31 ELR 11302 | Environmental Law Reporter | copyright © 2001 | All rights reserved

The Rhetoric of Delisting Species Under the Endangered Species Act: How to Declare Victory Without Winning the War

The author is an Associate Professor at the University of Denver College of Law. Many thanks to Holly Doremus for reviewing a draft of this Article, and to Kirstin McMillan and Deann Snider, students at the University of Denver College of Law, without whom this Article would have been impossible.

[31 ELR 11302]

The recovery and delisting of species protected under the Endangered Species Act (ESA) is the coming fashion and no mistake.¹ This spring many of us followed with interest the nesting trevails of California condors in Arizona and California as the birds endeavored to lay the foundations for a comeback.² At the same time, we watched with mixed feelings building pressure to delist gray wolves and the announced delisting of the Aleutian Canada geese.³ The U.S. Fish and Wildlife Service (FWS) has committed itself to "recovery" as the goal for its species protection program.⁴ Unfortunately, under the provisions of the law and the logic of politics there is great pressure to measure the success of recovery efforts in terms of species delisting. Recovery may have the power to transform the popular image of the ESA from a statute about stopping development into a statute about preserving species.⁵ However, only delisting can, in theory, decouple protection of biodiversity from the much maligned business of getting government permits and dealings with federal officials.

Like it or not, the common notions of recovery and delisting — bringing species to the point at which they are so numerous and so well distributed in sufficient quantities of perpetually secure habitat that the protections provided by the ESA become unnecessary — will not become a realistic aspiration for any significant number of species any time in the foreseeable future.⁶ We are still in the middle of a biological crisis; human population, climate change, and wildlife habitat destruction continue to reduce the chances for nonhuman species around the world and on this continent. The numbers of species being pushed to extinction still increases.

Yet there is political pressure to "show results" by declaring species recovered and removing them from the lists of protected species.⁷ Can the federal government emphasize species recovery and delisting in the face of collapsing global ecosystems? The answer, of course, is yes. The real question is how.

For the past decade, in an attempt to achieve this, the federal government has begun to develop a repertoire of delisting rhetoric. I use the word "rhetoric" in its traditional sense as "the art of using language so as to persuade or influence others."⁸ The rhetoric of delisting provides arguments for delisting by accentuating the positive without necessarily dealing with the full host of threats facing the species in question. One of the advantages of the word rhetoric is that it is not necessarily dismissive. Rhetoric can be used in a good cause or a bad one. I do not assert that the species in question should not be or should not have been delisted. However, it is also true that, as the much-used alliterative phrase suggests, "rhetoric and reality" may be at odds.

This Article is very much a companion to Prof. Holly Doremus' excellent Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation published in [31 ELR 11303] these pages in 2000.⁹ In large degree, I endorse Professor Doremus' conclusions about the substantive future of delisting. However, where Professor Doremus focuses her energies on uncovering the real prospects for delisting, I satisfy myself with considering the forms of argument used in the service of delisting. It is unfortunate and unsurprising that forms of argument are often of more immediate concern to lawyers than is the justice of the cause they champion.

Reviewing final and proposed delisting rules and the rhetoric they contain can tell us a great deal about what the future of delisting has in store. By identifying rhetorical devices now — by giving them names — we can increase our sophistication in evaluating current and future proposed delistings. Further, perhaps, contemplating the rhetoric of delisting will give us an idea of the sort of thinking recovery actually requires.¹⁰ This, in turn, may allow us to tell the difference between broader efforts to preserve the web of life on the planet of which protected species are part and narrower efforts to provide no more than a plausible basis for delisting.

What the Act Says

The ESA, its legislative history and the regulation promulgated under its authority provide the stage on which these rhetorical exercises are and will be played out. Accordingly, it is important to understand them and what they say and do not say about recovery and delisting.

The ESA became law in 1973.¹¹ The stated purpose of the Act is and has always been "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."¹² The Act defines the term "conserve" to include "methods and procedures necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the chapter are no longer necessary."¹³ In other words, the ESA mandates recovery and eventual delisting when possible.

Listing

To understand "delisting" one needs to know a little bit about listing and what it means. The ESA protects "listed" species. Section 4 of the Act¹⁴ requires the federal designation or "listing" of both endangered and threatened species of plants and animals. An endangered species is any species "in danger of extinction through all or a significant portion of its range."¹⁵ A threatened species is any species "which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."¹⁶

The actual trigger for protection is an administrative listing process. After completing its own, often lengthy, internal information-gathering process the FWS or the National Marine Fisheries Service (NMFS) publishes a proposed rule for listing of a species as threatened or endangered, solicits comments, and then promulgates a final rule listing the species or designating the critical habitat.¹⁷ Of late, the agency listing process has been driven in large part by citizen petitions for listing authorized under the Act.¹⁸ The petition process starts with someone filing an administrative petition to list a species as either endangered or threatened.¹⁹ Within 12 months after receiving an adequate petition, the FWS/NMFS must determine (in most cases) whether the petitioned action is warranted or not.²⁰

The agencies charged with the task of determining whether listing is warranted must consider five criteria set forth in § 4(a)(1) of the Act: (1) the present or threatened destruction, modification, or curtailment of habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4) the inadequacy of existing regulatory mechanisms, or (5) other natural or man-made factors affecting continued existence.²¹

Protections

Once a species is listed, its members become entitled to certain protections. Section 7(a)(2) of the ESA requires that all federal agencies shall "in consultation with" the FWS or the NMFS "ensure" that actions they authorize, fund or carry out are "not likely to jeopardize the continued existence" of any threatened and endangered species.²²

Section 9(a)(1)²³ prohibits "taking" any endangered species of fish or wildlife. The prohibition applies to "any person." Section 3(19)²⁴ defines take to include "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."²⁵ Section 9(a)(1) protects a smaller group of species than [31 ELR 11304] § 7(a)(2) — endangered fish and wildlife and most threatened fish and wildlife by regulation²⁶ — from a broader range of threats, including threats to individual species members not amounting to jeopardy and threats from non-federal parties. In the late 1980s, a number of cases demonstrated § 9's ability to reach a variety of threats beyond the scope of § 7(a)(2).²⁷

Recovery and Delisting

An obvious problem with this system as it has developed over the past one-quarter century is that it identifies species in need of protection and provides them with some, often limited, protection, but does very little to "recover" them: increase their numbers and distribution to healthy levels.

Section 4(f) of the ESA²⁸ imposes a duty on those federal agencies primarily responsible for protecting threatened and endangered species.²⁹ Under that provision, the FWS and the NMFS must "develop and implement" documents called "recovery plans" for "the conservation and survival of endangered species and threatened species" unless there is a finding that "such a plan will not promote the conservation of the species."³⁰ To the "maximum extent practicable" each plan should include "a description of such site-specific management actions as may be necessary to achieve the plan's goal,"³¹ "objective measurable criteria which, when met, would result in a determination … that the species be removed from the list"³² and "estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal …."³³

Beyond recovery planning, the ESA is silent on the question of delisting. While the Act's purpose, "conservation," requires what is "necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." The neologisms "delist" and "delisting" do not appear in the law.

Legislative history is also less than illuminating. An influential 1973 Senate report accompanying passage of the original act emphasizes the purpose of the act is to

conserve, protect, and restore the ecosystems upon which these species depend; providing programs to conserve, protect, restore, and propagate these species; and insuring that all federal agencies cooperate in protection efforts.³⁴

A House of Representatives report accompanying the 1978 Amendments to the Act mentions, almost in passing, that the Act authorizes delisting "in much the same manner as the initial listing." The report also muses that recovery "so that, in time, they can be returned to a healthy state and removed from the list," is, in some sense, the real purpose of the law.³⁵ A 1982 House of Representatives report makes the first point more forcefully, asserting that "delisting should be based on the same criteria and conducted according to the identical procedures as listing."³⁶

Joint FWS and NMFS regulations do wrestle with the notion of delisting, but without compelling results. 50 C.F.R. § 424.11 identifies "factors for listing, delisting, or reclassifying species." The regulation provides that any delisting decision be made "solely on the basis of the best available scientific and commercial information regarding a species' status, without reference to possible economic or other impacts of such determination."³⁷ The regulation then reiterates the five factors to be considered in listing (the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or man-made factors affecting its continued existence), and provides that the same factors will be considered in making delisting decisions.³⁸

The regulation also provides that "[a] species may be delisted only if such data substantiate that it is neither endangered nor threatened as a result of one of three things: extinction, recovery or error in listing."³⁹ As to recovery, the regulation notes that the principal goal of the FWS and the NMFS is to return listed species to a point at which protection under the Act is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened. The 1984 Federal Register entry [31 ELR 11305] promulgating § 424.11 contains no substantive discussion of delisting.⁴⁰

Once a species has been delisted, all of the established protections provided by the ESA fall away. Section 4(g) requires only that the FWS or the NMFS "implement a system in cooperation with the States to monitor effectively for not less than five years the status of all species which have recovered"⁴¹ and "make prompt use of the authority under paragraph 7 of subsection (b) [emergency listings] of this section to prevent a significant risk to the well being of any such recovered species."⁴² Some environmental groups assert that the FWS has failed to comply with even these modest requirements.⁴³ On July 31, 2001, the FWS announced the availability of a proposed monitoring plan for the American peregrine falcon.⁴⁴ The draft plan is merely five pages long and contains little in the way of either substance or rhetoric.⁴⁵

The Rhetorical Link Between Recovery and Delisting

Recovery efforts can be, in themselves, wonderful things, with virtues entirely unrelated to delisting. In many cases, it makes much more sense to focus on bringing species back to health than on protecting small populations from identifiable threats. This dynamic quality of nature makes this so, not just to further species recovery, but to ensure species survival. The existence of a large, well-distributed species population increases the chance that the species will survive one of the catastrophic events — floods, fires, epidemics or oil spills — that are part of life on this planet. While the survival of any species over time is a matter of chance, the chances go up when the number and size of populations are greater. As Reed Noss pointed out,

species well distributed across their native range are less susceptible to extinction than species confined to small portions of their range…. The idea here is that a widely distributed species will be unlikely to experience a catastrophe, disturbance, or other negative influence across its entire range at once.⁴⁶

Unfortunately, ESA rhetoric over the past two decades has forged a link between the idea of recovery (bringing species back to health) and the notion of delisting (removing the species from the list of protected species). In 1978, Congress first added what is now § 4(f), "the recovery planning provision," to the ESA.⁴⁷ Congress added the provision at the urging of public interest groups, supported by the FWS,⁴⁸ to facilitate funding for a well-established administrative process.⁴⁹ Although, "conservation" was an important consideration, delisting was not the only goal. The original authors of the 1978 provision, informed by agency practice, contemplated a balanced approach, suggesting that recovery planning might function to "ensure the survival of species" as well as provide for their "conservation."⁵⁰

The "Reagan revolution" of the early 1980s helped shift the emphasis from recovery as a goal in itself to recovery as a prelude to delisting. In 1982, as Congress considered further amendments to the ESA, it continued to discuss recovery in terms of returning species populations to "healthy levels."⁵¹ Congress, informed of the nature and expense of recovery efforts, pondered how limited resources might be allocated for recovery tasks.⁵²

An accompanying message from then-Secretary of the Interior James Watt sounded a slightly different note. In his letter of February 8, 1982, Watt commended the FWS for "stressing recovery of listed species," where he believed "the real payoff under the ESA comes." In Watt's opinion "the success of the Act is really measured by the success of [31 ELR 11306] recovery efforts."⁵³ But what did he mean by recovery? We can only guess, but there are clues.⁵⁴

In 1986, the FWS and the NMFS jointly promulgated regulations defining recovery.⁵⁵ The 1986 regulations provide:

"Recovery" means improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act.⁵⁶

The analysis accompanying promulgation of the final rule states:

The basic goal of the Act is to recover listed species through conservation measures. Bringing a species to the point at which the Act's protective measures are no longer necessary is the same as bringing the species to the point at which delisting is appropriate.⁵⁷

The 1986 regulations defined recovery purely in terms of delisting.

The 1988 reauthorization of the ESA⁵⁸ added new procedural requirements for recovery planning. While the general obligation to "develop and implement" plans remained unchanged, Congress directed the FWS and the NMFS to provide "a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species" and "objective, measurable criteria which, when met, would result in a determination … that the species be removed from the list."⁵⁹ Again, the language emphasized delisting.

As early as 1985, NMFS documents began including the mantra "the goal of the ESA is to provide for the recovery of listed populations to a point at which the protective measures of the ESA are no longer necessary."⁶⁰ By 1989, the FWS would state that "restoring endangered or threatened animals and plants to the point where they are again secure, self-sustaining members of their ecosystems is a primary goal of the [FWS'] endangered species program."⁶¹

The arrival of the Clinton Administration brought no immediate change in the recovery formulation.⁶² That Administration soon contributed its own bit of pro-delisting boiler-plate, indicating that "recovery planning under section 4(f) of the Act is the 'umbrella' that eventually guides all of these activities and promotes a species' conservation and eventual delisting."⁶³

In recent years the emphasis on delisting as the primary goal of recovery has, if anything, increased. The FWS' 1996 Report to Congress on the Recovery Program for Threatened and Endangered Species⁶⁴ trumpets the virtues of delisting:

Recovery is the cornerstone and ultimate purpose of the endangered species program. Recovery is the process by which the decline of an endangered or threatened species is arrested or reversed, and threats to its survival are neutralized, so that its long term survival in nature can be ensured. The goal of the process is to restore listed species to a point where they are secure, self-sustaining components of their ecosystem and, thus, to allow delisting.⁶⁵

All told, in hundreds of published documents, indeed in almost every form of communication available,⁶⁶ the FWS and the NMFS have made it quite clear that delisting of species is the primary goal of recovery efforts. Professor Doremus has called this emphasis on delisting an "unhealthy obsession."⁶⁷

The False Promise of Biological Security

The most commonly cherished notion of recovery and delisting is simple: the appropriate federal agencies assist a species, once on the brink of extinction, to regain sufficient population and distribution so that it requires no protection at all. Although rarely stated, this notion implies that once the magic delisting level has been achieved, species habitat may be destroyed and species members killed without any legal ramifications. For the vast majority of species, this notion is a complete delusion.⁶⁸

In its Living Planet Report 2000,⁶⁹ the World Wildlife Federation (WWF) painstakingly documents the continuing [31 ELR 11307] decline in most of the world's major ecosystems and the continuing pressure human population and consumption are placing on those ecosystems. The report's forest species population index, which measures the average change over 319 forest species populations, shows a decline of 12% from 1970 to 1999.⁷⁰ The report's freshwater species population index fell 50% between 1970 and 1999.⁷¹ The report's marine species population index, covering 217 species of marine mammals, birds, reptiles, and fish, shows a decline of 35%.⁷²

The WWF' analysis emphasizes the enormous losses of biodiversity in southern temperate and tropical regions. However, the biological crisis is not limited to the developing world. In Precious Heritage: The Status of Biodiversity in the United States,⁷³ the Nature Conservancy and the Association for Biodiversity Information compiled the most compete survey to date of species and ecosystem health for the United States. They estimate that one-third of the nation's species are at risk, and that roughly 500 species have already disappeared.

The biological crisis that generated so much attention in the 1970s and led to the passage of the original ESA has not ended. It has simply become old news. My research assistants, reviewing the early legislative history of the ESA, remark about the absence of any serious consideration of the dynamics of recovery and delisting. The reason is fairly obvious. The crisis, as described in books such as Norman Myers' The Sinking Ark: A New Look at the Problem of Disappearing Species⁷⁴ and Paul and Anne Ehrlich's Extinction: The Causes and Consequences of the Disappearance of Species,⁷⁵ did not offer much hope of recovery in the foreseeable future. Despite some progress, the picture has not changed fundamentally.

The notion that recent candidates for delisting such as the Aleutian Canada goose,⁷⁶ which migrates thousands of miles and winters largely on private land in California, and the bald eagle,⁷⁷ which nests in 46 of the lower 48 states and primarily in Florida, Michigan, Minnesota, Oregon, Washington, and Wisconsin, can somehow thrive into the foreseeable future without any legal protection is absurd. So long as these species depend on land and water they share with human activities, regulatory structures will have to regulate those human activities. Otherwise, those species will always be in real peril of extinction.

This does not mean that delisting must be a delusion. Delisting can offer an opportunity to change the nature of the protective regime applied to a specific species from the "one-size-fits-all" protections of the ESA to a more tailored combination of habitat conservation and species preservation. However, it does mean that the relevant analysis, for most species potentially subject to delisting, touches on legal and political as well as biological concerns. The focus should be not on whether the species has recovered to the point at which it can "go it alone" in an inhospitable world, but rather on whether we know enough about the species and its habitat to assess its needs in the foreseeable future and can put together an effective legal and political effort to meet those needs outside the framework of the Act.

The Rhetoric of Delisting

So how, in the face of a continuing extinction crisis, can federal agencies argue to delist species? A review of delisting rules and proposed rules allows us to identify a series of rhetorical devices. These devices help "make the case" for delisting. Again, as I said in the introduction, my purpose here is not to reargue the cases, but rather to introduce the rhetoric.

"The Handoff": Relying on Other Federal Law

One of the most common rhetorical devices employed to justify delisting is reliance on the protections provided by other federal law. Of the nine domestic wildlife species for which the FWS or the NMFS have recently completed or proposed recovery-based delisting, five are birds.⁷⁸ This is no accident, as it is easier to justify delisting birds because they are almost without exception subject to protection under other federal wildlife laws, primarily the Migratory Bird Treaty Act (MBTA). It is extremely persuasive to assert that a species can be delisted because it will be protected under other federal laws. A safety net is in place. The damage we can do is limited. However, the rules and proposed rules that make these arguments rarely provide a detailed analysis of how the protections provided by those other laws may vary from the protections provided by the ESA in terms of the needs of the species being delisted.

In October 1994, the FWS delisted the Arctic peregrine falcon.⁷⁹ The Arctic peregrine is one of three subspecies of peregrine falcons in North America. It generally nests in the tundra of Alaska, Canada, and Greenland. However, species members are migratory. Many spend the winter in Florida and Latin America.⁸⁰ Like many bird species near the top of [31 ELR 11308] the food chain, the Arctic peregrine had been a victim of the liberal use of organochlorine pesticides, particularly dichlorodiphenyltrichloroethane (DDT). Aside from killing birds outright, DDT and its primary metabolite dichlorophenyldichloroethylene (DDE) prevent normal calcium deposition during eggshell formation. This leads to thinner eggshells and dramatically reduced reproduction. Although organochlorine pesticides were generally not used in the tundra areas in which Arctic peregrine falcons breed, the falcons were exposed because they and some of their prey species migrated through or wintered in areas where the pesticides were used.⁸¹ As a result of population declines, the Arctic peregrine was listed as endangered in 1970 under the predecessor to the ESA. The U.S. Environmental Protection Agency (EPA) banned most uses of DDT in 1972.⁸² In 1984, after the regulatory control of most organochlorine pesticides in Canada, the United States, and documented population rebounded, the subspecies was downlisted to threatened.⁸³

Like other species discussed below, Arctic peregrine populations benefitted from the pesticide controls. However, as in the case of other migratory species, they still had to contend with the changes humans had wrought along the many thousands of miles of their migratory routes.⁸⁴ Further, the Arctic peregrine still suffered the effects of organochlorine pesticide use in Latin America. In its final delisting rule, the FWS dismissed these issues, asserting that the growth in Arctic peregrine populations suggested that habitat modification problems could not be too bad, yet.⁸⁵

To support its delisting decision, the FWS relied on the fact that the Arctic peregrine would be protected by other federal wildlife laws. The FWS emphasized particularly and repeatedly the "similarity of appearance" provision of the ESA,⁸⁶ which authorizes the FWS to prohibit takings of an unprotected species because "such species so closely resembles in appearance … a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species" and "the effect of this substantial difficulty is an additional threat to an endangered or threatened species."⁸⁷ The FWS argued, again and again, that "Arctic peregrine falcons will remain protected by the similarity of appearance provision of the Act while in the coterminous 48 States as long as other subspecies occurring in this area remain listed."⁸⁸ However, as the rule honestly pointed out, "this protection will not extend beyond such time that other peregrine falcons occurring in those areas are removed from the list of endangered and threatened wildlife."⁸⁹

Sure enough, in August 1999, the FWS removed the American peregrine falcon from the list of protected species,⁹⁰ thereby depriving the Arctic peregrine falcon of the similarity of appearance protection it had enjoyed for the previous five years and undercutting a prominent justification for the 1994 delisting.⁹¹

In both the Arctic peregrine and American peregrine delisting rules, the FWS relied on the protections still afforded by the MBTA "which governs the taking, killing, possessing, transportation, and importation of migratory birds, their eggs, parts, and nests."⁹² The MBTA is indeed an extraordinary law, protecting a breathtaking array of migratory birds (including the grackles in my backyard)⁹³ from taking by any person (including me).⁹⁴ However, the MBTA is quite different from the ESA in its ability to protect species and species habitat.

First, federal enforcement of the MBTA is highly discretionary, as the FWS can make a decision not to enforce the law against entire classes of people, so long as that policy does not violate other federal laws.⁹⁵ Second, the MBTA contains no citizen suit provision. Accordingly, nonfederal actors can generally only invoke the law when they allege that a federal decision (reviewable under the Administrative Procedure Act) violated it.⁹⁶ These two aspects of the law place most, if not all, the power to enforce the MBTA within the power of federal agencies. Under the ESA, federal agencies have always been the most frequent defendants. Third, some federal circuit courts have held that the MBTA does [31 ELR 11309] not protect species from federal action.⁹⁷ Accordingly, under this logic, federal agencies are immune from the provisions of the law. Most significantly, a number of federal courts have held that the MBTA cannot be used to prevent habitat destruction.⁹⁸ Accordingly, the MBTA often does not reach the most significant range of actions affecting the long-term viability of species.

Despite these significant differences the final rule delisting the Arctic peregrine contains only bland assertions that takings will still be limited under the MBTA and "that the Secretary of the Interior is authorized and directed to determine if, and by what means, the take of migratory birds should be allowed" and, "in adopting regulations, the Secretary is to consider such factors as distribution and abundance to ensure that take is compatible with the protection of the species."⁹⁹ The final rule delisting the American peregrine contains a slightly longer, but equally superficial passage, dealing with the MBTA's prohibition against taking.¹⁰⁰

On July 6, 1999 (July 4 fell on a Sunday that year), the FWS published a proposed rule to delist the bald eagle.¹⁰¹ By way of commemorating Independence Day, the proposed rule identified the species as the national symbol, described its majestic appearance, and documented its conjugal fidelity.¹⁰² Eagle population declines had begun in the 19th century as a result of hunting and habitat destruction.¹⁰³ After World War II, the bald eagle fell prey to organochlorine pesticides, and populations dropped dramatically in the lower 48 states. After control of the pesticides, eagle populations began to rebound. By the time of the proposed delisting, bald eagles were nesting in 46 of the lower 48 states.¹⁰⁴ Population had increased tenfold since 1963.¹⁰⁵ The proposed rule drew no general conclusions about the need to protect bald eagle habitat, asserting that population growth suggested it had not been a limiting factor¹⁰⁶ and admitting that habitat preservation was "a concern" in areas such as the Chesapeake Bay that are near expanding human population centers.¹⁰⁷

In support of the delisting proposal, the FWS asserted that the bald eagle, once delisted, would be "fully protected" under other federal laws, specifically, the MBTA, the Bald and Golden Eagle Protection Act, and the Lacey Act. The Bald and Golden Eagle Protection Act, like the MBTA, does not protect species habitat,¹⁰⁸ and does not provide a citizen suit provision.¹⁰⁹ The Lacey Act,¹¹⁰ which makes it a federal crime to take wildlife in violation of state law, has the same drawbacks. The assertion that the delisted eagle would be "fully protected"¹¹¹ was very much a matter of debate.

There is no question that the protections provided by other federal laws are relevant considerations in determining whether to delist a species. Indeed, their consideration is required by the ESA.¹¹² However, their rhetorical value can easily be greater than their practical value. In the case of the Arctic peregrine, the FWS relied on the protections provided by the similarity of appearance provision of the ESA, protections subsequently removed when the American peregrine falcon was delisted. With both subspecies of peregrine falcons and in the case of the bald eagle, the FWS presented the MBTA and the Bald and Golden Eagle Protection Act as important substitutes of the protections lost by delisting, but failed to analyze the differences between what protections remained and what had been lost.

A Shift of Focus: From Dividing the Indivisible to Delisting the Nonexistent

Species generally exist across a range of habitat. They are often subject to different threats and different levels of threat in different locations. One rhetorical device employed in a number of rules involves shifting the focus of the delisting process away from the areas of greatest concern and toward the areas of less concern.

In February 1985, the FWS issued a final rule delisting the brown pelican.¹¹³ Or at least, that's the way most of us think about it. The brown pelican was one of the first recovery "success stories." According to the FWS, pelican populations had sunk dramatically as a result of effects from organochlorine pesticides,¹¹⁴ particularly DDT and endrin. The pelican was listed as endangered throughout its range in 1970.¹¹⁵ Pesticides caused both direct mortality and impaired reproduction and egg shell thinning. EPA's 1972 ban on DDT and strict regulation of endrin had removed some of the threat.¹¹⁶ Now, in the mid-1980s, the regulation was "paying off" in the pelican delisting.

[31 ELR 11310]

The summary of data on brown pelican nests counted from 1968 through 1984, included in the final rule,¹¹⁷ tells a more complicated tale. Florida nests had remained relatively numerous and stable during the entire period, with 6,936 nests in 1968 and 6,980 nests in 1983. South Carolina nests had also been numerous, but had almost quintupled in number from 1969 to 1984. Indeed, the FWS stated that "population data gathered since listing have questioned the likelihood that the pelican population in Florida was ever endangered, as defined by the Act and that the designation was also questionable for the pelican in South Carolina."¹¹⁸ The only clear recovery success story was in North Carolina, at the far northern edge of the pelican's range, where the number of nests had increased from none as late as 1975 to more than 1,000 by 1983. As the FWS admitted:

The explosive increase of brown pelicans in North Carolina may be related, in part, to the expansion of the South Carolina colonies, but cannot otherwise be explained fully. North Carolina is at the northern periphery of the brown pelican's breeding range and, as such, the colonies may be expected to fluctuate more dramatically than they would in more centrally-located breeding areas.¹¹⁹

In 1985, the state of the pelican was quite different in Louisiana and Texas. Historical counts for the two states had estimated the pelican population at somewhere between 10,000 and 15,000 nesting pairs.¹²⁰ While numbers had increased since the population crash of the 1950s and 1960s, by 1985 the total number of counted nests in Louisiana was 709, with a precarious 115 in Texas.

The FWS had issued a recovery plan for the brown pelican in August 1980. The recovery team focused their efforts on the Louisiana and Texas populations of the brown pelican, calling for "re-establishment of Louisiana and Texas populations on all historically used nesting sites."¹²¹ The recovery plan described the range of the eastern brown pelican as including coastal areas in Florida, Louisiana, North Carolina, South Carolina, and Texas.¹²² According to the plan, the brown pelican was not known to nest in Alabama or Georgia or north of North Carolina.¹²³ While recognizing the importance of pesticides in depressing pelican populations, the plan also recognized the importance of habitat loss and modification.¹²⁴

The plan confessed ignorance about the reasons for the decline of the brown pelican in Louisiana. It stated that the Louisiana population was once very large,¹²⁵ that declines in its numbers were documented as early as 1931,¹²⁶ and that there was "no evidence to support the belief that DDT was responsible for the demise of the Brown Pelican in Louisiana."¹²⁷ The plan urged that "wide distribution of the species, rather than its absolute numbers" as a measure of its strength against extinction.¹²⁸ It offered no basis for predicting "when or under what circumstances the Eastern Brown Pelican can be removed from the Endangered Species List."¹²⁹ Further, the recovery plan stated: "We believe that to remove the Brown Pelican from the endangered or threatened species list because its perceived recovery in any part of its range may place such populations again in jeopardy …."¹³⁰

Five years later, the final rule delisting the eastern brown pelican did exactly what the recovery plan cautioned against: dividing the population. The rule delisted only those brown pelicans found in Alabama, Florida, Georgia, North Carolina, and points northward along the Atlantic Coast. While the 1985 rule delisted a significant number of birds, particularly in Florida, it is undeniable that it delisted birds in areas in which they were not likely to be found, namely in Georgia and north of North Carolina. More important for our purposes, the rule shifted the focus of concern away from the still endangered and biologically significant Louisiana and Texas populations to the more secure but less significant Atlantic Coast populations.

In 2001, the brown pelican remains listed as endangered in Louisiana and Texas. The FWS has expressed a desire to delist the Louisiana, Mississippi, and Texas populations.¹³¹ However, it has not published a proposed rule.

On March 20, 2001, the FWS published a final rule to delist the Aleutian Canada goose.¹³² The goose was listed as an endangered species in 1967¹³³ and downlisted to threatened status in 1990.¹³⁴ The FWS based its decision to delist on (1) the removal of introduced Arctic foxes from some of the goose's nesting islands in Alaska, (2) the establishment of new breeding colonies in Alaska, (3) protection of geese from hunting, and (4) protection of goose wintering habitat.¹³⁵

The Aleutian Canada goose is a migratory bird. Once these geese migrated through both America and Asia, wintering in both Japan and the western United States.¹³⁶ The remaining population summers and breeds in the Aleutian islands and winters on private land in the swiftly developing Sacramento and San Joaquin valleys of California. Every spring and fall, they make the long journey between the two. By mid-December almost all the Aleutian Canada geese are near Modesto, California, and winter on two privately owned ranches near the San Joaquin River National Wildlife Refuge.¹³⁷

The 1999 proposed delisting rule emphasized increased habitat security in Alaska and placed little attention upon [31 ELR 11311] threats to habitat in California.¹³⁸ The geese require habitat in both locations. The FWS admits that development poses a threat to wintering and migratory habitat. The 1991 Aleutian Canada Goose Recovery Plan identified three recovery objectives, including "a total of 25,000-35,000 acres of specific land parcels identified by the recovery team as feeding and roosting habitat needed for migration and wintering are secured and being managed for Aleutian Canada geese."¹³⁹ At the time of the proposed delisting in 1999, "more that 8,000 acres [one-third of what the 1991 recovery plan required] of currently-used winter and migratory habitat are secure … and we have an acquisition program for both fee title and perpetual conservation easements in the Sacramento and San Joaquin Valleys."¹⁴⁰ Despite the acquisition program, at the time of the final delisting in 2001, the amount of "secure" habitat had dropped to 7,500 acres.¹⁴¹

On July 13, 2000, the FWS published a proposed rule to "reclassify and remove the gray wolf from the list of endangered and threatened wildlife in portions of the coterminous United States."¹⁴² The proposed rule asserts "increases in gray wolf numbers, expansion of the species' occupied range, and progress toward achieving the reclassification and delisting criteria of several approved gray wolf recovery plans show that the species' current classification is no longer appropriate throughout most of its range."¹⁴³ The proposal employs the shift of focus device in a new way.

At the time of the proposed rule, known populations of gray wolves existed in three western Great Lakes states (Michigan, Minnesota, and Wisconsin)¹⁴⁴ and Montana.¹⁴⁵ In addition, the FWS has reintroduced "experimental non-essential" populations into Arizona, central Idaho, and Yellowstone National Park.¹⁴⁶ However, the 2000 proposed delisting rule does not concern itself primarily with where wolves are, but rather with where wolves might someday be. The status of the three experimental populations would remain unchanged.¹⁴⁷ The status of the Minnesota wolves would remain threatened. The only immediate effects would be the downlisting of Montana wolves from endangered to threatened¹⁴⁸ and the downlisting of Michigan and Wisconsin wolves from endangered to threatened.¹⁴⁹

So how is it that the FWS can call this a delisting rule?¹⁵⁰ It can because the proposed rule delists and downlists wolves in many places in which wolves do not exist.

The proposed rule divides the continental United States into great swaths of territory. Each territory harbors a proposed distinct population of wolves.¹⁵¹ However, each territory is much larger than the area currently occupied by wolves or the area likely to be occupied by wolves in the foreseeable future. The "Western Great Lakes Gray Wolf Distinct Population Segment" territory includes all of the states of Michigan, Minnesota, North Dakota, South Dakota, and Wisconsin.¹⁵² The "Southwestern (Mexican) Gray Wolf Distinct Population Segment" territory consists of all of Arizona and New Mexico south of Intestate Highway 40 and the Colorado River and almost all of West Texas.¹⁵³ The vast "Western Gray Wolf Distinct Population Segment" territory comprises all of the states of Colorado, Idaho, Montana, Oregon, Utah, Washington, and Wyoming, and those parts of Arizona and New Mexico not included in the southwestern area.¹⁵⁴ The "Northeastern Gray Wolf Distinct Population Segment" includes the states of "New York, Vermont, New Hampshire, and Maine,"¹⁵⁵ where the existence of wolves is speculative.¹⁵⁶ The structure of the rule effectively delists hypothetical wolves outside these four territories. Indeed, these are the only wolves delisted.

Should the rule become final in its current form, threatened wolves would include all the wolves in North and South Dakota, all the wolves in Arizona and New Mexico north of Interstate 40, and all wolves in Colorado, Maine, New Hampshire, New York, Oregon, Utah, Vermont, and Washington. The fact that no wolves appear to exist in these places is beside the point. What wolves would be delisted? The wolves in California, Florida, Nebraska, Nevada, and New Jersey. In other words, no wolves at all.

The proposed rule shifts attention away from the plight of existing populations in need of protection and toward hypothetical national populations that the FWS asserts have recovered or are recovering. A glance at the map included with the proposed rule¹⁵⁷ would appear to confirm the worst fears of Montana and Wyoming ranchers. The FWS has built a regulatory structure to accommodate wolves howling in the suburbs of Dallas and Seattle, a delisting rule that protects wolves prowling in the environs of Denver, Phoenix, and Portland. Wolves are wonderfully intelligent and versatile creatures; the last 10 years have seen an enormous increase in their numbers in the lower 48 states. However, these increases do not remove the difficulties wolves will have surviving in an ever-more crowded country. The FWS' proposal downlists and delists nonexistent wolves and declares victory.

[31 ELR 11312]

Each of the three promulgated or proposed rules discussed above demonstrates a variation of the "shift of focus" rhetoric. By delisting relatively stable populations of brown pelicans outside Louisiana and Texas, the FWS could transform the long battle to preserve the brown pelican and the Gulf Coast habitat on which it depends into a straightfoward campaign against pesticides and a clearcut victory. By emphasizing improvement in breeding habitat for the Aleutian Canada goose, the FWS could deemphasize threats to equally essential and largely unprotected winter range. By delisting nonexistent wolves, the FWS could deemphasize threats to existing populations of wolves in the lower 48 states. In each, the structure of the delisting effort allows the agency to build a rhetorical structure that circumvents some of the hard questions about preserving wild species in a world increasingly crowded by humans and their things.

Forgotten Threats: How Perceptions of Danger Diminish Over Time

Time can also play a role in making a plausible case for delisting a species. In June 1994, the NMFS published a final rule removing the eastern North Pacific (California) stock of gray whales from the list of protected species.¹⁵⁸ The primary impetus for the decision¹⁵⁹ was a dramatic rebound in whale populations. According to the agency's 1991 proposed rule, "it is likely that gray whale population is within its optimum sustainable population size." The agency considered the effect of whale watching boats and determined that a combination of regulations under the Marine Mammal Protection Act¹⁶⁰ and closures of calving grounds in Mexico would be sufficient to protect the species.

The proposed rule then discussed a more troublesome threat, potential oil and gas exploration and development along the whales' migratory routes and in their summer feeding grounds off Alaska.¹⁶¹ Indeed, any middle-aged environmental lawyer with a good memory should recall that the effect of oil and gas exploration in both Alaska and California had been the subject of inquiry in a number of cases entertained by the federal courts in the 1980s.¹⁶² The upshots of those classics of environmental litigation were that (1) the gray whales' migration route was straddled by potential oil and gas development areas along the California coast, (2) the summer feeding grounds off Alaska might be affected by more oil and gas development, and (3) that the ESA played a significant role in protecting the whales from potential development. But in 1994 and 1995, NMFS felt that the issues discussed in those cases were not sufficient to prevent delisting. What had happened? The potential effects of oil and gas development and the attendant oil spills had not been overstated. With considerable honesty, in both its proposed rule and its subsequent "Notice of Determination,"¹⁶³ the NMFS documented the damage oil and gas production might do to gray whales. Still "annually, the gray whale population migrates by or through at least eight oil lease areas within U.S. waters."¹⁶⁴

What appears to have changed is the perception of the likelihood of oil and gas development on the Outer Continental Shelf. What had seemed to be an issue of great urgency during and after the energy crisis of the late 1970s, appeared far less momentous in the energy glut of the early 1990s. As the NMFS put it:

The recovery of the gray whale population has occurred concurrent with extensive [Outer Continental Shelf] geophysical exploration off the California coast and other activities throughout its range, and these levels of activity are unlikely to increase significantly in the near future. [The] NMFS, therefore, concludes that current and anticipated levels of human activities do not pose a danger of extinction to this species now or in the foreseeable future. [The] NMFS does not rule out the possibility that parts or all of this stock and certain components of its habitat have been and/or are being stressed or that the effects will not be manifested over time as changes in productivity, mortality[,] or distribution.¹⁶⁵

Time had diminished the sense of the threat created by oil and gas exploration and production. Now, at the beginning of the 21st century, energy has reemerged as a national issue [31 ELR 11313] and oil companies are once again pondering oil and gas development off the West Coast.¹⁶⁶

The Kindness of Strangers: Relying on State and Local Law

In May 1999, the FWS published a proposed rule to delist the Columbian white-tailed deer, Douglas County (Oregon) population.¹⁶⁷ The Columbian white-tailed deer is the western most subspecies of the white-tailed deer clan. Once found throughout the bottomlands and prairie woodlands of the lower Columbia, Umpqua, and Willamette River basins in Oregon and southern Washington, a combination of habitat destruction and hunting extirpated the deer in most of its range by 1900. Remaining populations exist in the lower Columbia River area of Clatsop and Columbia counties, Oregon, in Cowlitz and Wahkiakum counties in Washington, and in Douglas County, Oregon. These two remnant populations are geographically separated by about 200 miles of unsuitable habitat.¹⁶⁸ The deer was first listed as endangered in 1967 under the predecessor to the ESA.¹⁶⁹ Conversion of habitat to residential use and intensive agriculture was a "key factor" leading to the listing of the subspecies.¹⁷⁰

In 1999, the FWS proposed delisting the Douglas County population, both because of a dramatic increase in deer population and in light of a determination that sufficient deer habitat was "secure." The Columbian white-tailed deer recovery plan had been approved in 1976 and revised in 1983.¹⁷¹ The plan identified criteria for the eventual downlisting and delisting of the Douglas County population.¹⁷² For delisting, the plan required 500 deer distributed on at least 5,500 acres of suitable, secure habitat.¹⁷³ At the time of publication of the proposed rule, 5,500 deer inhabited 308 square miles. Of that land, roughly 6,800 acres of "secure habitat" was owned by the federal Bureau of Land Management (BLM). Douglas county owned another 1,550 acres of "secure habitat," the majority of which was the Kanipe Ranch property deeded to the county "with the stipulation that it be managed as a wildlife area." "For the purpose of delisting, habitat is considered secure if it is protected by legally binding measures or law from adverse human activities for the foreseeable future."¹⁷⁴ However, "most habitat for the Douglas County population is on private lands"¹⁷⁵ and much of this habitat is protected by "land use plans and zoning ordinances" adopted by Douglas County.¹⁷⁶ While the proposed rule does not treat the habitat protected by zoning ordinance as "secure"¹⁷⁷ it is of great rhetorical and, perhaps, biological significance. References appear again and again in different parts of the proposed rule.¹⁷⁸

The Columbian white-tailed deer delisting raises the question of what habitat can be counted "secure" or counted at all for purposes of satisfying the requirements of a recovery plan and supporting the delisting that recovery plan contemplated. While it seems likely that the "North Bank Habitat Management Area" purchased by the BLM specifically as habitat for the deer is "secure," at least for the time being, the Kanipe Ranch owned by Douglas County subject to a stipulation that it be managed as a wildlife area presents questions. Those questions pale when compared to the "habitat on private lands within the core range of this population that contains key foraging, hiding, fawning, and travel corridors" protected by Douglas County "land use plans and zoning ordinances."

Obviously, an agency arguing for delisting has a rhetorical interest in making the case that the largest possible quantity of habitat has already been protected. Not surprisingly, much of that habitat may not be in federal control. How much of the nonfederal habitat can be counted toward delisting? The ESA, unlike almost every other federal law protecting wildlife habitat, applies to lands held by the federal government, state and local governments, and private parties. Accordingly, a patchwork of habitat areas owned by federal, local, and private interests will hold together under the Act, but what happens when delisting the species eliminates the effect of the Act?

Absent binding agreements to the contrary, state and local authorities that control secure habitat always have the right to change their minds and appropriate that land for some other use. Zoning ordinances such as those at issue in the proposed Columbian white-tailed deer delisting are particularly likely to evaporate in the absence of the ESA. They are subject to repeal and revision by the localities that enact them. Yet, despite this obvious insecurity, tallying up habitat controlled and protected by nonfederal actors provides a powerful rhetorical tool by increasing the amount of habitat "available" to a species at the time of delisting.

The proposed rule to delist the Douglas County population makes no reference to binding agreements between the FWS and local authorities requiring perpetual maintenance of the habitat preservation aspects of the Douglas County land use plan. The Center for Biological Diversity and Umqua Watersheds, Inc. have filed comments with the FWS opposing the delisting of the Douglas County population on the ground that the apparently secure habitat — both federally and nonfederally owned — is anything but.¹⁷⁹

[31 ELR 11314]

The Numbers Game

The guidance available concerning delisting strongly suggests that the primary focus for making a delisting determination should be the threats to which the species is subject. Recent case law reviewing the adequacy of recovery plans confirms this. In 2001, in Defenders of Wildlife v. Babbitt,¹⁸⁰ environmental groups challenged the 1998 final revised recovery plan for the Sonoran Pronghorn. A federal district court ruled that the FWS had failed to satisfy the statutory requirement for designating objective measurable criteria, because the designated criteria failed to deal with the identified threats to species survival. In 1995, in Fund for Animals v. Babbitt,¹⁸¹ the court ruled in favor of the plaintiffs on their claim that the grizzly bear plan failed to include "objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list." The court observed that the recovery criteria set forth in the plan ought to be more than merely quantitative goals, and should address the threats that had given rise to listing in the first place, the absence of which would constitute recovery.¹⁸² While more protected creatures are better than fewer protected creatures,¹⁸³ recovery plans also regularly caution against the use of population numbers as a substitute for analysis of threats to species.¹⁸⁴

Despite all this, it appears that healthy population numbers often form the basis for delisting decisions and that, in the estimation of the agencies, good population numbers compensate for considerable inadequacy in addressing threats to the species. In the FWS' final rule to delist the brown pelican, the agency placed considerable emphasis upon the population rebound in North Carolina and South Carolina. The agency appears to consider increasing populations to be conclusive evidence of diminishing threats, even in the absence of explanations for earlier population declines,¹⁸⁵ proclaiming that "neither the threat of future 'unknown' pesticides nor the threat from existing short-lived, non-organochlorine pesticides constitute sufficient reason for continued listed status of an animal with as large and stable a population as the brown pelican."¹⁸⁶ Similarly, in the NMFS' rule to delist the eastern North Pacific population of the gray whale, the optimum sustainable population size played a significant role in counterbalancing the agency's inadequate response to threats from oil and gas development.¹⁸⁷ In the FWS' proposed rule to delist the Arctic peregrine falcon, the agency relied on population growth to discount a recovery plan requirement that eggshells average less than 10% thinner than shells before the effects of organochlorine pesticides.¹⁸⁸ In its final rule to delist the American peregrine falcon, the FWS again discounted a recovery goal in the Alaska recovery plan that eggshells average less than 10% thinner than pre-DDT eggshells, likewise on the ground that population numbers are improving.¹⁸⁹ The proposed rule to delist the Aleutian Canada goose relies on overall high population numbers (the "overall population of Aleutian Canada geese is approximately 32,000 birds, which is over four-fold greater than the population objective for delisting")¹⁹⁰ to overcome both concerns about inadequate [31 ELR 11315] protected winter and migratory range¹⁹¹ and the failure to achieve a large population in one of the three recovery areas identified in the recovery plan, the Semidi Islands.¹⁹² The proposed rule to delist the gray wolf also relies on the wolf population numbers for the Michigan-Minnesota-Wisconsin population and the Rocky Mountain population.¹⁹³ The proposed rule to delist the Douglas County population of the Columbian white-tailed deer emphasizes the dramatic overall increase in deer populations.¹⁹⁴ And in the FWS' final rule to delist the Aleutian Canada geese, the agency used high population numbers to discount documented threats to migratory habitat:

[An] increasingly serious problem is developing on private pastures in the Langlois area of southern coastal Oregon where 10,000-20,000 geese concentrate for a week or longer in the spring after leaving the Smith River bottoms…. . Most suitable goose habitat in the area … occurs on adjacent private lands …. The easing of restrictions on hazing that will come with the delisting of this subspecies will allow those landowners that do not welcome these geese to keep them off their land. Again, we view this as a problem that is only manifesting itself due to the large population size of this goose. Therefore, the fact that the problem even exists attests to the fact that this species is no longer in danger of extinction now or in the foreseeable future.¹⁹⁵

Agencies understand that population numbers have enormous persuasive value in convincing a skeptical audience that species have once again returned to health. The reality is often more complicated. Population numbers often fluctuate over time. Further, for the present, the amount of time between listing and delisting of species is extremely short in biological terms, never more than 35 years.¹⁹⁶ We have only had endangered species protection laws since the mid-1960s.¹⁹⁷ Often no serious surveys of population numbers were conducted before species were listed. Accordingly, although population numbers can have enormous rhetorical value, they may provide a limited gauge of the true well-being of a species.

Lessons From the Rhetoric of Delisting

So what can you take away from this excursion through the rhetoric of delisting? I have endeavored to avoid passing judgment on specific delisting rules. Nor have I developed a comprehensive mechanism for evaluating delisting rules. Still, some obvious lessons stand out.

What little law exists to limit the delisting process suggests that the decision should be based on an assessment of the threats facing the species rather than species population trends. Population trends can be evidence of the significance of identified threats. However, population should not be the only gauge. Even quantitative analysis of "secure" habitat should not be conclusive. Information about the suitability of available habitat is often inadequate. Further, habitat quality can change over time.

Despite this fairly well-established principle, species population numbers and "secure" habitat numbers have enormous rhetorical power. Indeed, delisting rules and proposed rules use healthy numbers to dismiss inadequate or troubling information about threats to the species to be delisted. The persuasive power of quantitative information has shaped and will continue to shape debates about specific species.

The ESA also requires the agencies that administer it to consider the adequacy (or inadequacy) of other regulatory mechanisms in making listing and delisting decisions. Final and proposed delisting rules are full of references to other laws that will protect the species after delisting. However, these rules rarely give any sort of analysis of what the change in protective regime will actually mean to the prospects of the species.

The persuasive power of reference to other law is second only to the power of numbers. Reference to other laws can even act as a partial substitute for habitat numbers, as in the case of the Columbian white-tailed deer. However, reference to other laws is more persuasive when it avoids analysis of the detailed provisions of those laws and how they might apply to the species in question. If honesty rather than persuasion is the goal, it should not be enough to merely assert that the species will still be protected under the MBTA in the absence of discussion of what, in the agency's opinion, the legislation will and will not protect. Once the potential differences between a pre-delisting and post-delisting protective regime are identified they can be compared with the remaining threats to the species.

Like all rulemaking decision processes, delisting tends to focus on the present basis for making a decision, rather than upon the long-term consequences. It is easier and more persuasive to marshal the newest available evidence than to speculate about future developments. The available information [31 ELR 11316] is relatively hard-edged and verifiable, while speculation is unsatisfying and often unpersuasive. Yet, focusing on current information can allow the analysis to avoid the significance of large-scale long-term trends that may have a dramatic impact on the fate of a species.

The unstated underlying assumption that supports the current information approach is that the species can always be "relisted" if circumstances change. However, "relisting" — although never tried — may be an ineffective approach to species protection. In some cases, relisting would require activating the entire cumbersome and famously time-consuming listing machinery. While § 4(g) of the ESA directs the FWS and the NMFS to use their emergency listing power in cases involving the welfare of delisted species based on the results of monitoring, and language in current delisting rules suggests that the agencies are aware of the obligation,¹⁹⁸ the process remains untried. Further, it is unclear how the obligation to relist would function in a world prone to tight budgets and legislative listing moratoria.¹⁹⁹

Often the art of rhetoric involves telling people what they want to hear. It is hard to overestimate the desire to declare victories, even small ones, in the face of the decades-old story of human consumption of resources and the relentless disassembly of biological systems on local, regional, and global scales. Delisting is compelling, not only because it promises to save government and industry money and headaches, but because it promises to fulfill wishes. Alas, just because we want things to be so, does not mean they are. Our ability to realistically assess the prospects for species delisting will be a test of our desire to confuse what we want to be true with what is true.

1. Nature, Machinery Help Cranes, Associated Press, July 2, 2001 (efforts to establish new whooping crane population as part of species recovery effort); Growth Eludes Stabilized Population of California Sea Otters, PORTLAND OREGONIAN, June 20, 2001, at C9 (discussing sea otter recovery prospects); A Baby Boom Among Near-Extinct Whales in the North Atlantic Holds Out Hope for the Species. But Its Problems Date Back Centuries, GLOBE AND MAIL (TORONTO), June 2, 2001, at F2 (discussing northern Right Whale recovery); Hatchings in Captivity Improve the Chances for Clapper Rail, SAN DIEGO UNION-TRIB., May 31, 2001, at B1 (discussing recovery of endangered clapper rail); California Pair of Endangered Falcons Make Nest Atop Oracle Headquarters, SAN JOSE MERCURY NEWS, May 31, 2001; Young Condors Set Free Preservation: Release of Fledglings Carries Biologists' Hopes for Boosting Population Into the Ventura County Back Country, L.A. TIMES, May 23, 2001, at B1 (discussing California condor recovery).

2. Condor Hatched in Wild Is Killed, L.A. TIMES, June 28, 2001, at A3; The First California Condor to Be Born in the Wild in 17 Years Hatched Friday, Days After Biologists Rushed the Egg Laid in Captivity to the Los Padres National Forest From the Los Angeles Zoo, Associated Press, June 22, 2001; Two Intact Condor Eggs Found in Back Country Nature: Discovery Is a Milestone in the Recovery Program for the Endangered Birds, L.A. TIMES, May 19, 2001, at B1; California Condor Egg Found in Wild, SAN DIEGO UNION-TRIB., Mar. 29, 2001, at A3.

3. Rockies Ranchers Adapt to Reality of Wolves, DENV. POST, July 8, 2001, at A1; Gray Wolf Population in U.P. Is Rebounding Near Extinction, Animal Recovers, Spurs Effort to Alter Endangered Status, DET. NEWS, June 28, 2001, at 8; California and the West Taking a Gander at Geese's Comeback Development: What's Good for the Aleutian Canada Goose May Be Good for Ecotourism in Crescent City, L.A. TIMES, Apr. 10, 2001, at A3; Norton Lifts Endangered Status for Aleutian Canada Goose, L.A. TIMES, Mar. 21, 2001, at A10.

4. U.S. FWS, REPORT TO CONGRESS ON THE RECOVERY PROGRAM FOR THREATENED AND ENDANGERED SPECIES 2 (1998), available at http://endangered.fws.gov/recovery/report_to_congress.html (last visited July 31, 2000) [hereinafter 1998 REPORT TO CONGRESS].

5. See Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1 (1996).

6. See Holly Doremus, Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation, 30 ELR 10434 (June 2000).

7. Bear Necessities/The Grizzlies of Yellowstone Have Made a Comeback, but Now There Is Debate About What They Need to Continue, NEWSDAY, May 31, 2001, available at http://www.newsday.com (last visited Sept. 18, 2001) ("Conservation groups are concerned about calls to take the bears off the federal list of "threatened" species … and turn over more responsibility for their management to state authorities.").

8. Oxford English Dictionary online, at http://dictionary.oed.com (last visited July 31, 2001).

9. Doremus, supra note 6, at 10445.

10. See Bradley C. Karkkainen, Biodiversity and Land, 83 CORNELL L. REV. 1 (1997).

11. Pub. L. No. 93-205, 81 Stat. 884 (Dec. 28, 1973) (current version at 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18).

12. 16 U.S.C. § 1531(b), ELR STAT. ESA § 2(b).

13. Id. § 1532(3), ELR STAT. ESA § 3(3).

14. Id. § 1533, ELR STAT. ESA § 4.

15. Id. § 1532(6), ELR STAT. ESA § 3(6).

16. Id. § 1532(20), ELR STAT. ESA § 3(20).

17. See Amy Whritenour Adno, Waiting to Be Protected Under the Endangered Species Act: The Political Economy of Regulatory Delay, 42 J.L. & ECON. 29 (1999); Timothy Bechtold, Listing the Bull Trout Under the Endangered Species Act: The Passive-Aggressive Strategy of the United States Fish and Wildlife Service to Prevent Protecting Warranted Species, 20 PUB. LAND & RESOURCES L. REV. 99, 100 (1999) ("The process of listing the bull trout under the ESA demonstrates, however, that the agency employs a myriad of delay tactics in attempting to avoid listing species under the ESA.").

18. Adno, supra note 17, at 31.

19. 16 U.S.C. § 1533(b)(3)(A), ELR STAT. ESA § 4(b)(3)(A). Within 90 days of receiving a petition, the FWS/NMFS must "make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. If the petition does not contain substantial information, the FWS/NMFS notifies the petitioner that additional data is needed. If the petition is adequate, the FWS/NMFS promptly reviews the status of the species concerned and solicits public comment. Id.

20. Id. § 1533(b)(2)(B), ELR STAT. ESA § 4(b)(2)(B). The decision whether to list a species as endangered or threatened "must be based solely on an evaluation of the biological risks faced by the species, to the exclusion of all other factors." Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 480, 19 ELR 20277, 20277 (W.D. Wash. 1988).

21. In addition to these five criteria, efforts made by state governments to protect species should be considered. Congress forbids consideration of the economic effect of listing as part of the listing decision. 50 C.F.R. § 424.11(b).

22. 16 U.S.C. § 1536(a)(2), ELR STAT. ESA § 7(a)(2).

23. Id. § 1538(a)(1), ELR STAT. ESA § 9(a)(1).

24. Id. § 1532(19), ELR STAT. ESA § 3(19).

25. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 25 ELR 21194 (1995).

26. 50 C.F.R. § 17.31 (protecting threatened fish and wildlife).

27. See Palila v. Hawaii Dep't of Land & Natural Resources, 649 F. Supp. 1070, 17 ELR 20514 (D. Haw. 1986), aff'd, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988) (applying § 9 to require removal of mouflon sheep from the habitat of endangered Palila); Defenders of Wildlife v. Administrator, 688 F. Supp. 1334, 18 ELR 20960 (D. Minn. 1988), aff'd in part, rev'd in part, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989) (holding EPA registration of poison that incidentally killed members of endangered species a taking under § 9); Sierra Club v. Lyng, 694 F. Supp. 1260, 19 ELR 20450 (E.D. Tex. 1988), aff'd in part, rev'd in part sub nom. Sierra Club v. Yeutter, 926 F.2d 429, 21 ELR 20755 (5th Cir. 1991) (finding U.S. Forest Service timber cutting in red-cockaded woodpecker habitat to be a taking under § 9).

28. 16 U.S.C. § 1533(f), ELR STAT. ESA § 4(f).

29. The ESA divides the responsibility for the designation and protection of endangered and threatened species between the Secretary of the Interior and the Secretary of Commerce. Id. §§ 1532(15), 1533(a)(2), ELR STAT. §§ 3(15), 4(a)(2). The Secretary of the Interior has delegated authority under the Act to the FWS. The Secretary of Commerce has delegated his authority to the NMFS, which is part of the National Oceanic and Atmospheric Administration (NOAA). Agency regulations specifically enumerate which species each agency must protect. See 50 C.F.R. §§ 222.23(a), 227.4. In general terms, the FWS is responsible for all terrestrial and freshwater aquatic species, while the NMFS is responsible for oceanic and anadromous species.

30. 16 U.S.C. § 1533(f)(1), ELR STAT. ESA § 4(f)(1).

31. Id. § 1533(f)(1)(B)(i), ELR STAT. ESA § 4(f)(1)(B)(i).

32. Id. § 1533(f)(1)(B)(ii), ELR STAT. ESA § 4(f)(1)(B)(ii).

33. Id. § 1533(f)(1)(B)(iii), ELR STAT. ESA § 4(f)(1)(B)(iii).

34. S. REP. No. 93-307 (1973), reprinted in 1973 U.S.C.C.A.N. 2989.

35. Although most of the Department's actions under the Act have involved the listing of species, the Act also authorizes the Secretary to delist or reclassify species in much the same manner as the initial listing…. The ultimate goal of the [ESA] is to focus sufficient attention on listed species so that, in time, they can be returned to a healthy state and removed from the list.

H.R. REP. No. 95-1625 (1978), reprinted in 1978 U.S.C.C.A.N. 9453.

36. H.R. REP. No. 97-567 (1982), reprinted in 1982 U.S.C.C.A.N. 2807.

37. 50 C.F.R. § 424.11(b).

38. Id.

39. Id.

40. Listing Endangered and Threatened Species and Designating Critical Habitat; Amended Procedures to Comply With the 1982 Amendments to the Endangered Species Act, 49 Fed. Reg. 38900 (Oct. 1, 1984).

41. 16 U.S.C. § 1533(g)(1), ELR STAT. ESA § 4(g)(1).

42. Id. § 1533(g)(2), ELR STAT. ESA § 4(g)(2).

43. CENTER FOR BIOLOGICAL DIVERSITY, FEDS FAIL TO MONITOR PEREGRINE FALCON POPULATION YET PERMIT TAKING OF 5% OF ALL WESTERN NESTLINGS, available at http://www.sw-center.org (last visited July 11, 2001).

44. Availability of Proposed Monitoring Plan for American Peregrine Falcons in the United States for Review and Comment, 66 Fed. Reg. 39523 (July 31, 2001).

45. See http://endangered.fws.gov/recovery/docs/peregrine_monitoring. Pdf (last visited July 31, 2001).

46. Reed Noss, Some Principles of Conservation Biology as They Apply to Environmental Law, 69 CHI.-KENT L. REV. 893, 900 (1994); see Daniel B. Botkin, DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY 16-19 (1990).

47. The original recovery planning provision stated:

The Secretary shall develop and implement plans (hereinafter in this subsection referred to as "recovery plans") for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. The Secretary, in developing and implementing recovery plans, may procure the services of appropriate public and private agencies and institutions and other qualified persons.

92 Stat. 3766 (1978).

48. Telephone Interview with Milton Kaufman of Monitor International (who championed the cause of recovery planning during the 1978 amendments process) (June 8, 1995).

49. H.R. REP. No. 95-1804, at 28 (1978) ("Although recovery plans are implicit in the [ESA], the act does not specifically mandate recovery plans. As a result, recovery plans have been given a low priority within the ESA budget."); H.R. REP. No. 95-1625, at 19 (1978).

50. The bill adds a new subsection (g) to section 4 which would require the Secretary to develop and implement recovery plans for listed species. Such plans would be designed to ensure the conservation or survival of each listed species. Recovery teams may be appointed by the Secretary, where appropriate, to aid in developing or implementing recovery plans for a particular species. Such plans shall be as long and as detailed as is necessary and consonant with their purpose of providing a framework for actions directed at conserving or, at least, insuring the survival of the subject species.

H.R. REP. No. 95-1625 (1978), reprinted in 1978 U.S.C.C.A.N. 9453 (emphasis added).

51. Section 4 also directs the Secretary to develop and implement recovery plans that are designed to return endangered and threatened species to healthy population levels. See H.R. Rep. 97-567 (1982), reprinted in 1982 U.S.C.C.A.N. 2807.

52. Other witnesses discussed the implementation of recovery plans which provide an essential program to improve a species' status. However, with limited resources, the Secretary must judiciously choose where those resources will accomplish the maximum amount of recovery for depleted species.

Id.

53. Id.

54. In its 1983 "Listing and Recovery Priority Guidelines" the FWS still gave delisting only modest attention. See 48 Fed. Reg. 16756 (Apr. 19, 1983).

55. 51 Fed. Reg. 19926 (June 3, 1986).

56. 50 C.F.R. § 402.02. This definition elaborated slightly on a 1978, pre-recovery planning section, definition of recovery included in an earlier set of joint FWS/NMFS regulations: "'Recovery' means improvement in the status of listed species to the point at which listing is no longer required." 45 Fed. Reg. 870, 875 (Jan. 4, 1978).

57. 51 Fed. Reg. at 19931.

58. Endangered Species Act Amendments of 1988, Pub. L. No. 100-478, 102 Stat. 2306 (1988).

59. Id.

60. U.S. NMFS, Threatened Fish and Wildlife; Guadalupe Fur Seal, 50 Fed. Reg. 294, 297 (Jan. 3, 1985).

61. U.S. FWS, Availability of Draft Recovery Plans for the Colorado Squawfish, Humpback Chub, and Bonytail Chub for Review and Comment, 54 Fed. Reg. 30616 (July 21, 1989).

62. U.S. FWS, Availability of the Agency Draft Recovery Plan for Roan Mountain Bluet for Review and Comment, 58 Fed. Reg. 41801 (Aug. 5, 1993):

Restoring endangered or threatened animals or plants to the point where they are again secure, self-sustaining members of their ecosystems is a primary goal of the [FWS'] endangered species program. To help guide the recovery effort, the [FWS] is working to prepare recovery plans for most of the listed species native to the United States. Recovery plans describe actions considered necessary for conservation of the species, establish criteria for recognizing the recovery levels for downlisting or delisting them, and estimate time and cost for implementing the recovery measures needed.

U.S. FWS, Notice of Availability of a Draft Recovery Plan for Blue Shiner for Review and Comment, 59 Fed. Reg. 27577 (May 27, 1994); Notice of Availability of a Draft Revised Recovery Plan for the Piping Plover, Atlantic Coast Population for Review and Comment, 60 Fed. Reg. 7067 (Feb. 6, 1995).

63. U.S. FWS, Proposed Determination of Critical Habitat for the Mojave Population of the Desert Tortoise, 58 Fed. Reg. 45748, 45752 (Sept. 8, 1993); Determination of Critical Habitat for the Mojave Population of the Desert Tortoise, 59 Fed. Reg. 5820, 5832 (Feb. 8, 1994). U.S. FWS, Proposed Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover, 60 Fed. Reg. 11768, 11770 (Mar. 2, 1995).

64. U.S. FWS, REPORT TO CONGRESS ON THE RECOVERY PROGRAM FOR THREATENED AND ENDANGERED SPECIES (1996) [hereinafter 1996 REPORT TO CONGRESS].

65. Id. at 2.

66. See U.S. FWS, Recovery and Delisting, at http://endangered.fws.gov/recovery/index.html (last visited July 31, 2001).

67. Doremus, supra note 6, at 10445.

68. Id. at 10446-49.

69. WWF INTERNATIONAL, LIVING PLANET REPORT 2000, available at http://www.panda.org/livingplanet/lpr00 (last visited July 31, 2001).

70. Id. at 4.

71. Id. at 6.

72. Id. at 8.

73. PRECIOUS HERITAGE: THE STATUS OF BIODIVERSITY IN THE UNITED STATES (Bruce A. Stein et al. eds., 2000).

74. NORMAN MYERS, THE SINKING ARK: A NEW LOOK AT THE PROBLEM OF DISAPPEARING SPECIES (1979).

75. PAUL EHRLICH & ANNE EHRLICH, EXTINCTION: THE CAUSES AND CONSEQUENCES OF THE DISAPPEARANCE OF SPECIES (1981).

76. Proposal to Remove the Aleutian Canada Goose From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 42058 (Aug. 3, 1999).

77. Proposed Rule to Remove the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened, 64 Fed. Reg. 36454 (July 6, 1999).

78. See Final Rule to Remove the Aleutian Canada Goose From the Federal List of Endangered and Threatened Wildlife, 66 Fed. Reg. 15643 (Mar. 20, 2001); Proposal to Reclassify and Remove the Gray Wolf From the List of Endangered and Threatened Wildlife in Portions of the Coterminous United States, 65 Fed. Reg. 43450 (July 13, 2000); Final Rule to Remove the American Peregrine Falcon From the Federal List of Endangered and Threatened Wildlife and to Remove the Similarity of Appearance Provision for Free-Flying Peregrines in the Coterminous United States, 64 Fed. Reg. 46542 (Aug. 25, 1999); 64 Fed. Reg. at 36454; Removal of Arctic Peregrine Falcon From the List of Endangered and Threatened Wildlife, 59 Fed. Reg. 50796 (Oct. 5, 1994); Proposed Rule to Delist the Douglas County Population of Columbian White-Tailed Deer, 64 Fed. Reg. 25263 (May 11, 1999); Final Rule to Remove the Eastern North Pacific Population of the Gray Whale From the List of Endangered Wildlife, 59 Fed. Reg. 31094 (June 16, 1994); Reclassification of the American Alligator to Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range, 52 Fed. Reg. 21059 (June 4, 1987); Removal of the Brown Pelican in the Southeastern United States From the List of Endangered and Threatened Species, 50 Fed. Reg. 4938 (Feb. 4, 1985).

79. 59 Fed. Reg. at 50796.

80. Id.

81. Id.

82. U.S. EPA, Consolidated DDT Hearings, Opinion and Order of the Administrator, 37 Fed. Reg. 13369 (July 7, 1972).

83. Reclassification of Arctic Peregrine Falcon and Clarification of Its Status, 49 Fed. Reg. 10520 (Mar. 20, 1984).

84. 59 Fed. Reg. at 50800.

85. Id. ("Although the rate of habitat alteration in nesting, migration, and wintering habitats is greater now than in the past, the rapid increase in the number of Arctic peregrine falcons during the last 15 years indicates that habitat modification does not currently threaten the continued existence of the subspecies.").

86. 16 U.S.C. § 1533(e), ELR STAT. ESA § 4(e).

87. 59 Fed. Reg. at 50796 ("Removal of the Arctic peregrine falcon as a threatened species under the Act will not affect the protection provided under the similarity of appearance provision of the Act."); id. at 50799 ("Take of Arctic peregrine falcons will remain prohibited under the Act in the coterminous 48 States by the listing of all Falco peregrinus wherever found in the wild due to similarity of appearance."); id. ("Take of Arctic peregrine falcons migrating through the 48 coterminous States will be prohibited under the Act due to the listing of all Falco peregrinus due to similarity of appearance."); id. ("[The FWS] considers all Falco peregrinus in the coterminous 48 States to be endangered under the similarity of appearance provision of the Act and this consideration will not be affected by delisting Arctic peregrine falcons."); id. at 50800 ("All Falco peregrinus found in the wild in the coterminous 48 States are listed as endangered due to similarity of appearance."); id. at 50801 ("Arctic peregrine falcons will remain protected by the similarity of appearance provision of the Act while in the coterminous 48 States as long as other subspecies occurring in this area remain listed."); id. at 50802:

The [FWS] considers "all free-flying Falco peregrinus, not otherwise identifiable as a listed subspecies, to be endangered under the similarity of appearance provision in the 48 coterminous States." … Therefore, Arctic peregrine falcons will be protected as endangered or threatened while migrating through the 48 coterminous States as long as American peregrine falcons that occur in this area are classified as endangered or threatened.

88. Id. at 50801.

89. Id.

90. 64 Fed. Reg. at 46542.

91. Id. at 46557.

92. 59 Fed. Reg. at 50801; 64 Fed. Reg. at 46555.

93. 50 C.F.R. § 10.13 (list of migratory birds).

94. 16 U.S.C. § 703.

95. United States v. Eagleboy, 200 F.3d 1137, 1138, 30 ELR 20274, 20274 (8th Cir. 1999) (holding that prosecution of defendant, not a member of a recognized Indian tribe, was not discrimination "inasmuch as the United States has adopted a policy under which members of federally-recognized Indian tribes may possess migratory bird parts").

96. Defenders of Wildlife v. EPA, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989).

97. United States v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997) ("The MBTA, by its plain language, does not subject the federal government to its prohibitions."); but see Humane Soc'y of the United States v. Glickman, 217 F.3d 882, 30 ELR 20758 (D.C. Cir. 2000) (requiring federal agency to obtain permits for taking of Canadian geese).

98. Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 22 ELR 20372 (9th Cir. 1991); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115, 28 ELR 20020, 20022 (8th Cir. 1997); but see United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1075 (D. Colo. 1999).

99. 59 Fed. Reg. at 50803.

100. 64 Fed. Reg. at 46554-55.

101. 64 Fed. Reg. at 36454.

102. Id.

103. Id. at 36455:

Widespread shooting for feathers and trophies led to extirpation of eagles in some areas. Shooting also reduced part of the bald eagle's prey base. Big game animals like bison, which were seasonally important to eagles as carrion, were decimated. Waterfowl, shorebirds and small mammals were also reduced in numbers. Carrion treated with strychnine, thallium sulfate and other poisons were used as bait to kill livestock predators and ultimately killed many eagles as well. These were the major factors, in addition to loss of nesting habitat from forest clearing and development, that contributed to a reduction in bald eagle numbers through the 1940s.

104. Id. at 36457.

105. Id. at 36456-57.

106. Id. at 36458.

107. Id. at 36457.

108. 16 U.S.C. §§ 668-668d; see United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1075 (D. Colo. 1999).

109. Defenders of Wildlife v. EPA, 882 F.2d 1294, 1301, 19 ELR 21440, 21443 (8th Cir. 1989).

110. 16 U.S.C. § 3372(a).

111. 64 Fed. Reg. at 36459.

112. 16 U.S.C. § 1533(a)(1)(D), ELR STAT. ESA § 4(a)(1)(D) (requiring consideration of the inadequacy of other regulatory mechanisms in making listing determinations).

113. 50 Fed. Reg. at 4938.

114. Id. at 4938.

115. 35 Fed. Reg. 16047 (June 2, 1970).

116. 50 Fed. Reg. at 4938-39.

117. Id. at 4939.

118. Id. at 4940-41.

119. Id. at 4939.

120. Id. at 4938.

121. U.S. FWS, RECOVERY PLAN FOR THE EASTERN BROWN PELICAN iii (1980).

122. Id. at 3-6.

123. Id. at 7.

124. Id. at 11-12.

125. Id. at 29-30.

126. Id. at 8.

127. Id.

128. Id. at iv.

129. Id. at 39.

130. Id.

131. See 1996 REPORT TO CONGRESS, supra note 64, at 6; Department of the Interior, Unified Agenda of May 16, 2001, 66 Fed. Reg. 25510 (May 16, 2001).

132. 66 Fed. Reg. at 15643.

133. 32 Fed. Reg. 4001 (Mar. 11, 1967).

134. 55 Fed. Reg. 51106 (Dec. 12, 1990).

135. 66 Fed. Reg. at 16643.

136. 64 Fed. Reg. at 42058.

137. Id. at 42059.

138. 66 Fed. Reg. at 15651

139. 64 Fed. Reg. at 42061.

140. 64 Fed. Reg. at 42062. I would be guilty of rhetorical excess if I did not reveal that the 1991 Aleutian Canada goose recovery plans says that "failure to achieve the specific acreage target will not necessarily preclude delisting." U.S. FWS, ALEUTIAN CANADA GOOSE RECOVERY PLAN 22 (1991).

141. 66 Fed. Reg. at 15648.

142. 65 Fed. Reg. at 43450.

143. Id.

144. Id. at 43455-56.

145. Id. at 43457.

146. Id.

147. Id. at 43475-77.

148. Id. at 43491 (proposed rule designating nonexperimental Montana wolves as threatened).

149. Id.

150. See U.S. FWS REGION 3, PROPOSAL TO RECLASSIFY AND DELIST THE GRAY WOLF IN THE LOWER 48 STATES, available at http://midwest.fws.gov/wolf/proposal (last visited July 31, 2001).

151. A species in the biological sense is not necessarily the same as a species defined by the ESA. A species, according to the Act, "includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16), ELR STAT. ESA § 3(16). The FWS and the NMFS have adopted a policy to clarify their interpretation of the phrase "distinct population segment of any species of vertebrate fish or wildlife" for the purposes of listing and "delisting" species under the ESA. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996).

152. 65 Fed. Reg. at 43472-73.

153. Id. at 43473.

154. Id.

155. Id.

156. Id. at 43456.

157. Id. at 43479.

158. 59 Fed. Reg. at 31094.

159. The western North Pacific gray whale population, which migrates off the coast of Asia remains listed as an endangered species. Id.

160. See 16 U.S.C. § 1372(a), ELR STAT. MMPA § 102(a) (Marine Mammal Protection Act).

161. Gray Whale: Proposed Rule, 56 Fed. Reg. 58869, 58871-72 (Nov. 22, 1991).

162. Secretary of the Interior v. California, 464 U.S. 312, 361, 14 ELR 20129, 20141 (1984) ("The FWS and [the] NMFS biological opinions, appended to the [Secretarial Issue Document], indicate the likelihood that development and production activities may jeopardize the existence of the southern sea otter and the gray whale."); Natural Resources Defense Council v. Hodel, 865 F.2d 288, 299, 19 ELR 20386, 20392 (D.C. Cir. 1988) ("Those species which pass through other areas with potentially high risk of an oil spill (such as California) are most vulnerable to high impacts from a spill. For example, the coastal migration routes of the California gray whale which could subject a large segment of the population to an oil spill. [sic]" (quoting final environmental impact statement for continental shelf leasing program)); Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir. 1988) ("In its biological opinion, the NMFS determined that a "major oil spill in the waters of the southeastern Bering Sea during peak migration periods of gray whales is likely to jeopardize the continued existence of the species."); Village of False Pass v. Clark, 733 F.2d 605, 14 ELR 20398 (9th Cir. 1984); North Slope Borough v. Andrus, 642 F.2d 589, 610, 10 ELR 20832, 20844 (D.C. Cir. 1980):

Since the administrative parties have indicated that the letter of 6 November was requested by [the] BLM as, and intended by [the] NMFS as, a "biological opinion," and since these contentions are not unreasonable, we accept the letter (and associated documents) as such…. Furthermore, as the letter of 6 November vouched for the safety of the whales conditionally, … satisfaction of ESA's section 7(a)(2) requiring the Secretary to ensure that his "actions will not jeopardize bowhead and gray whales," would depend on whether "the alternatives suggested below (in the 6 November letter) are adopted."

163. Gray Whale: Notice of Determination, 58 Fed. Reg. 3121, 3127-32 (Jan. 7, 1993).

164. 56 Fed. Reg. at 58871.

165. 58 Fed. Reg. at 3131 (emphasis added). See also 56 Fed. Reg. at 58872:

[The] NMFS concludes that current and near-future levels of human activities do not pose a threat to the species' continued existence, but does not rule out the possibility that parts or all of this stock and certain components of its habitat have been and/or are being stressed or that the effects will not be manifested over time as changes in productivity, mortality or distribution.

166. Gary Polakovic, State Can Bar Off Shore Drilling, Judge Rules, L.A. TIMES, June 23, 2001, at A1.

167. 64 Fed. Reg. at 25263.

168. Id. at 25264.

169. 32 Fed. Reg. at 4001.

170. 64 Fed. Reg. at 25266. Interestingly, at the time, the Douglas County population was not considered part of the species by the state of Oregon. Instead, the state characterized the population as black-tailed deer or as a hybrid between the black-tailed deer and the Columbian white-tailed deer. Accordingly, the state continued to allow hunting of the population until 1978. See id. at 25264. But that is another story.

171. Id.

172. Id. at 25265.

173. Id.

174. Id. (emphasis added).

175. Id. at 25264.

176. DOUGLAS COUNTY, OR. LAND USE CODE art. 32 (1997) (Supplementary Provisions for Natural Resource Areas) (on file with author).

177. 64 Fed. Reg. at 25264.

178. See id. at 25264 (background); id. at 25265 (The present or threatened destruction, modification, or curtailment of its habitat or range."); id. at 25266 ("The inadequacy of existing regulatory mechanisms.").

179. Press Release, Center for Biological Diversity, Groups Oppose Delisting of Endangered Columbian White-Tailed Deer in Oregon (July 29, 1999), available at http://www.sw-center.org (last visited July 31, 2001).

180. 130 F. Supp. 2d 121, 31 ELR 20477 (D.D.C. 2001). Rather than providing criteria for the species' eventual delisting, the Sonoran Pronghorn recovery plan provided only numerical criteria for reclassifying the species from endangered to threatened.

These criteria plainly do not address the five delisting factors. Defendants argue that the factors are otherwise addressed in the plan in that certain recovery actions recognize, study, and attempt to address these five categories of potential threats. The fact that these factors are discussed elsewhere in the plan as areas for further research fails to satisfy the requirement that the criteria proposed for downlisting address these five factors and whether these factors pose a continuing threat to the species.

Id. at 133, 31 ELR at 20481.

181. 903 F. Supp. 96, 26 ELR 20537 (D.D.C. 1995).

182. Id. at 111, 26 ELR at 20543 ("Congress has spoken in clarion terms: the objective, measurable criteria must be directed towards [sic] the goal of removing the endangered or threatened species from the list." The court followed the reasoning of the legislative history presenting species recovery as the mirror image of species listing: "Since the same five statutory factors must be considered in delisting as in listing, … the Court necessarily concludes that the FWS, in designing objective, measurable criteria, must address each of the five statutory delisting factors and measure whether threats to the grizzly bear have been ameliorated.").

183. For a discussion of the legal significance of minimum viable population sizes, see Jason Patlis, Recovery, Conservation, and Survival Under the Endangered Species Act: Recovering Species, Conserving Resources, and Saving the Law, 17 PUB. LAND & RESOURCES L. REV. 55, 59-68 (1996).

184. See, e.g., U.S. FWS, BROWN PELICAN RECOVERY PLAN iv (1980) ("The Recovery Team views the wide distribution of the species, rather than its absolute numbers, as its major strength against extinction.").

185. 50 Fed. Reg. at 4939 ("The 1983 and 1984 breeding population expansion in Alabama is considered further evidence of the healthy state of this pelican population. In 1983 there were four nests and in 1984 there were eight.").

186. Id. at 4943.

187. 58 Fed. Reg. at 3129 ("Because of the gray whale's abundance and range … the present gray whale population could likely tolerate without significant effects the short-term and non-recurring local impacts brought on by seismic exploration."); id. at 3134:

Some commenters contend that although the stock is not currently threatened, human activities have the potential to threaten the stock in the future…. However, potential future threats, as opposed to actual, present-day threats, are neither sufficient to justify listing a species nor sufficient for retaining a recovered species on the List according to the factors that must be considered under the ESA. If they were, then … the majority of the world's animals would have to be included on the List, as large numbers of species are potentially threatened by the growth of human populations, current rates of habitat destruction, and other harmful activities. [The] NMFS believes that the increasing abundance of this stock, in close proximity to human coastal development, industrial activity and vessel traffic, suggests that this stock has the resiliency to adjust to human activities with few apparent adverse effects.

188. 59 Fed. Reg. at 50798:

The criterion requiring eggshells to average less than 10[%] thinner than pre-DDT era shells was based upon the observation that Peale's peregrine falcons in the Aleutian Islands reproduced normally with shells 8[%] thinner than normal in the early 1970s. This assumed that peregrine falcons could not reproduce normally if shells were more than 10[%] thinner than normal. Subsequent field work has shown this to be incorrect. Although the degree of thinning has gradually decreased over time, shells collected in arctic Alaska still average approximately 12.5[%] thinner than pre-DDT era shells. Reproduction, however, has been sufficient to fuel population growth since the late 1970s, and productivity has met or exceeded the stated objective for 12 years.

189. 64 Fed. Reg. at 46545.

190. Id. at 42061.

191. 64 Fed. Reg. 42062:

We have not fully met the recovery objective of conserving and managing 25,000-35,000 [acres] of migration and wintering habitat; however, the recovery team allowed that not attaining this acreage target would not preclude delisting …. We believe that sufficient progress is being made toward this objective to warrant delisting the Aleutian Canada goose. The population has responded very favorably to management actions taken on its behalf by the [FWS], States, and private landowners in migration and wintering areas.

192. 62 Fed. Reg. at 42061 ("The Aleutian Canada Goose Recovery Plan (Byrd et al. 1991) identified the following recovery objective …; (2) at least 50 pairs of geese are nesting in each of three geographic parts of the historic range — western Aleutians (other than Buldir Island), central Aleutians, and Semidi Islands, for three or more consecutive years."); id. at 42060 ("The peak count of Semidi Island birds on their wintering grounds near Pacific City, Oregon, during both 1998 and 1999 was 115-120 (D. Pitkin, [FWS], pers. comm.). Despite protection on both the breeding and wintering grounds, the Semidi Islands geese have sustained no growth since 1993….").

193. 65 Fed. Reg. at 43455-58.

194. 64 Fed. Reg. at 25264.

195. 66 Fed. Reg. at 15647-48.

196. 32 Fed. Reg. at 4001.

197. In 1966, Congress passed the first law purportedly designed specifically to protect endangered species as such. The first species officially listed where listed pursuant to that law. See id. The Endangered Species Protection Act of 1966 expressed a general concern about the "extermination of some native species of fish and wildlife" without providing programs or penalties that might burden the federal government, the states, or individuals. Pub. L. No. 91-135, 83 Stat. 275 (1969) (repealed 1973). Three years later, Congress took another turn at endangered species legislation. The Endangered Species Conservation Act of 1969 outlawed the importation of endangered species of fish and wildlife into the United States. The guidelines for listing a species as endangered were more limited than those set out in the 1966 Act. To be subject to the protections of the 1969 Act, a species had to be "threatened with worldwide extinction" based on "the best scientific and commercial data available." Pub. L. No. 92-522, 86 Stat. 1027 (1972) (codified as amended at 16 U.S.C. §§ 1361-1407).

198. 64 Fed. Reg. at 42066 (contemplating the possible relisting of the Aleutian Canada goose, but making no reference to emergency listing); 59 Fed. Reg. at 50803 (Arctic peregrine falcon):

If evidence acquired during this monitoring period shows that endangered or threatened status should be reinstated to prevent a significant risk to the species, the [FWS] may use the emergency listing authority provided for by the Act. At the end of the 5-year monitoring period, the [FWS] will, based upon results of monitoring efforts, decide if relisting, continued monitoring, or an end to monitoring activities is appropriate.

64 Fed. Reg. at 25267 (Columbia white-tailed deer) ("This monitoring program will continue for at least five years and, if at any time during that period data indicates that the species' well-being is under a significant risk, we can initiate listing procedures, including, if appropriate, emergency listing."); id. at 36462 (contemplating an emergency listing of the bald eagle).

199. Editorial, Species Strategy Has Backfired Lawsuits Over Critical Areas Divert Money From Protection, SEATTLE POST-INTELLIGENCER, Dec. 29, 2000, at B5.

31 ELR 11302 | Environmental Law Reporter | copyright © 2001 | All rights reserved