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A Difference in Philosophy - Moving Forward or Treading Water

By Rep. Dan Newhouse (R-Wash.) and Karen Budd-Falen

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It has been 50 years since Congress enacted the Endangered Species Act (ESA), and a clear philosophical difference has emerged in those monitoring its enforcement. Some believe the goal of the ESA should be to protect listed species by affirmatively taking actions to recover them and get them off the list. And those people are right. The Congressional Western Caucus and others who advocate for rural America are in that camp. We recognize that command and control, harsh penalties, and eliminating the prosperity of our citizens by hampering food security and energy independence is bad for both American citizens and for the endangered species themselves. The other camp believes the goal of the ESA is to get species listed and leave them on “life support” while shutting down productive land uses and private property rights. The latter is the route that the federal government is choosing to take — which is neither good for the plants and animals needing protection nor for America.

Today, there are 1,389 ESA-listed species, and less than one-half of them have completed recovery plans, even though the ESA mandates the completion of recovery plans. Because of the ESA’s authority, there are 107 million acres of designated critical habitat and 3 million acres under additional review. In addition, federal agencies are actively considering another 72 species for listing, followed by another 307 listing petitions that have to be reviewed. The listing petitions are requests which can include multiple species (for example, one petition argues that 53 reptiles and amphibians throughout the United States should be listed; one petition argues for the listing of 32 snails and slugs on the west coast; one requests listing of 13 mussel species in Texas; and on and on). If all these species are added to the list, one can only imagine the negative impact on private property ownership.

The actual recovery statistics are no better. Out of the 1,389 listed species, only 72 have been recovered and removed from the list in the past 50 years. That is a 5 percent “success” rate; only when it comes to the federal government would 5 percent be deemed a passing grade. And to highlight the competence of the federal government to be making these decisions: seven were removed because federal agencies found other populations of the species, and realized they were not endangered; 20 were removed because they did not meet the definition of a threatened or endangered species or because the federal agencies miscounted the number in the first place; and 11 have gone extinct.

The failure to recover listed endangered species is not just a western or public lands issue. There are approximately 1.3 billion acres of private land in the United States and 926 of the currently listed species are on those private lands, which means cooperation with these communities and landowners is crucial for recovery. Unfortunately, ESA regulations often negatively affect the very people we need as conservation partners through land use restrictions, reduced property values, and costly permitting requirements. In effect, the law makes enemies out of the people most critical to species recovery.

But there is another way to protect species and get them off the list. Since 1996, with the creation of “conservation benefit agreements,” federal agencies partnering with private landowners have eliminated the need to list 85 species because these voluntary landowner agreements precluded the need for listing the species. In other words, voluntary landowner agreements show greater success rates than placing species on the list.

So, the question for the next 50 years — does the American public really want to see plants and animals recovered, or just placed on a list? The data shows that voluntary landowner cooperation works. On the 50th anniversary of the ESA, the Congressional Western Caucus is committed to making these voluntary agreements more robust, more transparent, and statutorily protected. And that is something we can celebrate.

Dan Newhouse represents Washington’s 4th District and serves as chairman of the Congressional Western Caucus. Karen Budd-Falen served as deputy solicitor for Department of Interior from 2018-2020 and was the lead attorney in revising the regulations implementing Endangered Species Act. She is a senior partner in Wyoming law firm that specializes in property rights.


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