‘Jeopardy’ opinions go the way of the dodo

  • Southwestern willow flycatcher


Note: This article is a sidebar to this issue's feature story, "Sound science goes sour."

In the 1990s, a small greenish-gray bird with a yellow belly became the mascot for conservationists who were trying to keep cattle out of Southwestern rivers and streams (HCN, 9/15/97: Feds take on a sneaky species). When the U.S. Fish and Wildlife Service listed the southwestern willow flycatcher as endangered in 1997, ranchers were angry, but most acknowledged that scientists had used hard data to sort out a politically sensitive issue.

“It was hard for people to argue with that data (for the flycatcher),” says Rob Marshall, the Fish and Wildlife Service biologist who worked to list the bird. “But that time (the mid-1990s) precipitated the end of jeopardy opinions.” The agency only issues jeopardy opinions when a project could drive a species to extinction, and in this case, the Fish and Wildlife Service’s decision forced ranchers to pull cattle off riparian areas on national forests in the Southwest.

According to Marshall, who now works for The Nature Conservancy, high-profile endangered species decisions — those that heighten conflict between conservationists and industry — also heighten tensions between Fish and Wildlife and other federal agencies. “With the Rio Grande silvery minnow and the spotted owl, it did start to look like the Fish and Wildlife Service made the (rest of the) Department of the Interior and the Department of Agriculture look bad,” he says. “Fish and Wildlife was protecting species, but were doing it in a way that the agencies hated them.”

The number of jeopardy opinions peaked in the mid-1990s. Last year, the agency issued just 53 jeopardy decisions, and critics say even those did little to protect endangered species. Built into a jeopardy opinion are “takes” — the legally allowable number of animals an agency can inadvertently kill during the course of a project. But Fish and Wildlife doesn’t track its takes across different projects, and some say this prevents the agency from truly protecting endangered species.

The Pacific Environmental Advocacy Center at Lewis and Clark Law School in Portland, Ore., has sued Fish and Wildlife for not tracking takes of northern spotted owls in the Northwest. Because the agency doesn’t know many owls have been “taken,” says Advocacy Center director Dan Rohlf, there’s no way it can know how many are left. “There’s a tremendous amount of slop in the system,” he says. “Without some system to track the status of a species, you can’t issue a reasonable jeopardy or no-jeopardy opinion.”

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