B&C Position Statement - Endangered Species Act

First Adopted July 27, 2011 - Updated November 1, 2019

Situational Overview

The Endangered Species Act of 1973 and its amendments (ESA) is considered one of the most ambitious wildlife laws ever enacted. The conservation movement of the 20th century had produced dramatic results by actively restoring native wildlife species by relocating animals from strong populations to areas where they had been eliminated. The ESA was intended to regulate habitat loss, pesticides, and other factors that affects species, and gave the U.S. Fish and Wildlife Service (FWS) and NOAA Fisheries the authority to determine which species are threatened or endangered with extinction. It is difficult to be sure how well it has worked. What is clear is that some of the modern developments in science and improved wildlife management are difficult to carry out under the outdated, controversial, and often misused, original law.

The ESA is vulnerable to lawsuits against the federal agencies filed by activist groups, many times more often interested in obstructing development than promoting species recovery. This vulnerability is so great that the Inspector General of the Department of the Interior has concluded that litigation or the threat of litigation drives the entire program. The most notorious of these lawsuits exploit the ESA legal requirement that decisions on proposals to list new species must be completed within 1 year. By proposing multiple species for listing simultaneously, activists have created a backlog of violations of the 1-year requirement, which constantly reshuffles the schedule for listing decisions. Another common legal attack claims that recovery goals, in the few cases where they are achieved, are no longer valid and must be reconsidered. The ability of nonprofit organizations to exploit these flaws, coupled with economic incentives they receive for suing, has made the ESA dysfunctional.

Even lawsuits that are settled out of court – an increasingly common practice – allow plaintiffs to recoup their legal fees under the Equal Access to Justice Act. The fee awards, which total millions of dollars annually, are paid by the federal government. These fee awards do not support conservation; instead, they are used to fund more ESA litigation. Costs, however, must be measured beyond just awards paid. Legal bills and federal staff time addressing litigation divert money needed for species recovery. 

The Boone and Crockett Club supports the fundamental concept and intent of the ESA to conserve endangered and threatened species. The Club believes the ESA, now almost 50 years old, should be modernized to clear a path for effective wildlife conservation to take place and move away from technical wildlife management decisions having to be interpreted by the courts, or made by Congress.

Position

The Boone and Crockett Club believes the ESA is a critical tool and supports modernizing the ESA to make it more effective in promoting the active restoration of species. However, there seems to be a reluctance to acknowledge that we can do better (especially by activist organizations that could lose the financial incentives to sue the Act now provides). Since the Act was passed in 1973, the world has witnessed significant technological and scientific advancement in wildlife management. These innovations must be considered and adopted in the implementation of the ESA.

The Boone and Crockett Club, as well as most other progressive thinkers, want the Act to be a success. The low percentage of recovery achieved under the current implementation of the Act is a strong indication improvements are needed. Abuse of our laws, the taxpayers, the FWS, the NOAA, and the court system should be replaced by action on behalf of listed species; the focus should be placed on recovery. The ESA should remain as a powerful backstop against irresponsible practices that place undue pressure on natural resources. This can be done without attempting to stop all human growth or development or inhibit future conservation strategies that could benefit imperiled wildlife.

Scientists know that threatened and endangered species fall across a spectrum of challenges that require a diverse array of solutions. Some species respond well and recover if we simply set aside habitat or reduce the use of harmful chemicals. Other species require more intensive, long-term management strategies. And others continue to struggle no matter what restrictions and conservation measures are implemented regardless of what the law mandates. 

The endless pursuit of unrealistic and unachievable results for wildlife using the judicial system is not only untenable, it ignores ecological, economic, and social realities. The true size of the problem, in terms of numbers of species involved and their geographical needs is very apparent, as is the impossibility of conserving every species of native plants or animals in all the places they historically existed due to the expansion of human population, industrialization, or other land-use changes. Modernization efforts should focus on more efficiently addressing the actual extinction threats species face today, more clearly defining criteria for listing and de-listing species, and providing newer criteria for success and failure of programs.

Legislators should begin by eliminating the legal technicalities that obstruct listing and delisting decisions and the legal loopholes enabling excessive litigation. They should also adjust the ESA’s outdated and ambiguous provisions to foster realistic and achievable outcomes for at-risk threatened and endangered species. The United States has been blessed through the innovations in technology discovered throughout the last fifty years. It is long past time to apply those same innovations in order to achieve better results from the ESA rather than seemingly endless litigation costs where no one – wildlife or person – wins. 

Modernizing the ESA’s outdated provisions will release the power of active, adaptive approaches to the challenges wildlife and people face today. New voluntary, incentive-based habitat conservation programs will help improve populations of species. Habitat conservation works; before 1990, for example, wetland birds were on the decline, trending down by 10 percent annually. Since wetland protection, restoration, and enhancement measures were added to the Farm Bill in 1991, those populations have increased by 51 percent.  

The water quality and wetland-related provisions of the Farm Bill are demonstrating that widespread wildlife population declines are reversible by habitat conservation. The voluntary, incentive-based mechanisms of the Farm Bill have also provided regulatory assurances to agricultural producers in regards to the Clean Water Act. The ESA, on the other hand, does not have a significant habitat mechanism to assist it like the Farm Bill does for the Clean Water Act. Having one would not only result in regulatory assurances for people, but result in significant population gains for many species. Private sector investment in habitat and population improvement will be accelerated if people can earn immunity from protections intended to slow development.

The Boone and Crocket Club maintains this type of voluntary, incentive-based habitat restoration approach presents an opportunity to solve many problems associated with the extinction of species in a manner that will maintain a strong economy and respect private property rights. As long as the status quo of not increasing habitat and therefore not increasing populations is maintained, the full recovery of populations of many species will not occur. Three-quarters of the currently listed species now inhabit private lands, and private incentives for landowners are essential. As has been proven with other wildlife laws, private landowners can achieve strong on-the ground results for wildlife if they are given a voice and the incentives to do so.