Note: this article is part of a suite of feature articles in this issue about the Endangered Species Act and Habitat Protection Plans.
Backers of Habitat Conservation Plans have a simple answer for critics: If we don't cut deals with private landowners, we lose the habitat.
That's tough to swallow for some conservationists, since the Endangered Species Act is very specific: Section 9 of the law gives the federal government the power to prosecute landowners who destroy a species or the habitat that makes life possible for a species.
But a look at the act's 25-year enforcement record reveals that the federal government has failed to use its biggest stick. The Department of Justice and the two agencies responsible for enforcing the law - the U.S. Fish and Wildlife Service and the National Marine Fisheries Service - rarely prosecute people for directly killing a listed species. And when it comes to the illegal take of habitat, enforcement is virtually nil.
Law enforcement agents say they are stymied by limited resources, political pressure and the unwillingness of the U.S. Justice Department to act.
"If I say I want someone prosecuted for shooting a bald eagle, no problem," says David McMullen, director of law enforcement for the Fish and Wildlife Service region that includes West Coast states. "But if I want a person prosecuted for cutting near a bald eagle nest, the U.S. attorney is much less inclined to take the case. That's true even though the permanent harm that is done from harvesting too close to a bald eagle nest is far greater than the harm done by shooting a single eagle."
In bringing federal cases involving habitat destruction, federal attorneys are often forced to argue biology and ecology in the courtroom. If the defendant is a large corporation, and the issue is cutting trees, "I guarantee the company will show up with biologists saying the cutting didn't do any harm," McMullen says. "The general statement that has gone out from the U.S. attorney's office here is, "Don't bring me anything without a body." "
Since 1990, when the northern spotted owl was listed as a threatened species, the Department of Justice has not brought a single criminal prosecution against a company for destruction of owl habitat, and the Fish and Wildlife Service has failed to make its few civil actions stick. Only twice has the Interior Department gone to court to block logging that threatened owls.
In the first case, against Anderson and Middleton Logging Co. of Washington, charges were later dropped and the government bought the threatened stand of 1,000-year-old trees on the Olympic Peninsula for $3.5 million. A second case, involving logging in the Oregon Coast Range, is pending. In a case brought after the trees had fallen, the agency fined International Paper Co. $92,000 for illegally clearcutting 300 acres of critical owl habitat between 1991 and 1996. But in an out-of-court settlement, IP agreed, while admitting to no wrongdoing, to contribute $47,000 to The Nature Conservancy and another $25,000 to help fund a computer information base for tracking owls.
Endangered Species Act prosecutions and civil enforcement actions have been more frequent in California, where fast-growing areas such as the Los Angeles Basin and the San Francisco Bay Area have become crucibles of conflict over development. In 1990, a Vacaville, Calif., developer named Gentry Pierce was convicted of illegal take and fined $49,900 for disking a field at the edge of San Francisco Bay that was known to be occupied by the endangered salt marsh harvest mouse. But such cases are rare.
Paul Chang, a Fish and Wildlife Service agent who has worked in California, Nevada and Hawaii, says that beyond the difficulties of prosecution lies a resource problem. The agency's 240 agents simply can't cover endangered species violations across the entire United States, he says.
"We rely a lot on calls from private individuals who witness the taking near their home, (or from) employees upset with their employers' practices," says Chang.
And then there is politics. Many environmentalists believe the Fish and Wildlife Service is under immense pressure to look the other way at habitat destruction because addressing the problem would rile property-rights advocates and their allies in Congress who want to gut the Endangered Species Act.
"The agency is scared to death," says Tara Mueller, a lawyer with the Environmental Law Fund in Oakland, Calif., and that's why it has embraced HCPs. "They want to roll all of these species into HCPs so that they don't have to ever go back to the landowner and get more extractions," says Mueller. Such eagerness to negotiate, she says, when coupled with no legitimate enforcement threat, leads to weak plans that reflect the needs of the landowners more than the needs of the species.
"We are justifiably criticized for not adequately enforcing the ESA on private lands," admits Curt Smitch, an assistant director for Region 1 of the U.S. Fish and Wildlife Service, based in Portland. "I agree that section 10 (the ESA section authorizing HCPs) doesn't work unless you have section 9 there" (which prohibits take).
But Smitch says that even a rarely used stick is enough to give the agency the leverage it needs to craft HCPs that look out for species. "The threat of the Endangered Species Act is still felt by people out there," he says, "and that's why they are coming to the table."