What is the Endangered Species Act for?

Two main stated purposes:Conserve the ecosystems on which endangered

and threatened species depend; andConserve endangered and threatened species.

The old 1966 Endangered Species Act, which was passed to protect whooping cranes.

This is basically a “direct take” law – it prevented people from killing endangered species.

It did, however, grant a little bit of money to federal agencies to buy habitat for listed species.

The federal land agencies were directed to “protect habitat “insofar as practicable.”

Passed by Nixon, like a lot of the big environmental laws.

Section 9: You can’t “take” endangered species (this is broad and includes “harm” to damage to habitat essential to the species).

Section 4(d): The FWS can also issue rules preventing or regulating the “take” of threatened animals.

Section 7: Federal agencies have to consult with the FWS or NMFS prior to issuing a permit, making a funding decision, etc.

List/De-list species. (Big Issue #1 for today.)Concurrent with listing a species, designate

“critical habitat.” (Big Issue #2 for today.)

We don’t import endangered animals.There’s pretty limited protection for plants

for some reason.There are types of agreements to protect

activities on private property from disruption by the ESA, like Incidental Take Permits, Safe Harbor Agreements, Candidate Conservation Agreements with Assurances, and more!

Snail darter controversy!God squad!Tellico Dam!The ESA was amended to exempt the Snail

Darter from the ESA (it never went extinct and was downgraded to threatened).

Listing in 1990.Critical habitat designated in 1992 enveloped

lots of logging lands.Tree sitting!No recovery plan has been finalized.“Safe Harbor Plan” for the effected woods,

allowing logging with some restrictions.Owl is still around.

Many reasons.And in particular not in Colorado.Yes, it’s political (but that’s only part of the

story).But it’s also the story of how we practically

address endangered species issues, as well as issues with natural resources generally.

(Which is what I’m really talking to you about.)

Zapus hudsonius prebleiYes, it jumps (four feet).Drums its tail to communicate.Omnivore.Really not that exciting.The Zapus hudsonius is not endangered, but

rather is widespread.

It’s a subspecies of jumping mouse (see issue #1)

It lives along the Front Range of the Rockies in Colorado and Wyoming, which is one of the most rapidly devloping areas of the United States.

Plus it lives in nice riparian areas near creeks and other pleasant places where people also like to live.

First listed as a candidate species in 1991. Petition for listing as endangered or threatened by

Biodiversity Legal Foundation in 1994.Then listed as “threatened” in 1998 (Remember,

“endangered means at the brink of extinction; “threatened” means likely to be at the brink in the near future”).

Critical habitat established in 2003 (31,00 acres along 360 miles of streams in Colorado and Wyoming).

Rule 4(d) special rule for the mouse in 2004 exempting “rodent control activities, ongoing farming, landscaping, existing water uses [my work], weed control and ditch maintenance.”

A petition to de-list the mouse in 2003 because it wasn’t genetically distinct (actually really just a subpopulation of the Bear Lodge meadow jumping mouse).

And again in 2004.And again in 2005.And again in 2006.And again in 2007.In short, the FWS found that the mouse had

been classified as a subspecies based on a 1954 monograph by a professor emeritus at University of Arizona.

That never really happened.Developers and some cities cited $100 million in

losses due to listing. FWS hired an independent scientist from USGS to

conduct a genetic analysis of the mouse. He concluded it was a distinct subspecies (unfortunately making the FWS guy look like sort of a fool).

Days of testimony.Some handwringing about the meaning of the ESA

(should it protect silly subspecies of mice not particularly awesome or suspected of harboring the cure for cancer?)

It’s a valid subspecies “based upon the best commercial and scientific information available.”

Yay mouse!

The FWS removed critical habitat in Wyoming, but left the critical habitat in Colorado.

Why?Well, there was this Memo by Paul Clement…Allowed FWS to protect endangered species

only where they now live, not where they used to live…if they want.

The Solicitor withdrew the Memo in 2011, and the FWS reinstated Wyoming as critical habitat last month.

(This was due to, I think, the only litigation in the Preble’s listing, Center for Native Ecosystems v. Salazar, 09CV01463-AP-JLK (D. Colo. 2011).

Also, in 2010 the Colorado critical habitat was made larger by FWS.

Yay mouse!

Which means that many activities are exempt from the 4(d) rule (agriculture, water projects).

And development proceeds on review of construction (usually new buildings bigger than 400 sq. feet near the 100 year floodplain of a bunch of streams) by the FWS.

As far as I know the HCP process is ongoing for numerous communities that will encompass a large part of the critical habitat in Colorado.

There is also no “recovery plan” for the mouse, which should have been done a long time ago.

Also, FWS has issued “block clearance” for large areas where there are no Preble’s mice (including Denver, Colo. Springs, etc.)

I don’t know – it’s not extinct yet, anyway.Of the 1,900 listed species, 50 have been de-

listed, but only 22 due to recovery, and 23 have been down-listed from endangered to threatened.

It’s not exactly riveting stuff here – a little mouse got listed, and we’re wrangling on how much we’re going to let the mouse effect development.

It’s a long way from Tellico Dam.(Insert apocryphal story here).Yes, there’s politics, but that’s sort of the

boring, knee-jerk part.