The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” (The Endangered Species Act, 93-205 et. seq).

 

It has been suggested that “The legal language of the Endangered Species Act contains a scientifically fraudulent definition of species, and does not provide at all for examination of the basis of designation of therein defined species.” (Gerhard, 1998). The term fraudulent means “purposeful misrepresentation,” a test that the federal legal definition appears to meet. 

 

The subspecies designation included in the federal definition of species is the root cause of the acrimony over protecting biodiversity. Some of the organisms protected are not necessarily those in danger of extinction as a true species, but are rather variants of a larger community. “Subspecies” are not sufficiently taxonomically distinct to justify their definition as species for the purpose of protection under a federal law.

 

Using population segments that may interbreed when mature as a definition also has its problems. Since species has already been defined as subspecies, segments of subspecies can then be defined as separate species. Thus, each salmon run, each separate prairie dog town, can be considered a separate “species” for purposes of the ESA. Carried to extreme, New York City cannot eliminate its Norwegian rat population, because that population fits the definition of a “population segment that interbreeds when mature,” and is not an insect “pest,” the only recognized exception in the ESA (as a result of a 1988 amendment) (Littell, 1992. p. 16). The “distinct population segment” part of the species definition, if strictly applied to human populations, would result in the subdivision of humans into a significant number of species, based on the remoteness of some populations and other social factors.

 

Also, by act of Congress in 1978, invertebrates may not be divided into population segments (Littell, 1992, p. 16.). An additional possible problem is the lack of “naturally occuring” in the definition, as we more frequently encounter invasion of exotic species which form distinct population segments.

 

A clear way to fix the definition of species is to make a simple change in the circuitous language of the existing statute: “The term “species” includes any species of fish or wildlife or plants which interbreeds when mature and whose viable offspring of such union are themselves fertile, and which naturally occur.”

 

Any acceptable species definition must evoke positive responses to the query, “if the legal definition of species were to be extended to human populations, would it be socially acceptable?”

 

Standard of practice: The Endangered Species Act does not establish any scientifically justifiable criteria for designating species, much less subspecies. Nor is “distinct population segment” ever defined with any scientific rigor. Instead, the Secretary of Interior is empowered to use “the best scientific and commercial data available” in making decisions (Littell, 1992. p. 59).

 

The consequences of these oversights allow any individual to designate an organism to be a subspecies in taxonomic rank, and then by demonstrating rarity, argue for its listing as an “endangered species” entitled to protection against all human activity under the ESA.

 

There is clearly need to write into the Act a standard of practice for taxonomic designation, whether by legislative amendment or by judicial decision. It might be acceptance by the International Commission of Zoologic Nomenclature, or general acceptance by widely recognized peer-reviewed scientific journals.

 

Definition of “Conserve:” Although accurately defined, the use of the term “conserve” in the Endangered Species Act is misleading to the reader who does not follow the arcane language of the act. “Conserve” popularly means “ wise use.” The act defines the word “conserve” as “preserve.” The word “preserve” should be substituted in the act to clearly reflect the intent of Congress and the public.

 

Use of genetic codes for taxonomy: Cracking the genetic code of life has been a continuing process for a number of years. The results are showing up in both theoretical and practical applications such as genetically modified organisms. Advances in the science have been huge.

 

One of the results of the DNA research has been its application to taxonomy. In the last year, African elephants have been split into two species (Roca et al, 2001), based on DNA differences without regard to interbreeding. This is a strong indication that DNA may well be the device used to designate species for purposes of the ESA in the future. This is not a step to be taken lightly.

 

Currently, in both biology and paleontology, there is a tendency towards splitting taxonomic divisions, leading to more taxons, and with less important criteria used to differentiate taxons. While one can now argue physical resemblances as criteria for either maintaining or splitting a species into several, once statistical DNA methods are permitted, then mathematics can play a larger role in taxonomy than natural divisions. The legal ramifications of this technology advance must be carefully considered.

 

Summary:

 

Although the divisions between people and organizations over the Endangered Species Act are deep, more careful use of language and a few relatively simple technical modifications in the current act could mitigate the effects of overzealous implementation and lead to a consensus that protection of biodiversity is important and benefits all.

 

As Congress continues to debate reauthorization of the ESA, there is an opportunity for all concerned scientists to make it work better and more equitably. Protecting biodiversity is a goal that should unite people rather than divide them.

 

 

The writer thanks Victor John Yannacone, jr., for his thoughtful review and suggestions for improving this manuscript.

 

 

Gerhard, L.C., 1998, The Dilemma of the Geologist: Earth Resources and Environmental Policy: in, A Paradox of Power: Voices of Warning and Reason in the Geosciences, Welby, Charles, and Monica Gowan, eds.: Reviews in Engineering Geology, Geological Society of America, p.1-7.

 

Littell, Richard, 1992, Endangered and Other Protected Species: Federal Law and Regulation: The Bureau of National Affairs, Washington, D. C., 185 p., 6 appendices.

 

Lomberg, Bjorn, 2001, The Skeptical Environmentalist: Cambridge University Press, p.

 

Roca, Alfred L., Nicholas Georgiadis, Jill Pecon-Slattery, and Stephan J. O’Brien, 2001, Genetic Evidence of Two Species of Elephant in Africa: Science, v. 293, p. 1473-1477.

 

Southwest Kansas Ground water Management District, 2001, The Pipeline,

August, 2001,Garden City, KS, 2 p.

 

The Endangered Species Act, (P.L. 93-205, approved December 28, 1973; as amended by P.L. 100-707, approved November 23, 1988) (16 U.S.C. §§1531-1543), §1532.

 

 

 

Gerhard, Lee C., P. Patrick Leahy, Victor John Yannacone, jr., 2000, Sustainability of Energy and Water Through the 21^st Century: Sponsored by the American Association of Petroleum Geologists Division of Environmental Geosciences, United States Geological Survey, United States Department of Energy, Geological Society of America, American Geological Institute, and the Energy Research Center of the University of Kansas. Taos, New Mexico, October 8-11, 2000.