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ESA Delisting Process is Failing According to Testimony by Kenneth Artz Heartland Institute, June 9, 2016

Witnesses at a U.S. House Oversight and Government Reform Committee hearing in April testified the Endangered Species Act (ESA) lacks a proper process for delisting species, which they say results in many species remaining on the Endangered Species List when they do not belong there.

There are currently 2,258 species protected under ESA, and only 63 have been delisted since the law's enactment in 1973. Joel Bousman, the vice president of the Western Interstate Region of the National Association of Counties, testified at the hearing, saying, "When a species is put on the Endangered Species Act list, it's a bit like checking into the Hotel California. You can check out anytime you like, but you can never leave."

Citizen Suits, Deadline Prioritize Species Listing

Two reasons cited for the ESA's poor track record of delisting species by several of those testifying were strict deadlines for making listing decisions and ESA's citizen-suit provisions.

Maryland attorney Lowell E. Baier testified, "[ESA's] citizen-suit provision . . . has made federal courts a venue where extreme organizations . . . can twist the Endangered Species Act and bend the federal government to their will. Part of their agenda is to always increase the number of species and amount of land protected under the Endangered Species Act, and so they have used the courts to oppose delisting of recovered species."

Ron Arnold, executive vice president of the Center for the Defense of Free Enterprise, says ESA's citizen-suit provisions have been used as part of a backdoor effort to control land use.

"Contrary to what people may think, the ESA has nothing to do with animals," said Arnold. "Instead, it is a land-use control bill that declares if you disturb the habitat of an ESA-listed animal, you can get one year in jail and a $50,000 fine for every violation.

"The whole thing boils down to using the ESA's regulatory power to control industry," said Arnold. "Delisting harms anyone who gets foundation grants to expand the ESA's reach, so it's in their interest to make sure no species ever gets delisted from the ESA."

Wyoming rancher and attorney Karen Budd-Falen focused in her testimony on how lawsuits force the U.S. Fish and Wildlife Service (FWS) to focus their attention on listing decisions and deemphasize delisting.

"[T]he FWS' documents prove that litigation is driving the agency's priorities, not sound science or administrative determinations," testified Budd-Falen. "For example, a memorandum prepared by the assistant director for ecological services of the FWS in May 20, 2014, states that the priorities of the FWS will be to focus on court-ordered and settlement deadlines."

Budd-Fallen says developing a species recovery plan as required by the law is not a priority for the FWS, because ESA "establishes no timeframe to develop a recovery plan. All the Act mandates that one be developed; no timeframe is given . . ."

ESA contains very strict timeframes for listing species and designating critical habitat and constant litigation drains FWS' budgets.

"Violation of those timeframes has and will continue to result in significant litigation (resulting in significant payment of attorney's fees to environmental groups bringing such litigation)," Budd-Fallen states in her testimony.

Punitive Approach Hampers Recovery

Brian Seasholes, director of the Endangered Species Project at the Reason Foundation, says the ultimate goal of ESA should be to recover species, which means they should then be delisted.

"The ESA takes a punitive approach to conservation, creating perverse incentives for private landowners to choose not to cooperate, which is unfortunate because many ESA species are on private land," Seasholes said.

"The punitive, conflict-ridden approach of the ESA insures few will voluntarily cooperate with the ESA," said Seasholes. "Imagine if the ESA was trying to help homeless people. Under the current arrangement, the ESA wouldn't give you any help or money if the homeless showed up on your doorstep. Instead, you might get fined or shut down when they do if you don't provide for their upkeep.

"This is what happens to farmers and landowners when endangered species are located on the property, so you can understand why landowners are reluctant [to] admit an endangered species might be on the property and often manage their land to make it unattractive to species," Seasholes said.