Last week one of our best lawyers found himself sparring both with a government attorney and with some members of the high court.  Eric Glitzenstein, of the exceptional D.C. firm known as Meyer, Glitzenstein, and Crystal and a member of our Advisory Board, participated in oral arguments in a lawsuit known as "Defenders of Wildlife v. U.S. Environmental Protection Agency."

We've got the transcript of the oral arguments (PDF) in case you are interested in the details, but the issue at hand boils down to this:  does the Environmental Protection Agency, when taking action under the Clean Water Act, have to comply with the Endangered Species Act.  It specifically involves section 7 of the act, which requires federal agencies to consult with the U.S. Fish and Wildlife Service before taking actions that may harm threatened or endangered species.

Lawsuits are funny things.  Litigation is clearly a tool of last resort, but with the Bush administration's aggressive anti-conservation agenda we often have no choice but to ask the courts to intervene.  We usually win - our litigation record is 21-2 - but you never really know when your lawsuit will make its way to the Supreme Court.  It doesn't happen often, but when it does, especially with this increasingly conservative court, you never know what might happen. 

One attorney at a conference I attended in March half-jokingly commented that we are now entering the post-section 7 era, referring to the Bush administration's insistence on simply ignoring that part of the law and the growing number of courts that are letting them get away with it.  The Supreme Court will issue a ruling later this year, and we'll find out then how well this fundamental "look before you leap" tenet of the Endangered Species Act fared.

The natural world likes to teach us about the complexity of interaction – touch one strand in the web of life and it’s hard to know what else will get tugged; remove one butterfly and who knows what happens to the weather in New York.  It also likes to remind us that often we can be most helpful by allowing these natural interactions to happen without our interference.

Mezquida et al. (2006)  consider “Sage-grouse and Indirect Interactions:  Potential Implications of Coyote Control on Sage-grouse Populations.”  Not surprisingly, they present evidence that coyotes may help maintain healthy sage-grouse communities.  As top-level predators (now that wolves are missing), coyotes help keep the mid-level predators (“mesopredators”) in check.  This is important because mesopredators  like foxes, badgers, and ravens are often implicated in chick and egg mortality, while coyotes show little  interest in preying on grouse.

Coyotes also keep jackrabbit numbers down, which helps lower the abundance of other, more effective sage-grouse predators like golden eagles:  with more rabbits to eat, eagles have higher reproductive rates, and end up taking more grouse as well.  Jackrabbits also can compete with sage-grouse directly for forage, so coyotes can end up conserving vegetation for grouse.

But this isn’t the story that’s told at many of the sage-grouse stakeholder meetings.  Instead, many call for more coyote control – folks recall that when there was lots of coyote poisoning going on, there were more sage-grouse.  This paper makes a good point that there’s some truth to this, but probably because the mesopredators were also eating the poisoned baits - that’s what most likely led to decreased grouse predation.  

When the Colorado Division of Wildlife unveiled their Population Viability Analysis for greater sage-grouse last year, the only factor included in the model that could increase sage-grouse numbers was labeled “predator control”.  They explained that this really should be interpreted as “increased reproductive output” or “increased nest success”, but this choice of language was very unfortunate and will perpetuate the myth that sage-grouse will benefit from coyote killing. 

Mezquida et al. (2006) frequently cite a report by Rick Danvir with the Deseret Land and Livestock Ranch in northeastern Utah.  This ranch, owned by the Mormon Church, has demonstrated that many wildlife-friendly practices are compatible with commercial production.  They may even invite black-footed ferrets to their property some day.  Mezquida et al. (2006) wrote:

Danvir (2002) provides a possible example for positive indirect effects of coyotes on sage-grouse.  He found a nearly 500% increase in sage-grouse lek counts following cessation of coyote control and occupation of almost all habitat on the study area by coyote pairs. (p. 754)

The authors clarify that “habitat manipulations” also were conducted in the area and may be responsible for the sage-grouse gains, but this brings up an interesting possibility – maybe coyote restoration should be considered a valid sage-grouse habitat improvement.

Coyote killing may seem like something out of the old West, but it’s still going on.  This paper cites stats showing that between 1998 and 2004 an average of 33,278 coyotes were killed annually by Wildlife Services (a federal agency) alone in Colorado, Idaho, Montana, Nevada, Utah, and Wyoming.

Mezquida et al. (2006) conclude: 

Healthy coyote populations and the elimination of coyote control measures, however, might greatly enhance the long-term prospects for sage-grouse populations.  (p. 755) 

I’ll howl to that!

In late March the Bush administration's lead attorney at the Department of Interior issued a set of recommended changes to the Endangered Species Act that would gut key provisions of the Act and that reflect harmful legislation rejected by Congress in 2006. The administration's legal interpretation, posted on the Interior Department’s website, is an effort to prop up its failing legal efforts to  limit which species can be listed as threatened or endangered under the Endangered Species Act.   The administration has lost eight of ten court cases where it has used the argument that an endangered species could only be protected if it disappears from enough of its range to threaten its survival.

Outlining why this has such significance for conservation of threatened and endangered species in this country, Rep. Norm Dicks, House Appropriations Committee, told Interior Secretary Dirk Kempthorne, "If you're only going to protect it in its current range, it's an incentive to unscrupulous people to minimize the range."

The administration's proposed changes would also likely eliminate protections for as many as 80 percent of the species currently protected by the Endangered Species Act, one of our country's legacy environmental laws.  The administration's attempt to change policy without citizen and scientific input or Congressional oversight, was not well-received by Congress, however.  Rep. Dicks told Interior Secretary Dirk Kempthorne that the changes being considered are major and shouldn't be enacted without Congress' input.

"I told him we don't want to see a lot of things changed by rule," Rep. Dicks said, adding that he told Kempthorne, "If you're going to change the law send up a bill."

If you're wondering what you can do about the administration's backdoor efforts to gut the Act, there's plenty.  You can write your elected representatives, or write a letter to the editor. Tell them that you care about protecting our nation's biological heritage for future generations. Accordingly, it is important to maintain a strong and effective Endangered Species Act,  and any changes made to it should be approved by Congress and the American people.  You can also sign up for our action alert and newsletter. 

Key elements of Solicitors’ Recommendations:

• Obliterate the concept of historic habitat or range under the Endangered Species Act.  Had this interpretation been in place when the bald eagle, gray wolf, or grizzly bear were listed, they probably would not have been granted the protection that has made them such great success stories because healthy populations of these species existed in Alaska at the time.
• The new policy direction would likely encourage individuals to destroy habitat or kill species on their property if they think it may be listed under the Endangered Species Act in the future.  The Bush administration talks about its “cooperative conservation” approach to protecting and recovering species by working with private landowners.  However, this policy is actually a disincentive for landowners to conserve habitat.  For example, if a landowner has a Cooper’s hawk living in a tree on his property, and he is concerned that the hawk may at some point come under the protection of the Act, he would be encouraged to cut down the tree they were living in because, once down, under the administration’s policy, they would no longer be part of the hawk’s “current range.”
• A species would have to decline to the point where all populations of a species are headed toward extinction before the entire species can be listed as endangered.
• The Bush administration is attempting to gut the Endangered Species Act administratively after failing to change it legislatively.  A version of former Representative Richard Pombo’s 2006 “Extinction Bill” included a very similar provision which would have required that a species be imperiled "throughout all of its current range" before being listed.  Using this standard, not even the bald eagle would have qualified for listing.  The U.S. Senate recognized that this legislation would have severely weakened the Endangered Species Act and refused to consider it.  Using this “dark of night” tactic, the administration is attempting to overrule Congress.

Richard Pombo may have been ousted from the Congress but his "gut the Endangered Species Act" spirit lives on at the White House.  A 117 page memo leaked last week outlines proposed new regulations that would severely weaken this legacy conservation law.  The draft regulations would: 

• - Remove recovery as a protection standard.
• - Allow projects to proceed that have been determined to threaten species with extinction.
• - Allow destruction of all restored habitat within critical habitat areas.
• - Prevent protecting species from disturbance, pesticides, exotic species, and disease in critical habitat areas.
• - Make it extremely difficult to protect any species not already protected, and limit the number that could be protected.
• - Allow states to veto endangered species introductions.
• - Allow states to take over virtually all aspects of Endangered Species Act implementation without the necessary funding or accountability.

Key Democrats, including Senator Barbara Boxer (D-CA), who chairs the Senate's Environment and Public Works Committee, Congressman Nick Rahall (D-WV), the chair of the Natural Resources Committee, and Congressman Norm Dicks (D-WA), the chair of the Interior appropriations subcommittee, not only denounced the proposal but vowed to block it.  The Department of Interior, reeling from new revelations of suppression of science and systematic misconduct, seemed confused in its response.  Initially it tried dismissing concerns by claiming that the document was an old draft that inexplicably appeared, but as it became clear that this explanation made little sense Interior changed its story to suggest that they are still deliberating.

There has long been a disconnect between the degree of public support for the Endangered Species Act (lots) and its political support (less).  This is why, at the end of the day, we virtually always end up winning the legislative fights over weakening the Act, but here the Bush administration is basically proposing to evade Congress altogether.

"Not so fast" is what a bunch of prominent Democrats said in response, pointing out several of the ways - including through appropriations bills - in which they can kill the proposal.

Our colleague Kieran Suckling observed, "If these regulations had been in place 30 years ago, the bald eagle, grizzly bear, and gray wolf would never have been listed as endangered species and the peregrine falcon, black-footed ferret, and California condor would never have been reintroduced to new states.  This plan makes recovery all but impossible for most endangered species. Simply stated, it is the worst attack on the Endangered Species Act in the past 35 years."

Salon.com gets credit for breaking the story, which has since run widely in the news media and the blogs (including Daily Kos).