On September 9, The State of the Birds 2014 report will be released with much fanfare because the event typically features an announcement by the Secretary of Interior, and the report is widely seen as an authoritative report card on the health of U.S. birds. Also, the 2014 report’s release is timed around the 100th anniversary of the extinction of the passenger pigeon, which will give it an additional media boost. While the report will have important data, it has been marred by a pre-release promotional effort that contains a heavy political bent, misleading information, and faulty logic.
This is the fifth such report since 2009, and it is the result of a public-private partnership of the who’s who of the conservation community; most of the major bird-focused groups (e.g., National Audubon Society, Nature Conservancy, Ducks Unlimited, American Bird Conservancy), public sector entities (Smithsonian Institution, Cornell Lab of Ornithology, and the Association of Fish and Wildlife Agencies), most federal land management and research agencies (U.S. Fish and Wildlife Service, U.S. Department of Agriculture, National Park Service, U.S. Forest Service, and U.S. Geological Survey), and even Environment Canada, that country’s environmental agency. Extinction appears to be the theme of the 2014 report; the report’s website features a painting of a passenger pigeon across the top of each page, the report’s online foreward leads with the story of the pigeon, and the website has an entire section devoted to preventing the extinction of the 230 species on the report’s Watch List of “birds most in need of conservation action.”
Regrettably, an effort to promote the pending release of the 2014 report detracts from both the overall report and the important issue of extinction by politicizing them and making a wild, unsupportable claim. Consider the following assertion by John Fitzpatrick-PhD biologist and Executive Director of the nation’s foremost academic institution for the study of birds, the Cornell Lab of Ornithology, the organization that, in addition to being one of the report’s collaborators is identified as one of the two producers of the report, the primary contact for inquiries, and apparently did “the bulk of the writing,” according to a recommendation from the report’s executive committee-in a New York Times op-ed about the report’s pending release:
“These days the Endangered Species Act seems to be considered by many to be a hostile government action, as evidenced most recently by intense political responses, including efforts in Congress to block adding the sage grouse to the endangered species list, and to weaken key provisions of the act. Yet, on this centenary of Martha’s death, it bears reflection that a strong federal Endangered Species Act would have saved the passenger pigeon a century and a half ago.”
The second assertion-a reference to the extinction of the passenger pigeon in 1914, the last of which was named Martha and lived in the Cincinnati zoo-is the easiest to refute and clearly shows Fitzpatrick’s blatant political posturing. In making this assertion, Fitzpatrick commits two fundamental errors of reasoning, one of which is engaging in presentism, which the Oxford Dictionary defines as; “Uncritical adherence to present-day attitudes, especially the tendency to interpret past events in terms of modern values and concepts.” While the Endangered Species Act may have prevented the passenger pigeon’s extinction, it is just as possible it may not have for a variety of reasons, the foremost of which is the Act’s penalty-based approach is counterproductive to the goal of species conservation (this is discussed in greater depth below).
Fitzpatrick also makes an elementary error that any college freshman soon learns to avoid: passing off one’s own opinions as fact. In this case, he categorically states the Endangered Species Act would have prevented the extinction of the passenger pigeon. Perhaps. But perhaps not. There is simply no way of knowing conclusively.
(Fitzpatrick is also the most prominent proponent of the now widely discredited view that the ivory-billed woodpecker was seen in Arkansas in 2004 and 2005, after last being sighted in 1944 in Louisiana and believed for decades to be extinct. Fitzpatrick is the lead co-author of a 2005 scholarly article presenting evidence of the ivory-billed woodpecker’s existence in Arkansas, as well as the public face of those making this claim, which has included many media interviews and being congratulated by the Secretary of Interior at a 2005 news conference that gained international attention. Soon, however, doubts began to surface about the strength of the evidence and the validity of the analysis and logic Fitzpatrick and colleagues used to make their determination. As articles and letters to the editors that cast increasing doubt on the claim of the ivory-billed woodpecker’s rediscovery accumulated in the scholarly literature (for example, here, here and here), Fitzpatrick and colleagues were, and remain, convinced about the rediscovery. Along with the body of scientific evidence that has by now widely discredited the existence of an ivory-billed woodpecker in Arkansas in the mid-2000s, are two non-scholarly examinations that shed a great deal of light on the issue: an article by science writer Erik Stokstad that documents troubling behavior of and statements by Fitzpatrick, including asking Jerome Jackson, professor of biology and recognized as the leading authority on the ivory-billed woodpecker, to pull from publication a letter to the editor of a scholarly publication critical of the evidence used by Fitzpatrick et al., but which Jackson refused to do; a documentary film titled “Ghost Bird” that deftly explores the scientific and social issues surrounding the woodpecker’s alleged rediscovery; and a review of the film by Jerome Jackson. The elusive, and in all likelihood never-existent, ivory-billed woodpecker in Arkansas has not been spotted since 2004 and 2005, despite tens of experts and hundreds of amateurs spending untold thousands of hours searching, which included the use of sophisticated electronic equipment. Despite that the tide of evidence has turned strongly against him, Fitzpatrick still holds firm in his view that an ivory-billed woodpecker was seen in Arkansas in the mid-2000s. Perhaps the most apt characterization of Fitzpatrick is the title of an article about him, and his ivory-billed woodpecker quest titled “A True Believer.”)
As for the issue of Fitzpatrick’s 2014 op-ed and the Endangered Species Act, there is, however, a large a growing body of evidence that the Act harms some, and perhaps many, of the very species it’s supposed to protect. Had the Act been around when the passenger pigeon was in trouble, it is plausible the law would have hastened the bird’s decline. The reason is that the Endangered Species Act’s severe penalties-$100,000 fine and/or 1 year in jail for harming one bird, egg, or even habitat-turn endangered species in to financial liabilities and unwanted guests. As a result, landowners seek to rid their property of species and habitat. Protecting endangered species is often portrayed as a public good, especially by the Endangered Species Act’s proponents. But if this is the case, then why are those landowners who harbor endangered species forced to bear this burden for the entire country?
Apparently Fitzpatrick is unaware of evidence of harm to species caused by the Endangered Species Act. For years, critics of the Act who pointed this out were dismissed by supporters of the law until a seminal event in November 1994. Michael Bean, then with the Environmental Defense Fund, currently at the Interior Department, and widely acknowledged as the foremost expert on the Act and U.S. Wildlife law, spoke at a seminar for U.S. Fish and Wildlife Service employees at which he said:
“There is, however, increasing evidence that at least some private landowners are actively managing their land so as to avoid potential endangered species problems…And they’re trying to avoid these problems by avoiding having endangered species on their property. Because the [red-cockaded] woodpecker primarily uses older trees for both nesting and foraging, some landowners are deliberately harvesting their trees before they reach sufficient age to attract woodpeckers…Because the woodpecker prefers open savannah-like forest conditions with a minimum of hardwood understory, a condition that historically was maintained by regular and recurrent fires…landowners today can eliminate that characteristic of a preferred habitat for the woodpecker simply by refraining from understory management…and eventually their endangered species problems will disappear as the encroachment of that hardwood understory converts a savannah-like pine forest in to a dense mixed hardwood forest. Because red-cockaded woodpeckers tend to prefer longleaf pine over other species, landowners thinking about what species to plant after harvest or on former forest land I think regard the choice of planting longleaf pine as a foolish choice because of the greater potential for having woodpecker problems in the future…Now it’s important to recognize that all of these actions that landowners are either taking or threatening to take are not the result of malice toward the red-cockaded woodpecker, not the result of malice toward the environment.Rather, they’re fairly rational decisions motivated by a desire to avoid potentially significant economic constraints. In short, they’re really nothing more than a predictable response to the familiar perverse incentives that sometimes accompany regulatory programs.”
This remarkable admission was followed by other similar statements from prominent supporters of the Endangered Species Act. In 1995, George Frampton, then Assistant Secretary of the Interior for Fish, Wildlife and Parks, said to the New York Times:
“From a private landowner’s point of view, the Endangered Species Act looks like a nuclear weapon.”
Also in 1995, the U.S. Fish and Wildlife Service made the following admission about the spotted owl’s habitat in the Pacific Northwest:
“Despite their normal practices, however, the small landowners of the Northwest have resorted to ‘panic cutting’ over their fear of Federal restrictions to protect [spotted] owls… this concern or fear has accelerated harvest rotations in an effort to avoid the regrowth of habitat that is useable by owls.”
And in 1999, several university based researchers, including Reed Noss, the well-known academic and advocate (at least in endangered species circles) stated:
“[T]he regulatory approach to conserving endangered species and diminishing habitats has created anti-conservation sentiment among many private landowners who view endangered species as economic liabilities…Landowners fear a decline in value of their properties because the ESA restricts future land-use options where threatened or endangered species are found but makes no provisions for compensation. Consequently, endangered species are perceived by many landowners as a financial liability, resulting in anti-conservation incentives because maintaining high-quality habitats that harbor or attract endangered species would represent a gamble against loss of future economic opportunities.”
The issue of harm to species caused by the Endangered Species Act began to attract such widespread attention that a number of academics conducted research to see if it was true.
Dean Lueck and Jeffrey Michael, economists at the Universities of Arizona and the Pacific, respectively, found that landowners in North Carolina cut 15,144 acres of pine trees preemptively in efforts to deny the red-cockaded woodpecker habitat. Red-cockaded woodpeckers will only nest in mature, live pine trees, preferably at least 50-80 years of age. So if landowners harvest trees before they reach this age they can usually prevent woodpeckers from moving in. The 15,144 acres preemptively cut in North Carolina could have supported 76 woodpecker colonies, which consist of an adult pair and one or more “helpers” that are usually offspring from the previous year. Most of this lost habitat, 13,318 acres, is in the state’s central Sandhills region, which alone could have supported 67 colonies. The federal recovery plan for the red-cockaded woodpecker estimates the Sandhills region has 683 of the 700 colonies needed to meet the region’s recovery goal. So, that goal could have been exceeded by 50 colonies had the habitat not been destroyed in direct response to the Endangered Species Act. It’s not hard to understand why landowners try to make their property inhospitable to the red-cockaded woodpecker because based on Fish and Wildlife Service habitat requirements, as much as $200,000 of timber is locked up for every colony.
Other research has reached similar conclusions. Daowei Zhang, an economist at Auburn University, found that landowners within a one-mile radius of a red-cockaded woodpecker colony were 25% more likely to harvest their timber than landowners who were not within a one-mile radius. Furthermore, landowners who did harvest timber were 21% more likely to clear-cut, rather than selectively cut, due to the desire to deny woodpeckers habitat.
The Endangered Species Act’s penalties also have long-term implications for species. In a separate study, Zhang and Warren Flick, an economist at the University of Georgia, found that private, non-industrial forest owners-who own most of the forest in the southern U.S. and typically have plots of a few acres to several hundred acres-in the Sandhills region of North Carolina and South Carolina would be 5% less likely to reforest the land once it had been cut if their land was near red-cockaded woodpeckers. While 5% might not seem to be much, it is for an endangered species like the woodpecker that needs every bit of habitat to survive.
The Endangered Species Act’s punishment-based approach to conservation, which causes landowners to rid their property of species and habitat, is most likely why endangered species are faring so much worse on private land than public land. According to the Environmental Defense Fund, the ratio of declining to improving species on private land is a disturbing 9:1, while on federal land it’s a much better 1.5:1.
Private lands are the linchpin to endangered species conservation because more species have more of their habitat on private than public land. Fully 78% of endangered species depend on private land for all or some of their habitat, compared to 50% for federal land, and 91% of all endangered species had at least some habitat on nonfederal land. In addition, almost two-thirds of endangered species, have 81-100% of their habitat on nonfederal land. And more than one-third of species have all of their habitat on nonfederal land. Nonfederal land, “the vast majority of which is privately-owned land,” according to Michael Bean and his then-colleagues at the Environmental Defense Fund, Robert Bonnie, Tim Male and Tim Searchinger, will decide the success of endangered species conservation efforts.
Fitzpatrick’s second assertion in his op-ed (“These days the Endangered Species Act seems to be considered by many to be a hostile government action, as evidenced most recently by intense political responses, including efforts in Congress to block adding the sage grouse to the endangered species list, and to weaken key provisions of the act.”) gives only one side of the picture.
While Fitzpatrick casts aspersions on Republicans, because he only mentions Congressional efforts to block the sage grouse from being listed, which any internet search reveals have been led by Republicans, in reality efforts to keep the bird off the endangered species list have been very bipartisan. On April 25, three members of Congress, Sen. Mark Udall (Democrat-Colorado), Sen. Michael Bennett (Republican-Utah), and Rep. Scott Tipton (Republican-Colorado), wrote a letter to Dan Ashe, Director of the U.S. Fish and Wildlife Service, requesting an extension of the May 12 deadline imposed by a lawsuit to list the Gunnison sage grouse, a subspecies that lives in western Colorado and eastern Utah. The letter stated:
“We feel that additional time is needed to consider recent and ongoing local habitat conservation efforts. We also feel a final listing decision handed down on May 12th appears likely to be followed by years of protracted litigation, regardless of FWS’ decision. Additional litigation will only prolong uncertainty and may further imperil the bird’s habitat while the matter is considered by the courts.”
On May 5 the Fish and Wildlife Service filed a motion in federal district court to extend the listing deadline by six months to November 12. In response, all three members of Congress expressed their appreciation. “Today’s actions are a win for Colorado and everyone working to save this bird,” said Sen. Udall.
Fitzpatrick also fails to mention the highly bipartisan nature of state-based sage grouse conservation efforts. The eleven states that comprise the sage grouse’s 165 million acre range are where the action is because they have been most heavily involved in conservation efforts for years, in some cases for more than a decade-and-a-half, as the Reason Foundation has documented.
The Western Governors’ Association, a bipartisan group that represents the governors of 19 western states, has been involved in sage grouse conservation efforts since at least 2004, when it released two reports; a compilation of state-based initiatives across the 11 sage grouse range states, and a collection of successful examples and strategies to conserve the bird. Starting in 2011, the Association began releasing an annual “inventory” of state and county sage grouse conservation efforts. With the publication of the 2013 Inventory, Governors Hickenlooper (Democrat-Colorado and then-Chair of the Association) and Sandoval (Republican-Nevada, and then-Vice Chair) sent a letter in February 2014 to Interior Secretary Sally Jewell in which they stated:
“This third annual inventory illustrates the many ways that states and counties are taking proactive, voluntary steps to conserve the species – steps which are consistent with the Conservation Objectives Team report, and other conservation requirements, issued by the [U.S. Fish and Wildlife] Service. These steps preclude the need to include the greater sage-grouse on the federal endangered species list.”
In addition, in early 2012, following a 2011 meeting with then-Interior Secretary Ken Salazar, western governors formed the State-Federal Sage Grouse Taskforce co-chaired by Gov. Hickenlooper and Gov. Mead (Republican-Wyoming). A major focus of the Taskforce is to keep the sage grouse off the endangered species list because of the anticipated harm the Act will do to conservation efforts and natural-resource economies in the eleven range states.
The Taskforce met three times in early 2012, and in June of that year the co-chairs, which by that point included the director of the Bureau of Land Management, sent a letter and report to Secretary Salazar outlining how the Taskforce planned to conserve the sage grouse and keep it off the endangered species list. “We are optimistic that the process described in the attached report will deliver the range-wide conservation necessary by 2015 to ensure that sage-grouse will not warrant protections under the Endangered Species Act while sustaining strong Western economies,” the letter stated.
Western governors know very well that if the sage grouse is listed state and county conservation efforts will wither in the face of the Endangered Species Act’s punishment-based approach and a one-size-fits-all solution from Washington, D.C. “We can probably do a better job with our local programs and partnerships than Fish and Wildlife can, trying to regulate from afar,” Gov. Hickenlooper stated to the Washington Post. “Listing the bird would be the worst thing for it,” Greg Sheehan, Director of the Utah Division of Wildlife Resources, said in the Deseret News. “It would all but do away with any of the conservation that is in place and it would not mean any more federal funding. It would not help the bird.”
Suffice it to say, all of this work by states over a number of years to prevent the sage grouse’s listing under the Endangered Species Act bears no resemblance to the partisan picture painted by John Fitzpatrick. Quite the opposite. In fact, it’s very much an example of bipartisanship.
But the bigger picture, which Fitzpatrick misses, is the likely harm to the sage grouse if it’s listed under the Endangered Species Act. For a real-world example of how this would work, look no further than efforts to conserve the Bi-State greater sage grouse population that straddles the California-Nevada border. In 2010, the U.S. Department of Agriculture, as part of its conservation program called the Sage Grouse Initiative (SGI), began to accept applications from ranchers interested in conserving the bird. The number of applications from ranchers in the Bi-State region steadily rose, from six in 2010 to twenty-four by 2013. But last year the bottom fell out after the U.S. Fish and Wildlife Service proposed to list the Bi-State sage grouse in October 2013. As of April 2014, there were only three applications because ranchers were scared off by the prospect of being penalized by the Endangered Species Act. “Many [ranchers] express desire to participate in SGI, but are fearful that listing of the Bi-State sage-grouse will reduce or eliminate their use of Federal grazing allotments, thereby rendering their private agricultural operations unviable,” according to Jason Weller, head of the U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS), the agency in charge of the Sage Grouse Initiative. Weller adds:
“NRCS is determined to provide SGI support until the threats facing the sage-grouse are addressed. It is important to note, however, that NRCS does not directly implement any conservation practices on our own. Instead, our voluntary and incentive-based approach depends completely on the willingness of private landowners to voluntarily sign up, agree to implement beneficial practices, and invest their own resources to put conservation on the ground. Because of this, any action, such as an Endangered Species Act (ESA) listing, or otherwise, that negatively impacts private landowner desire ultimately affects our ability to implement SGI in the future.”
In addition to the foregoing faulty logic, inaccuracies, and unawareness of the harm caused by the Endangered Species Act, John Fitzgerald, in his op-ed about the forthcoming 2014 State of the Birds Report, makes a very misleading assertion about two bird species: “Because birds are such sensitive barometers of landscape health, these measures help us identify deeper environmental issues that demand attention. Peregrine falcons and bald eagles, for example, demonstrated that our underregulated pesticide habits were poisoning the environment, and us. But once we knew this, we acted decisively – and it worked. Both of these species are now off the endangered species list, and our environment is vastly healthier than when these species were declining precipitously.”
This statement is misleading is a couple of way, one of which is Fitzpatrick gives the impression the Endangered Species Act was responsible for decisive action to regulate the pesticides that caused the precipitous decline of the bald eagle (albeit only in much of lower 48 states because populations in Alaska and British Columbia, which comprised 70% of the species’ total population, were so large the species was never in danger of extinction, only extirpation from large parts of its range) and peregrine falcon. In fact, it was the pesticide DDT that caused this decline by inhibiting calcium deposition to eggs, which in turn cased eggs to be so thin-shelled they were susceptible to breaking or being unviable. But DDT was banned in 1972, one year before the Endangered Species Act’s passage. Therefore, the Act cannot be credited with the ban.
Furthermore, experts acknowledge the 1972 DDT ban is the paramount cause of these species rebounding. “Nearly everyone agrees that the key to the eagle’s resurgence – even more so than the Endangered Species Act – was the banning of the use of the insecticide DDT in this country in 1972,” the National Audubon Society admits in a story in the Christian Science Monitor. “Researchers believe that the main reason for the increasing [bald eagle] count is the population rebound after the pesticide DDT was banned in 1972,” according to Karen Steenhof, wildlife biologist with the U.S. Geological Survey, and the lead researcher for the 1996-2000 nationwide midwinter bald eagle count. “Declines associated with pesticides during the 1950s may have been more severe in the Northeast than in other parts of the country and may be the reason counts are increasing more there than elsewhere in the country.”
As for the peregrine falcon, there were two sub-species listed under the Endangered Species Act; the American, or anatum, which lives in large parts of the lower 48 states and Alaska, and the Arctic, or tundrius, that lives in Alaska north of the tree line. Yet when most people mention the peregrine in the U.S. they are referring to American peregrine. “We all acknowledge that the primary reason that this sub-species has recovered is that we restricted DDT,” said Robert Mesta, the U.S. Fish & Wildlife Service biologist in charge of delisting the American peregrine falcon in 1999. “It was amazing how the birds reacted to the restriction of DDT. Once that was no longer in the environment, they just sprung back.” No less authorities than Tom Cade and Bill Burnham, founder and late president, respectively, of the Peregrine Fund, the organization that initiated and led peregrine recovery efforts, stated (in the book they edited, Return of the Peregrine, p.13): “Let there be no doubt: the banning of DDT in 1972 was the single most important action taken to ensure the survival and recovery of the Peregrine Falcon in North America. Without it, we would not have celebrated the delisting of the American Peregrine in 1999, for it made possible everything good that happened to the Peregrine in the last decades of the 20th Century.”
Cade and Burnham also address the broader issue of the role played by the Endangered Species Act in the American peregrine’s recovery (p.277, Return of the Peregrine):
“Did the Peregrine recover primarily because of the ESA, as [Interior] Secretary Babbitt proclaimed [in 1999 when delisting occurred]? We have explained that protection by the ESA for the Peregrine provided no measurable benefit to recovery of the species and [the Act] was a regular, if not constant, obstacle because of its emphasis on law enforcement and permitting.”
(For those wanting more details, Reason has extensive information on the conservation of these three birds: the bald eagle here, here, and here; the American peregrine falcon here and here; and the Arctic peregrine falcon here).
John Fitzpatrick, and The State of the Birds 2014 report, typify a viewpoint that continues to place enormous importance on the Endangered Species Act, despite growing evidence the Act is causing widespread harm to species. The website for the 2014 report asserts “the Endangered Species Act remains the primary line of defense against extinction.” But given that the Act may well be causing extensive harm to endangered species, how much faith should be put in this line of defense? And Fitzpatrick states “The Endangered Species Act is by far the most powerful piece of environmental legislation ever passed. Today, the act continues to be a source of on-the-ground success – a steadfast reminder that timely conservation pays off.”
While there are notable success stories, like the California condor cited by Fitzpatrick, the larger and more important issue is whether the Endangered Species Act is causing more harm than good. Unfortunately, there are strong indications more harm may be the case, as some of the foregoing evidence indicates.
Conservation, especially for imperiled species, is often complex, time consuming, and difficult. It doesn’t reduce to simplistic morality tales of heroic defenders versus villainous opponents of the Endangered Species Act. So if you’re looking for thoughtful and accurate information on the issue of endangered species conservation, you would probably be much better served looking to sources other than the forthcoming State of the Birds 2014 report. Yet the report’s release is also a good opportunity to reflect on how this country has gone about conserving endangered species for the past forty years and whether there can be better approaches to this important issue.