Commentary

The Endangered Species Act Hits Affluent Maryland Suburb of the Nation’s Capital, and People are Furious

Newsflash! The Endangered Species Act is very powerful law used by special interests to stop development projects and use of natural resources they don’t like. Actually, that’s old news to large portions of America that have suffered under the Act for decades, such as the Pacific Northwest, California’s Central Valley, much of Texas, and huge swaths of the South and Southwest.

But it’s new news for one of the unlikeliest places imaginable: Chevy Chase, Maryland-the wealthy and ostentatiously “green” town that abuts Washington, D.C. to the northwest and has a median household income of $250,000 and home price of $1,000,000, which are five times and more than four times the national average, respectively-and Montgomery County, the municipality that includes Chevy Chase, wears its environmental sensitivity on its sleeve, and has a median household income of almost $100,000 and home price approaching $500,000, both about twice the national average.

It turns out that portions of the Purple Line, a planned light rail project adjacent to a portion of Chevy Chase, may impact the Hay’s Spring amphipod, a quarter-inch crustacean that looks like a shrimp. The amphipod, listed under the Endangered Species Act in 1982, lives under rotting vegetation and sediment in seeps and springs. The town of Chevy Chase and some of its residents, which generally support projects like light rail because of the purported environmental benefits, are trying to stop the Purple Line in a classic example of NIMBY, or not in my back yard. (The Reason Foundation, which is “the nation’s foremost expert in free-market transportation alternatives,” according to the Wall Street Journal, has repeatedly pointed out the false promises-from financial viability to environmental benefits-of light rail, here, here, here, here, including a couple of segments on Reason TV, here and here, as well as a critique of Maryland’s Purple Line, and that bus rapid transit is a superior option to light rail, here, here, and here.)

Lots of folks in Montgomery County, like many urban and suburban elites, see nothing wrong with imposing their world view, or are ignorant of doing so, on working class rural Americans through advocacy of laws such as the Endangered Species Act and financial donations to groups that use these laws as land and resource use control tools. That is, until the possible presence of an endangered species in the county jeopardized the light rail project.

Meanwhile, proponents of the Purple Line are upset the Endangered Species Act is being used to try to stop the project. The irony is that the Endangered Species Act is coming back to bite the people who likely support it. For decades, people who live in regions with endangered species have resented powerful environmental pressure groups and their largely urban and suburban supporters using the Endangered Species Act to control land and resource use. The Act can be a significant threat to the economic well-being of natural resource dependent communities that provide products and raw materials we all benefit from, such as lumber, metals, oil, gas, and coal, and fruits, vegetables, grains and meat. Endangered species conservation sounds like a great idea in theory, especially if you don’t have to bear the costs of it. But now that urban and suburban proponents of the Purple Line are faced with the reality of the Endangered Species Act’s massive power, they are suddenly upset about the Act and the ability of citizens to use the statute to file lawsuits against human activity they want to prohibit or hinder, such as timber harvesting, energy development, home building, and even a light rail project in Maryland.

A handful of Chevy Chase residents opposed to the Purple Line joined forces with a couple groups: Friends of the Capital Crescent Trail, an advocacy group for a recreational trail, a portion of which will be altered by the rail line; and most significantly the Center for Biological Diversity, a Tucson, Arizona based group that is well-known in many parts of the country for its aggressive use of the Endangered Species Act to stop development and natural resource use.

Using the Endangered Species Act to oppose the Purple Line gained momentum last fall when John Fitzgerald, a longtime environmental lawyer on the national stage and Chevy Chase resident, and other activists made noises about filing a lawsuit. They asserted the final environmental impact statement for the Purple Line omitted possible impacts on the Hay’s Spring amphipod and Kenk’s amphipod, which is a candidate for listing under the Endangered Species Act. David Culver, a professor of biology at nearby American University who conducted a 2003 survey in the District of Columbia portion of Rock Creek Park and found the Hay’s Spring amphipod in five locations, thinks the species is likely in the Maryland portion of the park and nearby areas that will be impacted by the Purple Line.

While the only known locations for the Hay’s Spring amphipod are in the District of Columbia, Culver contends it’s “extremely likely” the species exists a couple miles north in the Chevy Chase region of Montgomery County, according to a story in the Washington Post. “If you look hard, you’d probably find them,” he added. “It’s not like there’s a wall between D.C. and Montgomery County.” In response to the omission of potential impacts on the amphipod from the environmental impact statement, Culver is reported to have said, “They should look for them. There’s no reason not to look. The only reason not to look is if you don’t want to find anything.”

In February, the town of Chevy Chase became more serious about its opposition to the Purple Line. It voted to hire three firms to lobby against the project, at a cost of $29,000 per month for up to a year, and capped the total cost at $350,000. And in May, the town provided a $10,000 grant to David Culver to conduct two amphipod surveys, one in the spring, the other in the fall.

This summer the issue has come to a boil. In late June, John Fitzgerald and two other Chevy Chase residents, joined by the Center for Biological Diversity, the Center for a Sustainable Economy (an advocacy group based in Oregon), and the Friends of the Capital Crescent Trail filed a 60 day notice of intent to sue the federal government under the Endangered Species Act. The potential plaintiffs alleged the federal government violated the Act by failing to take account of possible impacts of the Purple Line (which is slated to receive federal funding) on the Hay’s Spring Amphipod and Kenk’s amphipod. The notice of intent to sue pointed out that David Culver’s spring survey found:

“seven springs and seeps close to the projected path of the Project, as well as two small wetland areas, that may provide suitable habitat for Hay’s spring and/or Kenk’s amphipod. Two of these seeps are just east of Rock Creek and below the Capital Crescent Trail and are immediately adjacent to the Project. These would be destroyed completely if the Project were to move forward as planned. Four additional seeps are all within 300 feet of the Project footprint. Wetland GB-8 is also less than 300 feet from the Project footprint.”

The involvement of the Center for Biological Diversity drew an immediate rebuke from some pressure groups in favor of the Purple Line, including the Center for Science in the Public Interest, which has made a name for itself on food safety and health issues. Occasionally the Center for Science in the Public Interest weighs in on other issues, including the Endangered Species Act, as it did twice in 2008 when it criticized Republican members of Congress, here and here, for their allegedly anti-science stances on the Act. Yet when it comes to the Purple Line, the Center for Science in the Public Interest is apparently much less interested in scientific integrity as it relates to the Endangered Species Act.

The next steps in the saga of the Endangered Species Act and the Purple Line occurred in late July, the first of which was when the same people and groups that threatened to sue the federal government in June, plus thirteen additional Chevy Chase residents, threatened to sue to state of Maryland for violating the Endangered Species Act. The potential plaintiffs in this lawsuit also cited the opinion of David Berg, professor of biology at Miami University of Ohio and an expert on freshwater invertebrates: “Dr. Berg pinpoints Coquelin Run, a tributary of Rock Creek, and adjacent lands as amphipod habitat likely to suffer from construction of the Purple Line and from additional development on both sides of Coquelin Run keyed to the anticipated presence of the Purple Line.”

Six days later, the Center for Biological Diversity petitioned the U.S. Fish and Wildlife Service to compel the agency to write and implement a recovery plan for the Hay’s Spring amphipod. As a result of the 1978 amendments to the Endangered Species Act, the Service is required to approve a recovery plan for every species listed after 1978 unless there is a compelling reason not to do so. When the Fish and Wildlife Service listed the amphipod in 1982, the species was known from only one site on the grounds of the National Zoo in the District of Columbia. The agency reasoned there was no benefit from spending resources on a recovery plan for a species with such a limited range. But with the new survey work by David Cutler, the Center contends a recovery plan is warranted.

Then on August 26, Friends of the Capital Crescent Trail, John Fitzgerald and another Chevy Chase resident made good on their June threat and filed a lawsuit against the federal government. In addition to the endangered species angle, the lawsuit focuses on the alleged damage to the recreational and scenic values of the portion of the trail that is to be shared with the Purple Line, as well as alleged harm to a colony of herons, which are protected under the federal Migratory Bird Treaty Act.

Curiously, the Center for Biological Diversity is not part of the lawsuit “because our concerns and objections to the Purple Line are, at this point, relatively narrow, focusing exclusively on the endangered species habitat conservation issues,” Bill Snape, Senior Counsel at the Center, said to the online news site, bethesdanow.com. “We are still hopeful that the U.S. Fish and Wildlife Service will wake up and do the right thing.” This is a very odd stance, given the Center’s decades-long track record of doggedly pursuing lawsuits until they force the federal government to change its actions or they exhaust their legal options. “Federal agencies can’t be allowed to neglect their duty to the public trust,” said one of the Center’s lawyers about a lawsuit against the federal government. “Our no-nonsense, no-compromise, get-the-job done attitude prompted a major newspaper to call us ‘pound for pound, dollar for dollar the most effective conservation organization in the country,'” bragged Kieran Suckling, the Center’s Executive Director. And the organization touts its “no-holds-barred action on behalf of the world’s most critically endangered animals and plants.” Apparently, one of the Center’s members sees the organization in the same way. “The Center doesn’t back down or compromise,” according to Debra Mahony of Fairfield, Connecticut.

Meanwhile, proponents of the Purple Line are dismissive of opponents’ claims, including those involving the Endangered Species Act. Ralph Bennett, President of Purple Line Now!, the advocacy group in favor of the project, characterizes the plaintiff’s lawsuit as “specious.” Bennett adds, “The Purple Line is supported by countless environmental groups including the Chesapeake Bay Foundation, the Natural Resources Defense Council, Clean Water Action and the League of Conservation Voters. The Sierra Club even went so far as to name the Purple Line as one of the 25 best transportation projects in the United States in 2012.” Yet the three most powerful of these groups-Natural Resources Defense Council, League of Conservation Voters, and Sierra Club-are very strong proponents of the Endangered Species Act, including being members of the Endangered Species Coalition, the advocacy group that typically brooks no compromise when it comes to tradeoffs between development and endangered species protection.

Ben Ross, another Purple Line advocate and a resident of Bethesda, a neighboring town that is also very wealthy but not in the stratosphere of Chevy Chase, is also an advocate of the New Urbanism, which pushes for more walkable urban areas supported by public transportation. In mid-August, Ross sent a twelve page letter, plus nineteen pages of attachments, to the Interior Secretary and Director of the U.S. Fish and Wildlife Service outlining his objections, including that the Endangered Species Act is “being cynically misused by groups and individuals” who want to stop the Purple line. This is also the same general criticism many rural residents, businesses and legislators have about the Endangered Species Act.

After Purple Line opponents were initially unable to find the Hay’s Spring amphipod along the project route, they “fell back on the argument that construction will disturb potential habitat for restoration of the species,” Ross is reported to have said. “Granting credence to this argument would set a dangerous precedent and undermine the entire endangered species program. If any not-in-my-backyard group that has enough money to pay for an endangered species survey can obstruct a construction project, even after the survey results are negative, legislative action to weaken the law would be likely.”

But this is how the Endangered Species Act has been used for decades to restrict land and resource use over significant portions of the country. Just last week, a judge upheld the U.S. Fish and Wildlife Service’s designation of 1,544 acres of critical habitat in St. Tammany Parish, Louisiana for the endangered dusky gopher frog. The problem with the habitat designation are: the dusky gopher frog currently lives only in one small pond in Mississippi about fifty miles away and there is no way the frog can get to the critical habitat St. Tammany Parish without human intervention; the frog has not been seen in St. Tammany Parish in nearly fifty years; and the land in Louisiana designated as critical habitat is not suitable for the frog. The total value of the 1,544 acres, most of which is owned by the Poitevent family of New Orleans, is $34,000,000. Reed Hopper, an attorney with Pacific Legal Foundation who is representing the owners of a portion of the 1,544 acres, is going to appeal the critical habitat designation to the 5th Circuit Court of Appeals. Hopper describes the Endangered Species Act “a law without limits” because, as he put it, the U.S. Fish and Wildlife Service has acknowledged the critical habitat in Louisiana “is currently unoccupied, unsuitable, and inaccessible to the species.”

Yet two of these three conditions, unoccupied and inaccessible habitat, are precisely the points raised by proponents of the Purple Line in their objections to the use of the Endangered Species Act by opponents of the project. Also, how can the Fish and Wildlife Service invoke these conditions in the case of the dusky gopher frog in Louisiana but not Hay’s Spring amphipod in Maryland (when the agency dismissed on August 22 the possibility the species, as well as the Kenk’s amphipod, will be negatively impacted by the Purple Line)? It can because the agency says it can, not because of any underlying principles or consistent standards. The agency’s arbitrary and capricious implementation of the Endangered Species Act, coupled with the Act’s enormous power, is what is so frustrating to landowners, businesses, and legislators across the country. Whether residents of Montgomery County, Maryland grasp this remains to be seen.

People involved with and affected by the Endangered Species Act have long hoped that if the Act were to impact urban and suburban areas, then people who live there would finally realize the serious problems the Act creates. More important is the hope that this realization will help generate increased pressure for reforming the Act so that it strikes more of a balance between the needs of species and people, and so that it does a better job conserving species (as Reason has discussed here, here, here, and here). While it’s unlikely the plight of an obscure crustacean in a Maryland suburb will alone lead to this, perhaps as three things occur–advocates of the Act continue to use it aggressively, more species are listed as a result of a 2011 lawsuit settlement that obligates the federal government to consider for listing 757 species by 2018, and more regions of the country are affected by the Act–there will be an increasing number of voices calling for reform of the Endangered Species Act.

Brian Seasholes is a former research fellow with Reason Foundation.