DuBois column: Endangered Species, umbrella species, expanded habitat

Are we about to see an expansion of the authority or impact of the Endangered Species Act? If so, how will this occur?

First let’s take a look at how we got where we are today.

In the early history of our country, the states were sovereign over wildlife within their borders. As late as 1896 the Supreme Court held that states have the, “undoubted authority to control the taking and use of that which belonged to no one in particular but was common to all.” (Geer v. Connecticut). Since then we have witnessed the steady passing of this authority from the states to the federal government, culminating in the passage of the Endangered Species Act.

The feds had no role in the management of wildlife until Congress passed the Lacey Act in 1900, which began the regulation of interstate commerce of wildlife. The first federal wildlife refuge was designated in 1903, and in 1918 the Migratory Bird Treaty Act passed which implemented a treaty with Canada.

In 1966 the Endangered Species Preservation Act passed which called for a list of endangered species and directed federal agencies to protect threatened species “where practicable” and prevented the “taking” of a species within a federal refuge. It did not regulate private actions that took place outside a federal refuge.

1969 brought us the Endangered Species Conservation Act which banned the importation of anything made from an endangered species anywhere in the world and called for an international convention to prevent extensions.

Almost immediately, President Nixon declared the 1969 law inadequate and requested additional federal authority to protect endangered species. Congress held a series of hearings in the House and Senate, resulting in the Endangered Species Act of 1973 which was signed into law by Nixon. 

Interestingly, the authority to appropriate funds for the purpose of enforcing the ESA expired in 1992. The act itself did not expire in 1992 as some people think. What did expire was Congressional authority to appropriate funds. That seems simple, no money no enforcement. Sorry, but that is not the way the D.C. Deep Thinkers operate. Both the Senate and House found “special” rules where they could appropriate your money even though their authority to do so had expired. And that is what they have continued to do, each and every fiscal year since 1992.

Well then, if Congress can’t even reach agreement to reauthorize appropriations for the Act, surely we won’t see Congressional action to expand the scope or impact of the law. That is correct. I believe the expansion of the act will come administratively, either by agency action or by dictate of the courts.

Let us take a look at two recently announced academic studies. 

According to investigators at the University of Queensland, the protection of Australia’s endangered species could be improved by a factor of seven if “umbrella species” were prioritized for protection. Umbrella species are species which when preserved, indirectly protect many other plant and animal species. The study’s senior author, University of Queensland and the Nature Conservancy’s Professor Hugh Possingham states, “Now is precisely the time where governments need to get their investment in nature to be as efficient as possible” and “With a species extinction crisis…we need better methods to efficiently prioritize investment of resources in species recovery.” In other words, if you really want to protect endangered species, the best way to do so is to protect the more expansive list of “umbrella” species.

Then we have recent research from the University of Washington and Evergreen State College which analyzes whether accounting for climate change in conservation planning can protect future biodiversity better than current approaches. The authors found that many species of animals and plants likely will need to migrate under climate change, and that conservation efforts will also need to shift to be effective. 

"We are going to need to protect different places if we want to protect biodiversity in the future," said lead author Joshua Lawler, a UW professor in the School of Environmental and Forest Sciences. "We need to think about where species will go as the climate changes, and then plan for that. The business-as-usual planning process isn't going to work."

Watch for government-funded studies to develop lists of “umbrella” species and mapping their whereabouts. No doubt we will also see government grants to development computer models that predict where species will migrate as a result of climate change. How long will it be before an agency determines that to protect a species under authority of the Act it must also protect these umbrella species? For similar reasons they will determine that not only the critical habitat of an endangered species must be protected, but also the habitat where the endangered species will migrate to as a result of climate change. And since “umbrella” species will also migrate, we must also protect that future habitat. 

As you can imagine, all of this will result in a huge expansion of federal authority over land and water.

How good of a prognosticator am I? I hope, terrible.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

This column originally appeared in the March issues of The New Mexico Stockman and The Livestock Market Digest.

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