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ESA reform: Holsinger lays out areas for ESA changes

Written by Saige Albert

Cheyenne – While the Endangered Species Act (ESA) may have started with the idea of conserving majestic and grand species, Kent Holsinger of Holsinger Law in Denver, Colo. noted that its implications reach much farther today.

“The ESA was passed in 1973 and signed by President Nixon with visions of grizzly bears and bald eagles,” explained Holsinger. “I don’t think anyone at the time would have envisioned the scope of the issues that we face these days with sage grouse, Preble’s mice, burying beetles, bladder pods and more.”

He noted that the ESA is one of the most powerful environmental laws created, with influence driven by the court system, rather than by actual rulemaking.

“There is probably more litigation in the ESA than virtually any other federal law,” Holsinger continued. “Anyone can petition a species for listing as either threatened or endangered.”

However, with challenges in handling ESA today, Holsinger said that there are opportunities to improve the act.

“Why do we care about the ESA?” Holsinger asked during the mid-March 2017 CLE Water and Energy Law Conference in Cheyenne. “Litigation has led us to the most recent decisions on species.”

Litigation

“Litigation abuse with the ESA is out of control,” Holsinger said. “Groups file petitions, and then they file suit because the agency hasn’t considered the petitions fast enough. Then, there’s a settlement, and the groups collect attorney’s fees. Then, they do it all over again.”

Holsinger emphasized, “There’s a terrible incentive to litigate.”

“The usual suspects when it comes to ESA litigation are Wild Earth Guardians and Center for Biological Diversity,” he said. “We tallied federal court records since electronic filings were available in 1990, and these groups have filed over 1,500 lawsuits.”

Multiple species

When species are considered for listing, Holsinger noted that it is also a problem to consider the number of species that are contained in one petition.

One petition during the Obama administration asked to  list757 species at a time.

“Today, there are more listed species in the ESA than ever before in history,” Holsinger said. “Over 1,500 species are listed today. For many years, that hovered around 1,100.”

He added, “The Obama administration really ramped up listings.”

He advocated that species should be considered with one petition at a time, not 300, 600 or 1,000 species at a time.

“We need to consider species one at a time,” he said. “Petitions for 300 or 400 species at a time are an abuse of the process.”

Science

With the increase in the number of listings, Holsinger said that science is imperative, but transparency is an important piece of the listing decisions.

“We found problems with the sage grouse science,” he said. “I found it incredibly ironic that President Obama was posting that this was the most transparent administration in history, but we had to file a lawsuit under the Freedom of Information Act on what the agencies are supposed to publish already.”

He noted that the U.S. Geological Survey is often the most secretive of all agencies, which is improper for the science arm of the Department of the Interior.

Sub-species

Another problem with ESA, explained Holsinger, is the listing of sub-species.

“We’re not listing the grizzly bear or bald eagle,” he said. “We’re listing one of the 13 subspecies of mouse, snail or beetle.”

Holsinger sees potential improvements in the ESA by listing only full species rather than subspecies.

“If we can’t tell something apart without dissecting it or looking at its chromosomes, it shouldn’t be listed,” he said. “We should look at decisions with on-the-ground science and focus on conservation work, rather than litigation.”

States’ rights

Another area of infringement within ESA is a lack of state input on wildlife management decisions, described Holsinger.

As an example, the Mexican gray wolf is a significant species. The District Court of New Mexico said U.S. Fish and Wildlife Service (FWS) couldn’t release wolves without a state permit, but FWS reintroduced the wolf without consultation.

“The state wildlife agency sued, and we’re waiting right now to see what the 10th Circuit Court does,” Holsinger said.

Focus on recovery

While listing species that are truly endangered or threatened is important, Holsinger also noted that recovery programs are also important.

“There hasn’t been a great deal of interest in recovery programs, and they are largely interpreted to be voluntary,” Holsinger said. “They don’t carry the force and affect of the law.”

He continued, “We’ve got new policies on collecting information on experimental populations and recovery planning guidance.”

With a new administration in place, Holsinger sees potential, but he notes that there are going to be large-scale efforts that will have to be in place.

“As we’ve seen, the media is relentlessly in crisis mode over everything that occurs, but there’s good things ahead,” Holsinger said. “We have a tremendous amount of work to do.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..