If I say the sky is purple and you say it’s blue, so I challenge you to prove it, what would you do? How do you prove something nobody has spent money studying because it’s never been questioned before? Are there any scholarly, peer-reviewed journal studies proving conclusively, in a “settled science” sort-of way, what color the sky is?
This has been one of the primary dilemmas in administering the Endangered Species Act since the day it was signed into law in 1973. Someone suggests a species is in danger of extinction, and someone else says it isn’t. How does the agency in charge, U.S. Fish and Wildlife Service (USFWS), decide? Officials are supposed to rely on the best available science, but what if there isn’t much to go on?
The question occurs again now, as USFWS has announced it will add nine more species to the
endangered list – which already includes 2,412 plants, animals, birds, fish, and bugs. The agency is already adding 65 new species, so what’s another nine among friends?
The new species include two colorful Indonesian fish, though our government can’t really regulate Indonesian fishermen. The decision also includes two Appalachian salamanders, a southwestern firefly, a Mojave Desert penstemon plant, and a toad that supposedly lives only in one Nevada county. But it also includes two species whose listed habitat includes Colorado: the pygmy rabbit, which does not live in Colorado, and the southern plains bumble bee, which thrives across 33 states.
This is how the Endangered Species Act has evolved over its 50-year history. The process, contrary to original intent, has become relatively simply. An environmental industry group or coalition petitions USFWS to add a species to the list, and the agency does so. If it declines, a lawsuit follows, and eventually some federal judge will order the listing anyway, so officials have learned that it is easier to list species than not. Not to mention the inherent incentives for more listings (in the federal system, more stuff always means more money, staff, and power). They have absolutely nothing to lose.
The pygmy rabbit case shows how the system can twist biological reality, especially in determining range and habitat. The listing petition was filed by four environmental industry groups last spring. In explaining the background, the petition asserted, “Today, the pygmy rabbit is patchily distributed throughout the Great Basin and adjacent intermountain areas of the western U.S, from southeastern Oregon and southern Idaho to southwestern Montana and south central Wyoming and northwestern Colorado…” To appear scientifically correct, an included footnote said, “A complete description of pygmy rabbit range, distribution, and natural history was provided in the September 2010 determination…” In other words, citing the USFWS’s own document.
But watch this – what that 2010 document actually said was, “The pygmy rabbit’s historical range includes portions of Washington, Oregon, Idaho, Montana, Wyoming, California, Nevada and Utah.” There was no mention of Colorado, because as a later section clarified, “Pygmy rabbits occur within a portion of this area, but they are not known to occur in Arizona, Colorado, North or South Dakota, or New Mexico.”
A small population was apparently found to have crossed over from southern Wyoming once years ago (bunnies apparently don’t know where the border is) but has not been seen since. Even the petition acknowledges that state wildlife “camera traps” have found no pygmy rabbits since.
The Southern Plains bumble bee represents another common abuse. An 85-page listing petition from the Center for Biological Diversity describes the current range of the species in a way that proves on its face the bees are not in danger of extinction. It admits the bumble bees have been detected in 28 states and 500 counties, an included map showing “recent occurrences” from Florida to New Mexico and Virginia to South Dakota. The “recent range” is said to be roughly 1.25 million square miles, about a third of the United States.
Contrary to popular myth, the Endangered Species Act does not require good science, sound science, peer-reviewed science, or even accurate science. It merely requires the “best available” science. Frequently, the petitioning organization has the “best available” scientific information. In this case, an 85-page analysis was probably the only available science on the range of Southern Plains bumble bees. So, the listing outcome is entirely predictable.
Various petitioners now seek another 3,178 more endangered listings. It might be easier to list those not endangered – pigeons, feral cats, and mosquitos maybe? I say those are not endangered, but don’t ask me to prove it. I have no studies to cite.
Greg Walcher is president of the Natural Resources Group and author of “Smoking Them Out:
The Theft of the Environment and How to Take it Back,” now in its second printing. He is a newspaper columnist,
former head of the Colorado Department of Natural Resources, and former President of Club 20.
