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Broken law overloads feds

Published on December 10, 2010 3:01AM

Last changed on January 7, 2011 8:38AM

U.S. Forest Service
<br>Habitat favored by the threatened spotted owl is prone to forest fires.

U.S. Forest Service
Habitat favored by the threatened spotted owl is prone to forest fires.

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The U.S. Fish and Wildlife Service has become the favorite legal punching bag of nearly every environmental group. When it comes to the Endangered Species Act, the federal agency appears to be in a strictly reactive mode.

With more than 1,375 species listed in the U.S. as endangered or threatened, the agency -- and its aquatic counterpart, the National Marine Fisheries Service -- seem to be treading water as lawsuit after lawsuit is filed over the ESA. In a 2005 report the Government Accountability Office found that the Fish and Wildlife Service had become "overburdened by litigation."

That has not changed in the intervening five years. "You can imagine there is always quite a workload," agency spokeswoman Joan Jewett told the Capital Press last week.

While most lawsuits seek to put or keep a species on the endangered or threatened list, one filed recently on behalf of a group of Washington state agricultural groups sought to have the agency review whether the listing of several species is still warranted.

Included was the northern spotted owl, whose listing as threatened has devastated the region's timber industry. Since the listing in 1990, logging in old-growth forests has plummeted. Other species up for review are the Oregon silverspot butterfly, the showy stickseed and the Wenatchee Mountains checkermallow.

Despite the importance of the spotted owl's listing to people and the economy, the Fish and Wildlife Service has been too busy to follow the law of its own accord. According to the Endangered Species Act, the secretary of the Interior must conduct, at least once every five years, a review of all species included on the list to determine whether their status should be changed.

That doesn't always happen.

"So often we see the species go on the list, but they don't tend to go off," said Daniel Himebaugh, an attorney for the Pacific Legal Foundation. "A listing can have a very adverse effect on private property. We want to make sure the science actually justifies it."

It is understandable the Fish and Wildlife Service managers and lawyers would find themselves up to their briefs in lawsuits. Trying to enforce a law that is so profoundly broken cannot be an easy job.

Environmental groups use the ESA as a cash cow, filing lawsuit after lawsuit not so much to protect a species but to shake the federal money tree. Under federal law, these groups receive legal costs if they can show that the agency in any way muffed its enforcement of the law.

From 1974 to 1991, two lawsuits were filed against the Fish and Wildlife Service over the ESA. During the following decade more than three dozen suits were filed. Now it is a common occurrence.

"Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11.7 million in attorneys fees and costs," Karen Budd-Falen, a Wyoming lawyer who tracks ESA lawsuits, said in an opinion piece she wrote.

That is only the tip of the iceberg, she said, because ESA listings occur in all 50 states.

With the Fish and Wildlife Service trying to track so many species, it is no wonder the environmental juggernaut can pick apart nearly anything the federal agency does under the ESA.

This often leaves folks whose livelihoods are threatened by the ESA out in the cold. Their concerns take a back seat to the swarms of environmental lawsuits that tumble onto the nation's dockets.

It is a sad irony that only by going to court can farmers, ranchers and timber operators get the Fish and Wildlife Service to do its job under the law.


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