Usually the federal government is happy to tout its perceived successes, but that’s not always the case with the Endangered Species Act, its most cherished environmental law. The law mandates that once a species improves sufficiently, the agency must remove it from the Act’s protection (delist) or reduce its level of protection (downlist). Yet is took a lawsuit filed by the Pacific Legal Foundation to compel the U.S. Fish & Wildlife Service to follow the 2007 recommendation of its own biologists and propose an upgrade to the status of the tidewater goby, a two-inch fish that skulks on the bottom of brackish lagoons and estuaries along the California coast.
The goby is only the latest of almost twenty-five species for which Pacific Legal, a Sacramento-based public interest legal organization that is generally opposed to the Act, has filed and won similar lawsuits.
Advocates in the federal government and pressure groups claim the Act is a stunning success and complain that opponents of the law fail to acknowledge when species have improved. So it would seem Fish & Wildlife would jump at the chance to answer critics by downlisting the tidewater goby from endangered to the less-imperiled status of threatened. That this is not the case indicates something fishy is going on.
Hidden to most Americans is a larger agenda of Fish & Wildlife, which is to exploit the Endangered Species Act as a powerful tool to control otherwise normal and legal forms of land and resource use—such as farming, home building and logging—across vast swaths of the U.S.
The bald eagle illustrates this hidden agenda. The eagle should have been delisted in the early-to-mid 1990s, when it surpassed the delisting goal of around 3,000 pairs in the lower 48 states. But Fish & Wildlife did not want to let the eagle fly free of the Act because the bird was a powerful land-use control tool.
Take the case of Ed Contoski, co-owner of 18 lakeshore acres in central Minnesota. In 2004, to provide for his retirement, Contoski decided to sell his property to family members. The only option for raising the $425,000 needed to purchase Contoski’s half-share was dividing the property’s northern seven acres in to five residential lots and selling them. But when authorities found a bald eagle nest on Contoski's property, development halted. Faced with the ESA’s harsh penalties—$100,000 and/or one year in jail for harming an eagle or habitat— Contoski had to abandon his plans. Fortunately, Pacific Legal came to his aid and successfully sued Fish & Wildlife to compel the agency to delist the eagle. Ironically, even though Fish & Wildlife fought against delisting the eagle, when delisting occurred in 2007 the agency claimed it was one of the greatest success of the Endangered Species Act.
The tidewater goby is a useful tool to regulate water quantity and quality in streams that empty into the ocean all along the California coast and the large amounts of land within streams’ watersheds. Conservation of the species is a worthwhile pursuit and the goby population has improved. But in the late 2000s, when Fish & Wildlife should have been publishing the proposal to downlist the goby, the agency instead spent years going through the process to designate over 12,000 acres as critical habitat, a provision in the Endangered Species Act that allows for increased land-use controls.
The goby is just another in a long line of species the federal government is unwilling to delist or downlist but for the efforts of the Pacific Legal Foundation to stick up for landowners and make the government obey the law.
Brian Seasholes is director of the Endangered Species Project at Reason Foundation.