Tags: Court | Ties | Economic | Impact | Endangered | Species | Areas

Court Ties Economic Impact to Endangered Species Areas

Friday, 18 May 2001 12:00 AM

The decision was hailed as a significant victory for people throughout the country who say their livelihoods and culture are being ruined and their communities destroyed through deliberate misuse of the ESA by environmental extremists.

The 10th Circuit Court of Appeals in Denver made the unanimous decision May 11 in a case involving the Southwestern Willow Flycatcher, a small bird that nests in areas along rivers and streams in seven Southwestern states.

The U.S. Fish and Wildlife Service determined in 1995 that the flycatcher was endangered, but it deferred a "critical habitat" designation so it would have more time to gather information. But environmentalists accused the FWS of dragging its feet.

In March 1997, the Tucson-based Southwest Center for Biological Diversity won a lawsuit in a U.S. District Court in Arizona that ordered the FWS to complete the flycatcher critical habitat designation in 120 days.

The designation of critical habitat along hundreds of miles of rivers and streams would mean that no cattle or other livestock could graze near those waterways, which are the very lifeblood of ranching in the arid Southwest.

Ranchers and farmers, who believe the real agenda of professional activist groups like the Southwest Center is to destroy their livelihood and way of life, were devastated. The potential negative economic impact on agricultural counties, especially in Arizona and New Mexico, was enormous.

A coalition of agriculture groups, led by the New Mexico Cattle Growers' Association, filed their own lawsuit in March of 1998, arguing that the flycatcher habitat designation should be invalidated because the FWS did not correctly consider the economic impact of its decision.

Up to this point, the FWS has been operating under a Catch-22 system.

The ESA says the decision to add a species to the endangered list must be based "solely on the basis of the best scientific and commercial data available." No consideration of the economic impact is required, or even allowed.

But the ESA does require the FWS to perform an economic analysis before it designates critical habitat for an endangered species.

In practice, the FWS usually lists the species first, without designating critical habitat. No economic analysis is done. Then, when critical habitat is designated later, the FWS assumes that if there is any economic impact, it already occurred when the species was listed; therefore, it is ignored.

Using this logic, the FWS determined that its flycatcher habitat designation resulted in no economic impact, since it would "result in no additional protection for the flycatcher nor have any additional economic effects beyond those that may have been caused by listing and by other statutes."

The Cattle Growers argued that this made no sense and they said it violated the intent of the ESA. They argued the Fish and Wildlife Service, when designating critical habitat, must perform a full economic impact assessment, including the economic impact that might have been caused by adding the species to the endangered list in the first place.

The 10th Circuit Court agreed. The court set aside the current critical habitat designation for the flycatcher and instructed the FWS to start over again with a new habitat designation, including a full economic impact assessment.

The court further opined, "The record in this case suggests that the impact will be immediate and the consequences could be disastrous."

In making its decision, the court stated, "The root of the problem lies in the FWS's long held policy position that critical habitat designations are unhelpful, duplicative, and unnecessary." The court noted that once a species has been added to the endangered list, the FWS typically puts off designating critical habitat for it "until forced to do so by court order."

Such court orders have resulted from the profusion of lawsuits being filed by groups like the Southwest Center. This is the kind of lawsuit for which President Bush has asked Congress to suspend funding for one year.

Most critics of the ESA - and these lawsuits - point to the fact that critical habitat designation has not helped recover even one endangered species. They believe that other, less economically destructive methods of species recovery are far more effective.

The flycatcher case is one of nearly a dozen similar suits in which New Mexico agriculture has been fighting for its life. A similar determination was made in a different case by a federal district court in Albuquerque several months ago, but this is the first time the issue has been determined at the appellate level.

"We hope we are creating a climate, through the courts, that will allow the custom and culture in New Mexico and the West to survive and hopefully even thrive again," said Jimmy R. Bason, president of the New Mexico Cattle Growers' Association.

"Livestock grazing has been a part of New Mexico for nearly 400 years. Ranching operations have provided not only habitat for wildlife but also water and supplemental feed throughout that time. We believe that it is because we are here caring for the land that species have survived."

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The decision was hailed as a significant victory for people throughout the country who say their livelihoods and culture are being ruined and their communities destroyed through deliberate misuse of the ESA by environmental extremists. The 10th Circuit Court of Appeals in...
Court,Ties,Economic,Impact,Endangered,Species,Areas
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2001-00-18
Friday, 18 May 2001 12:00 AM
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