Peak & Prairie
October / November 1999
Earthlaw Gives Endangered Species in California a Reprieve
by Nancy Butler
EARTHLAW, Development Director
I am pleased to report that we have achieved a victory that will help us protect the San Francisco Bay and Delta. We have forced the Fish and Wildlife Service to protect the Split Tail, a minnow that needs the freshwater of the Bay and Delta to survive.
In addition, the judge buried one of FWS's most used excuses for failing to protect imperiled wildlife. To understand why this is important requires a bit of explanation.
There are lots of things that make our job tough.
In most of our cases, we are suing the government--EPA, the Fish and Wildlife Service, or the Forest Service. There's a good reason for this. The federal agencies that are supposed to protect our rivers, air, and forests--are often the very folks turning a blind eye to pollution, ignoring imperiled species, and selling off the trees. Sometimes the agencies are simply doing stupid things; more often politicians are hammering them, and they find it easier just to go along.
The law expressly favors the government. Strange as it sounds, the law typically requires courts to accept even the most boneheaded actions of an agency. Unless the agency's action directly violates the law, or the action is "arbitrary or capricious," the agency wins. To make it even harder, the law generally requires the court to consider only the evidence submitted by the government.
Now, always having the law on its side has not had a good impact on the government. Rather than focusing on following the law, many agencies have focused on concocting excuses about why they cannot comply with the law.
One of the worst offenders is the Fish and Wildlife Service--the Endangered Species Act makes FWS responsible for protecting endangered species. For several years now, FWS has not wanted to list any new species despite the law. There's a reason for this. Although ignoring the law can jeopardize the survival of a species, protecting species against the whims of a politician can jeopardize the survival of a bureaucrat's career.
FWS has put together two excuses for ignoring species in peril. FWS often tells the court that it cannot list any new endangered species, because there's no funding to do so. (FWS typically forgets to tell the Court the whole truth--that it has actually gone to Congress to ask for less funding to protect endangered species.)
FWS also often tells courts that FWS has its own rules, and the agency is faithfully following them. What FWS doesn't tell the court is that those rules--which it jiggered up itself--often conflict with the Endangered Species Act which was passed by Congress and signed into law by the President. According to FWS, its rules are more important than the Endangered Species Act enacted by Congress.
Fortunately, in our San Francisco Bay case, Judge Gonzales saw through these excuses and ordered FWS to follow the law. The FWS listed the Split Tail as threatened. She called FWS's excuses "noncognizable," which might be a nice way of saying "ridiculous."
I am pleased that we dealt FWS a setback, but I am very pleased we protected the Split Tail. Pollution in the bay, urbanization of the Bay's shores and wetlands, and water diversions essentially wiped out the Split Tail. The best way to preserve the Split Tail is probably to preserve the Bay and the Delta and their associated wetlands. The converse is also true: the best way to preserve the Bay and the Delta may be to protect the Split Tail.
Until we sued, the Army Corps of Engineers sometimes welcomed the arrival of Spring in California’s Sierra Mountains by drowning an endangered songbird, the Southwestern Willow Flycatcher. I am pleased to report that our suit stopped this practice.
The Corps killed the Southwestern Willow Flycatcher and occasionally its young by submerging the South Fork Wildlife Area, near Isabella Dam and Reservoir. With only 300-500 pairs of songbirds left on Earth, this Wildlife Area is crucial for them to breed, build their nests, and raise their young. The Corps filled the reservoir for several weeks in the Spring. If the Corps filled the reservoir after the young Flycatchers hatched, it would drown them and reduce the number of a species already nearing on the decline.
Up until 1993, the flooding was sad but not devastating. The Corps flooded the Wildlife Area only occasionally and only seldomly after the Flycatchers had nested.
In 1993, to send more water to the palm trees, fountains, and swimming pools of California's urban areas, the Corps started flooding the Wildlife Area every year. They also started leaving it submerged longer and longer.
Biologists from the U.S. Fish & Wildlife Service concluded that these new annual floods jeopardized the continued existence of the Flycatcher. Willows can survive an occasional flood, but they cannot live where they are underwater for the better part of every year. And routinely drowning endangered species does not help their survival.
The Fish and Wildlife Service biologists proposed a solution--stop flooding the Flycatcher's habitat for two years and buy replacement land nearby. To get the Service off of its back, the Corps promised to buy the needed land, but refused to stop the flooding. The Corps never bought any land and continued its annual flooding and drowning.
We sued under the Endangered Species Act to protect the Flycatcher and stop the Corps. The court found that the Corp had acted illegally and ordered them to stop the flooding. We are pleased that, as a result of our lawsuit, the Southwestern Willow Flycatcher can finally nest in peace.
To contact Nancy Butler, write to the University of Denver-Forbes House, 1714 Poplar Street, Denver, CO 80220-1878, or call (303) 871-6039, or email
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