Why the Endangered Species Act Is Broken, and How to Fix It

While a college student in the early 1990s at Northwestern, Peter Alagona became fascinated with the red-hot controversies swirling endangered species, from the California condor and desert tortoise to the northern spotted owl and black-footed ferret. As environmentalists and animal lovers pushed to do whatever it took to save them, there was strong resistance from the ranchers, loggers, and other communities threatened by the rigorous federal laws required to do so.

“I was watching this stuff unfold on a daily basis, wondering what the hell was going on, why it was so contentious, and why we couldn't figure it out,” recalls Alagona, now a professor of environmental history at the University of California-Santa Barbara. “It seemed like a zero sum game,” said Alagona, who saw few winners in such a convoluted process, “and, frankly, it was pretty confusing.”

Twenty years of investigation later, Alagona finally has some answers, and shares them in his first book, After the Grizzly: Endangered Species and the Politics of Place in California, due out this month just in time for the 40th anniversary of the Endangered Species Act and for Endangered Species Day on May 17.  Blending his cross-disciplinary career in history, environmental science and geography, the book uses the Golden State as a lens to detail the history of America's quest to save rare species, with a special focus on the aforementioned condor and tortoise as well as the delta smelt and San Joaquin kit fox.

Among other discoveries, Alagona reveals that, while the act has saved certain birds and beasts from utter extinction, it hasn't really helped many of the listed animals recover to sustainable population levels, which was the supposed mission of the 1973 law. Below, he discusses that and other findings, and helps chart a course for a more effective ESA in the decades to come.

Forty years on, how would you grade the Endangered Species Act (ESA)?

There are a lot of pundits out there who will tell you that it has either been a disaster or a huge success. The truth is that it has really been a mixed bag to date, and “to date” is a really short time. For species that took centuries to decline, 40 years is probably not enough time to recover.

But based on the data that’s out there right now, the take home message is that the Endangered Species Act has done a pretty good job, a really good job actually, of preventing extinctions. But it’s done a really poor job promoting the recovery of species that are on the list. 

Your book critiques the prevailing strategy of tying species recovery to habitat preservation, the idea of, “Let’s just set some land aside and nature will take care of itself.”

Or that some wildlife manager out there will restore it to its natural state. I don’t want to caricature people—it’s not as simple as that—but that’s the kind of ideology that we’ve developed, and it started a long time ago.

Well, it has been an effective tool for preserving land.

It’s been very effective, so then the question becomes which is which: Are you saving species to preserve the land, or the land to preserve the species?

But you could safely say that preserving the land has prevented extinctions, right?

It’s really helped. But the problem is that, if you look at the recoveries that have occurred, all of the species that have recovered have recovered due to relatively simple problems.

Like removing DDT from their ecosystem (Congress banned it for agricultural uses in 1972)?

DDT is the perfect example, or the introduction of an exotic species, or overhunting. With the American alligator, hunters were just taking thousands of them to make them into boots. Stop shooting alligators, and they come back like crazy. Now they’re everywhere again.

It’s much harder for species that have lost large portions of their habitat to come back even if you set aside areas with the intention of restoring and preserving habitat. It’s never really the same, because the land is changing even within the reserves, the climate is changing, all this other sort of stuff is going on.

Is it a too-far-gone situation, or are their ways to improve the recovery of these species?

There's probably a spectrum. There are some animals that, if we expanded their range and our imagination with what we could do to establish partnerships with private landowners, we could really, really help. There are others that you could maybe help somewhat, but it’s going to be a pretty tough go. And then there are other species that seem like, for the long-term, they’re probably going to be really dependent on a pretty intensive set of management strategies to keep them afloat. 

Your book talks about the lack of flexibility allowed by the ESA, about how experimental but potentially successful recovery techniques are few and far between. Why is that sort of adaptive management hard to implement?

The problem is that the idea of adaptive management came along in the late 1970s and 1980s, which was after all of the major environmental laws were passed. So the concerns that drove the legislation of the 1960s and ’70s aren’t the same concerns that people are dealing with now.

One of the big concerns of the ESA and other laws of that time was just to develop more transparency around the process, since there weren't any established protocols then. When lawmakers are looking for transparency, flexibility is not the first thing on their mind—it might even be the last thing on their mind. What they wanted was a step-wise process that’s deliberate, that’s plotting, where they can actually watch what local, state, and federal agencies are doing in real time and, if the agencies are making decisions that are arbitrary and capricious, they can be taken to federal court. But one person’s arbitrary and capricious is another person’s flexible and adaptive management.

And with endangered species, you don’t want to do an experiment that kills animals. Think of the bad press!

There was a condor chick killed in the early ’80s when wildlife biologists were studying it, and that was a big scandal. So those things have happened before, and people are really wary of that, but it might be the only way to move forward.

Why doesn’t just saving habitat work out?

Some of the species that have had the largest areas preserved are still declining. The two best-known examples of that are the desert tortoise and the northern spotted owl. They are declining for different reasons—the regions are different, the economies are really different, the ecosystems are really different—but those are two vertebrate species that have had enormous areas set aside on their behalf.

The spotted owl wasn’t doing so well anyway for a number of reasons, but then another problem arose: the bard owl, which is indigenous to the Eastern U.S. but has been spreading across the continent because of all the land use changes. It’s closely related to the spotted owl, but it’s bigger, more aggressive and more adaptable. It breeds with them, it eats them, it kills their young, it usurps their habitat.

So now, we had these enormous political controversies. The government set aside all these areas, and people still feel like it took away their livelihoods and their communities. The ESA promised to bring back the species and others, and now this other owl comes in and messes everything up. The conservationists who go into this in the first place got into it because they wanted to save owls, and now they’re being faced with the idea of shooting one owl to protect another.

Is your book the first to point this out?

No. What I would say is that my book is the first to explain how we got into this situation from a historical perspective. How did we get to this predicament in the first place? It turns out that it goes back a long time. It’s kind of illuminating to realize that this didn’t start with the ESA in 1973. Americans  have been thinking about this stuff and trying to figure it out for a long time [since at least the 1870s]. There’s a reason scientists make the assumptions we do, and that’s because the assumptions have been built into the way we’ve thought about things for a century.

And they’re partially true.

They’re partially true, but we also are learning that the world is more complicated.

So if you had all the marbles, what’s your silver bullet solution?

There are a couple things we could do to the ESA to improve it. One is to create better arrangements so that landowners can be enrolled in the endangered species recovery programs.

From what I’ve seen over the years, despite the private property rights rhetoric, many landowners seem happy to help with species recovery and are actively involved.

There are a lot of great examples of this, such as the Paramount Farming Company's development of artificial dens for kit foxes in the San Joaquin Valley in 2002. It seems like every example is treated like a unique exception, and yet if you add them all together, there’s a trend there. So how can we take those examples and build them more into the policy in meaningful ways?

What else?

Another thing is that the U.S. Fish & Wildlife Service has become bogged down with this critical habitat process. The ESA says that, when you list a species, you have to draw a map of its critical habitat—there’s a lot of debate about whether that is for its survival or its recovery—and, within that area, any project that will have a significant impact has to be reviewed.

That’s turned out to be hugely controversial, so there are people who have come up with ideas on how to make that more efficient and more transparent. So normalizing the critical habitat process would go a long way.

We also need better arrangements with the states. The ESA says that the states and federal government “should cooperate wherever practicable,” but it doesn’t say what that means. So how can you entice state fish and game agencies? They often have more credibility with the local populations, because they’re the ones that make sure there are ducks in the pond so you can go hunting next year. If we could do a better job with that, it would go a ways toward fixing things.

And then there’s flexibility.

The final thing is this issue of adaptive management. There are parts of the ESA where you could improve on the adaptive management portions without violating ESA procedures. For example, there’s an “experimental population” clause in the ESA that says you can dedicate a population experimental. If you do that, it should be a population that if it tanks, it won’t kill the species, but if you have an idea that a certain set of management strategies might work, you should have the flexibility to try new things without the hammer coming down in the form of the federal court.

To let that happen, we’d have to be ready and prepared for more failure, right?

But failure can be a success if you learn something from it—as long as safeguards are in place so those conducting such experiments are not going to wipe out a species in an experiment.

Matt Kettmann is the senior editor of The Santa Barbara Independent, where he has covered endangered species issues for more than a dozen years.