One of the key conclusions that can be drawn from the recent report released by the U.S. House Resources Committee-on the flawed science and lack of independent peer review used by the U.S. Fish and Wildlife Service to support listing species under the Endangered Species Act-is the need for states to have independent species research initiatives. As the report makes clear, the Fish and Wildlife Service has a strong bias in favor of listing species under the Act, even if species do not merit listing or if listing would not appreciably help the conservation of species, which results in the agency ignoring contrary evidence and skewing the peer review process. An effective way to counteract this, as Colorado and Texas have shown, is for states to fund and produce their own species research.
Almost all of the eighteen species profiled in the report have been listed as a result of the “tidal wave” of over 750 species that are in the process if being evaluated for listing under the Endangered Species Act as the result of the 2011 lawsuit settlement between the U.S. Fish and Wildlife Service and two groups, Wild Earth Guardians and the Center for Biological Diversity. Given the pressure the Service is under to list these species, coupled with the agency’s institutional bias in favor of listing, both of which, as the recent report documents, lead to cutting corners and skewing data, it is all the more imperative for states to produce high quality data to counterbalance the rush to list species that may not merit the Endangered Species Act’s protection.
Before looking into the broader issue of what to do about the Fish and Wildlife Service’s biases, it bears taking a close look at five of the eighteen species detailed in the report, the Gunnison sage grouse and four species of Texas salamanders. Doing so provides an eye-opening look at how the Fish and Wildlife Service stacks the deck in order to list species under the Endangered Species Act (Please excuse the rather lengthy excerpts that are cited below, but this was done to provide a fuller sense of how the Service skews the process).
The report’s section on the Gunnison sage grouse contains the following:
According to the final rule, which was published November 11, 2014, five peer reviewers were solicited, all of whom responded. However, only four of the peer reviewers’ comments could be identified as such out of an assessed total of 36,171 public comments. Contrary to other peer reviews conducted by Region 6, the FWS did not post the names of the peer reviewers for its Gunnison sage-grouse decision to its Region 6 website.
The faculty biography for one of the scientists who served as a peer reviewer, Dr. Jessica Young, provides that she has “document[ed] [the Gunnison Sage-grouse’s] imperiled habitat and status.” Indeed, Dr. Young’s peer review states she had “studied the biology and participated in conservation discussions about the Gunnison Sage-grouse . . . for over 20 years,” and that her “Ph.D. dissertation and resulting publications assisted in the grouse being recognized as a new species in 2000.” Her work on the grouse is recognized by the FWS, which cites her studies nearly 100 in the proposed and final rules to support claims concerning the species’ taxonomy, behavior, and potential threats. Furthermore, Dr. Young’s curriculum vitae notes that she currently serves as an international grouse specialist for the International Union for Conservation of Nature (“IUCN”), which publishes the IUCN Red List – a list that is frequently used by the FWS to evaluate the conservation status of plant and animal species.
Another peer reviewer, Dr. Matt Holloran, has studied various aspects of sage-grouses in Wyoming since 1996. His studies were approximately 60 times by the FWS in support of the proposed and final rules. In his peer review, Dr. Holloran states that “additional information is required” to support the “conclusion that [Gunnison sage-grouse] should be listed as endangered.”
The two other identified peer reviewers, Dr. Michael Phillips and Dr. Terry Messmer, were minimally cited (less than 10 times each) throughout the proposed and final rules for studies or research they had conducted or published. Dr. Phillips, an avian researcher with Colorado Parks and Wildlife, was cited only twice concerning an email exchange he held with the FWS regarding movement distance of sage-grouse in the Gunnison Basin. The FWS did not cite Dr. Messmer. In his peer review, Dr. Phillips was highly critical of the proposed rule stating “concern about the frequent use of speculation and commentaries as empirical evidence.” “Given the flaws in this review,” he concluded, “[the FWS] do[es] not present a convincing argument that [the Gunnison sage-grouse] should be listed as endangered.” Similarly, Dr. Messmer, a professor at Utah State University and a scientific advisor to the Utah Governor’s Greater Sage-grouse Task Force, expressed concern about the proposed rules’ “discussion of the biology and habitat used by Gunnison sage-grouse [being] based largely on greater sage-grouse literature rather than studies conducted in . . . Colorado and Utah.”
The four species of Texas salamanders in the House Resources Committee report are the Austin blind salamander, Jollyville Plateau salamander, Georgetown salamander and Salado salamander. In reference to them, the House Resources Committee report states:
FWS initiated its peer review process for the listing decision in July 2012. As part of this process, FWS first solicited peer reviews “of the portion of the listing decision that includes a discussion of the scientific information reviewed and our analysis (but not our conclusion regarding the status of the species or critical habitat boundaries).” According to the peer review plan, FWS planned to send requests for peer reviews to three “independent scientific reviewers with expertise in invertebrate ecology, conservation biology, and/or desert spring ecology.”
In the final rule, the FWS stated it had actually sought peer reviews from “22 knowledgeable individuals with scientific expertise concerning the hydrology, taxonomy, and ecology that is important to these salamander species.” Thirteen of the individuals FWS contacted provided a response. Several of the individuals were taxonomists whose focus was to evaluate the FWS’ proposal in light of an unpublished study questioning whether the salamanders were actually unique species.
Because FWS received contradictory public comments and “found new information relative to the listing determination,” FWS solicited a second round of peer review. During the second round, FWS contacted 20 peer reviewers who were asked to evaluate only two issues: (1) salamander demographics and (2) urban development and stream habitat. Eight peer reviewers provided responses.
While the 13 first round responses and eight second round responses were posted to the online docket for this rulemaking on Regulations.gov, the peer reviewers’ names and identifying information were redacted. The redactions undermine the public’s ability to hold FWS accountable for ensuring that the peer reviewers were independent. It also makes it impossible to discern whether the 20 peer reviewers FWS solicited for the second round represent a subset of the 22 peer reviewers solicited for the first round, and if so, why two of the original peer reviewers were later excluded.
It also appears that FWS explicitly asked the second round peer reviewers to focus on comments that disagreed with the FWS’ position. One anonymous second-round peer reviewer wrote: “As per your email, my review is focused on ‘significant public comments that disagree with the link we are making between watershed urbanization and salamander habitat degradation.'” It is unclear why the FWS would undergo a second round of peer review specifically focused on countering public comments that disagreed with FWS’ opinion.
In the final rule listing the species, FWS acknowledged that one reviewer believed the evidence supporting the uniqueness of one of the salamander species was “weak but suggestive” and admitted “that the understanding of the taxonomy of these salamander species can be strengthened by further research.”
The question then turns to what should be done about the Fish and Wildlife Service’s biases that can have significant impacts on whether and how species are listed and subsequently protected under the Endangered Species Act. One approach is to pass legislation to amend the Act, which the U.S. House of Representatives did in July when it passed, by a vote of 233-190, HR 4315, the 21st Century Endangered Species Transparency Act. According to the House Natural Resources Committee, the Act would:
Require data used by federal agencies for ESA listing decisions to be made publicly available and accessible through the Internet, while respecting state data privacy laws and private property.
Require the federal government to disclose to affected states data used prior to an ESA listing decision and it would require the “best available scientific and commercial data” used by the federal government to incorporate data provided by states, tribes, and local county governments.
Require the U.S. Fish and Wildlife Service to track, report to Congress, and make available online the federal taxpayer funds used to respond to ESA lawsuits, the number of employees dedicated to ESA litigation, and attorneys’ fees awarded in the course of ESA litigation and settlement agreements.
Prioritize species protection and protect taxpayer dollars by placing reasonable caps on attorneys’ fees to make the ESA consistent with existing federal law. For example, the federal government limits the prevailing attorneys’ fees to $125 per hour in most circumstances, including federal suits involving veterans, Social Security, and disability. But under the ESA, attorneys are being awarded huge sums, in many cases, at a rate much as $600 per hour.
While the first two of these provisions in particular would most likely improve data used under the Endangered Species Act, it is necessary for high quality data to be available in the first place. In many ways, states are best positioned to provide such data because they often have the necessary resources and expertise to fund and carry out research. Two states that have had success doing this are Colorado and Texas.
One example involves the black-tailed prairie dog in Colorado. In 1998, the U.S. Fish and Wildlife Service received two petitions to list the black-tailed prairie dog across hundreds of millions of acres in eleven states (Arizona, New Mexico, Texas, Oklahoma, Colorado, Kansas, Nebraska, Wyoming, North Dakota, South Dakota and Montana). One petition was from the National Wildlife Federation, the other from the Biodiversity Legal Foundation, the Predator Project and a private citizen. Based on the petitions, the Fish and Wildlife Service estimated the prairie dog occupied 93,000 acres in Colorado.
Officials and experts in Colorado were very sure this was a massive underestimate, but they had no hard data for the entire state. So Colorado decided to gather its own data in an effort to avert listing. According to Greg Walcher, who at the time was Executive Director of the Colorado Department of Natural Resources:
Colorado had good reason not to trust the federal data, which came from the National Wildlife Federation’s listing petition, had been changed several times with different petitions, and were based entirely on computer modeling. So the State commissioned an aerial survey to obtain actual counts of both the prairie dog numbers and their occupied habitat. For around $75,000 and about 3 months, we obtained specific information proving that there were thousands of times more animals than the federal estimate, and that they occupied more land in Colorado alone than the petitioners claimed for the entire country. Together with the State’s threatened lawsuit if an endangered listing ignored this data, the USFWS service was persuaded to issue instead a “warranted but precluded” finding – a temporary relief at best.
In response to the proposed listing, Colorado reportedly submitted comments to the Fish and Wildlife Service in 1999 signed by Greg Walcher, Ken Salazar, the state Attorney General who would go on to be Interior Secretary during the Obama administration, and Don Ament, the Agriculture Commissioner, in which they stated:
The anecdotal information that does exist indicates that black-tailed prairie dogs are widely distributed and common throughout their historic range, and that is particularly the case in eastern Colorado…Under the circumstances, and given the obvious impact to its citizens, it appears Colorado would have little choice than to move forward with litigation to protect its interests should the pending petition ultimately result in a final rule listing the black-tailed prairie dog as “threatened.”
In February 2000, the Fish and Wildlife Service found the prairie dog warranted listing but doing so was precluded by other higher priority endangered species issues. As Greg Walcher points out, Colorado knew this was a temporary reprieve and that the Service and the groups that submitted listing petitions would continue to try to get the black-tailed prairie dog listed.
So Colorado conducted several surveys, the first of which was published in October 2000 and consisted of field surveys that found black-tailed prairie dogs occupied 314,114 acres in the state. But Colorado decided to buttress this survey with the more extensive and comprehensive scientific aerial survey in 2002 that Greg Walcher referenced. The results, which were published in a peer reviewed journal, found the black-tailed prairie dog occupied 631,102 acres in Colorado, which was an almost sevenfold increase from the Fish and Wildlife Service’s estimate.
In 2006 and 2007, Colorado undertook another aerial survey, this one with the aim of ground-truthing aerial data and determining which prairie dog colonies were occupied and which were unoccupied in order to arrive at a more accurate count. As with the previous survey, this one was also published in a peer reviewed journal, but it found 788,674 acres occupied by the prairie dog, or 8.5 times the estimate the Fish and Wildlife Services was going to use to list the species. The authors of the study conclude, in the understated style typical for scientists writing in scholarly journals, “These results are useful to state and federal agencies and other conservation partners in determining the condition of the species when conducting status reviews.” Indeed.
Due to surveys by Colorado and other states, the Fish and Wildlife Service issued another finding on the black-tailed prairie dog because findings of “warranted but precluded” are reevaluated annually and the petitions to list are treated as still active. In 2004, the Service found the prairie dog did not warrant listing because state-based surveys, such as those carried out by Colorado, showed the prairie dog was far more common than originally believed.
Not surprisingly, a number of groups that specialize in filing lawsuits under the Endangered Species Act, but doing no meaningful actual conservation work, were very unhappy with the Fish and Wildlife Service’s decision. So in 2007 they, led by Forest Guardians (which later changed its name to Wild Earth Guardians), filed a legal complaint and yet another petition to list the black-tailed prairie dog. In 2009, the Fish and Wildlife Service again found the black-tailed prairie dog did not warrant listing, in large part because of the surveys and conservation efforts carried out by states.
One of the ironies of the 1999 petition to list the black-tailed prairie dog is that it caused harm to the species. “The petition has created difficulties for us,” said Dennis Flath, a biologist with the Montana Department of Fish, Wildlife and Parks, in an article in High Country News. “Now private landowners don’t want us to find out if there are any prairie dogs. They want to get rid of prairie dogs quickly, while they have the opportunity,” before listing occurs. The Montana Department of Agriculture would typically get 20 or so requests annually to help ranchers poison prairie dogs, which are perceived as competing with cattle for grass. Following the petition, however, the Department had already received approximately 30 such requests by March 1999.
Yet the National Wildlife Federation, which engages almost exclusively in “paper” conservation (e.g., lobbying, lawsuits, and press releases), did not grasp the reality of how the Endangered Species Act’s penalty-based approach backfires and causes harm to species. “This [petition] is the best possible use of the Endangered Species Act,” said then-Federation President Mark Van Putten in 1998. “If we all work together to make common-sense changes now, we can head off real problems later.” Van Putten also said, “Anyone who tries to turn this into a political football by stirring up fear and opposition is not looking out for the long-term welfare of this ecosystem or the people who depend on it.” It is ironic and telling that Van Putten equated states’ opposition to listing, which resulted in much more high quality research and data, as anti-conservation and anti-science.
Another state that has taken an innovative and successful approach to dealing with the Endangered Species Act is Texas. Over the past ten years Texas, under the leadership of Susan Combs, first as Agriculture Commissioner and for the past eight years as Comptroller, (but has been succeeded as Comptroller in January 2015 by Glen Hegar), has carried out a number initiatives, including state-based research on species that are proposed and candidates for listing. The signal success story so far is preventing the dunes sagebrush lizard from being listed, which the Fish and Wildlife Service proposed to list in 2010. A listing would have imposed significant costs on the oil, gas and agriculture industries because the lizard’s Permian Basin habitat in eastern New Mexico and western Texas produces 15% of U.S. oil, 5% of U.S. gas, and has significant amounts of agriculture.
In response, Texas provided funding to Texas A&M University to conduct surveys for the lizard in June 2011. The results, which were published in a report, included an additional 28 lizard populations in Texas, which was a substantial increase from the 3 Texas populations U.S. Fish and Wildlife Service cited in the proposed listing. These surveys were incorporated into the innovative conservation plan formulated by Texas for the lizard. When the federal government decided in 2012 that listing the dunes sagebrush lizard under the Endangered Species Act was not warranted, it cited the Texas Conservation Plan as a key factor in its decision.
As the examples of Colorado and Texas demonstrate, high quality state-based research and data can have significant impacts on whether species are listed under the Endangered Species Act. Unfortunately, the issue of the federal government using shoddy data in support of listing species is not a new phenomenon. In fact, it has been going on for the entire 41-year history of the Endangered Species Act, and in some instances even longer. This is the case for many of the species that were listed under the Endangered Species Act’s two predecessors; the 1966 Endangered Species Preservation Act and the 1969 Endangered Species Conservation Act. Many species listed under these two predecessor acts were carried over to the Endangered Species Act of 1973 with no substantive examination of their status, including whether they merited listing under the ESA.
For example, the American alligator is one of the species that to this day is cited by advocates of the ESA as one of the Act’s foremost success stories, despite that it never should have been carried over to the ESA because by 1973 its population was too abundant-almost 734,000-and healthy (increasing, actually) to merit listing. But by 1973 the alligator, due to vigorous public relations and lobbying efforts by the federal government and environmental pressure groups (especially the National Audubon Society), was one of the “charter” members (the term used then-Assistant Secretary for Fish, Wildlife and Parks, Nathaniel Reed) of the endangered species program and lobbying campaign that, because it brooked no dissent, bore more of a resemblance to a crusade than a scientifically based inquiry (a detailed profile of the Alligator and its regulatory history is available here).
Other examples are the Hawaiian hawk, Tinian monarch (a bird from the tropical Pacific island of Tinian), and three other birds from the tropical Pacific islands of Palau (Palau owl, Palau ground dove, and Palau fantail flycatcher). Detailed profiles of all these species are available here.
As documented in the profiles of these species, there are a number of factors that explain why the Fish and Wildlife Service uses shoddy data, misrepresents existing data, and ignores contrary data and opinions in order to justify listing species. First is a combination of a self-selecting process and politics. Those who work for the Fish and Wildlife Service tend to have a strong bias in favor of the Act, which includes a belief that the Endangered Species Act’s penalty-based approach to conserving imperiled species is productive. In turn, this leads to an institutional bias in favor of listing species, including ignoring contrary data and skewing existing data in support of listing. Second is the possibility that some of those who make listing decisions are lazy and incompetent. But this begs the question why the Fish and Wildlife Service, which is staffed by many competent biologists, would not put more effort in to acquiring higher quality data and would also so badly misrepresent existing data. Third is the Service has limited resources with which to evaluate the status of species. But this, too, begs the question of why in those instances when the agency devotes substantial resources to the listing of species, such as in the case of the Gunnison sage grouse, the Service clearly skews the process in favor of those data and scientists that support listing.
The use and misuse of data is an issue that has been a problem since before the Endangered Species Act’s passage in 1973, and it will continue to be a problem for the foreseeable future. While a step in the right direction is to amend the Act to require the Fish and Wildlife Service and National Marine Fisheries Service to incorporate state, municipal and tribal data, high quality data must be available in the first place so that it can be supplied to these agencies. As Colorado and Texas have shown, a highly successful and productive way to deal with this problem is for states to take the lead in funding, producing and distributing high quality data on endangered and potentially endangered species.