ENDANGERED SPECIES ACT UNDER FIRE: CONTROVERSIES, SCIENCE, VALUES & THE LAW by NICOLE J. ROSMARINO B.A., Syracuse University, 1993 M.A., University of Colorado at Boulder, 1996 A thesis submitted to the Faculty of the Graduate School of the University of Colorado at Boulder in partial fulfillment of the requirement for the degree of Doctor of Philosophy Department of Political Science 2002 iii Rosmarino, Nicole J. (Ph.D.-Political Science) Endangered Species Act Under Fire: Controversies, Science, Values & the Law Dissertation directed by Professor Susan E. Clarke ABSTRACT My central purpose was to explore whether Congress intended to protect ecosystems and err on the side of species protection in the Endangered Species Act (ESA) and whether the Act’s legislative history transcends a simple economy versus environment dialectic. I examined the ESA’s legislative history from its passage in 1973 through key amendments in 1978, 1982, and 1988 by analyzing the values actors invoked, their rhetorical strategies, and their use of ecosystem and precautionary themes. I identified actors’ expressed values and preferred outcomes within congressional hearings and floor debate. I assessed their value usage using cross- tabulations and log likelihood ratios. The use of ecosystem protection and the precautionary approach was reviewed via content analysis. I analyzed these themes within conflict areas such as the Tellico Dam controversy in 1978 and wolf reintroduction in 1988. I considered general expressions regarding ecosystem protection and erring on the side of biodiversity protection given scientific uncertainty. I found that ecological values and ecosystem protection arguments were invoked consistently throughout the legislative history. Actors expressing ecological values were likely to support strengthening species wildlife protection. Utilitarian and moralistic arguments were also used by actors promoting a stronger ESA, thereby undermining an economics versus environment dichotomy. Results from the precautionary principle analysis were mixed. Although the precautionary principle was never explicitly promoted in the legislative history, a variety of actors advocated protecting species in the face of uncertainty. This stance was challenged by other participants, and the legislative outcomes remained equivocal. The findings of this congressional analysis were compared with the ESA’s implementation via case studies on the northern spotted owl (Strix occidentalis caurina) and the black-tailed prairie dog (Cynomys ludovicianus). These cases indicated that the ESA is not being administered using an ecosystem or precautionary approach. Despite opportunities for ecosystem-wide protection measures and early intervention before crisis, these opportunities were foregone. This is likely due to agency desires to avoid bold action. Specific suggestions are offered to improve policy by integrating ecosystem and precautionary protection into current conflicts surrounding species listings, reintroduction/translocation, critical habitat designation, recovery plans, consultation, habitat conservation plans, and prohibitions on take. Dedicated to: The passenger pigeon, once darkening the skies with its numbers, the pigeon flies no longer… …and to the prairie dog, that you not follow the same path. v ACKNOWLEDGMENTS This dissertation has been a labor of love. Involved most deeply and enduringly in that labor was Dr. Susan E. Clarke. Susan’s wisdom is matched only by her patience. I am very grateful for both traits. Dr. Richard P. Reading also helped tremendously and meticulously. I am thankful for his time, which is precious. I appreciate greatly the suggestions and support of the rest of my committee: Jay Tutchton, Esq., Dr. Roger Pielke, and Dr. Anne Costain. My work has also benefited from the support of my friends and family. My mother and father, Kathryn and John Rosmarino, have never ceased to encourage and assist me. My four sisters, Gina, Denise, Bettina, and Claudine (my twin), have in very different ways been part of my journey. Lauren McCain, Jen Melton, and Roberta Gibbons have been long-time friends and co- conspirators. Dr. Dan Ziskin, Dave Crawford, Andy Marcopoulous, Jacob Smith, Greg Litus, Julie Westland, and John Horning also deserve special thanks. A seeming reward to many years of toil, I have found a light at the end of the tunnel in Danny Robinson. My non-human companions – especially Brownie, Pookie, and the late Louisa – have helped to shape my moral regard toward the non-human world and, more importantly, provide me with limitless love. Finally, I wish to thank Jasper Carlton. Jasper’s tenacious defense of biodiversity has both taught and inspired me. I have him to thank for finding my place in the prairie. vi TABLE OF CONTENTS Introduction Page Chapter I: Introduction 1 Chapter II: Literature Survey 15 Research Design Chapter III: Theoretical Framework 75 Chapter IV: Methodology 122 Results & Discussion Chapter V: Valuational Coding 138 Chapter VI: Ecosystem Protection 169 Chapter VII: Precautionary Principle 250 Chapter VIII: Discussion of the ESA’s Legislative History 330 Chapter IX: FWS Implementation of the ESA 379 Conclusions Chapter X: Conclusions 445 Bibliography 460 Appendices Appendix A: Alternative Methods and Inter-Coder Reliability 483 Appendix B: Documents Comprising the Legislative History of the ESA 491 Appendix C: Overview of significant Legislative Changes to the ESA 495 Appendix D: Listing Priority Guidance 496 Appendix E: Sample Values Coding 497 vii TABLES Table Page 3.1 Preliminary map of Endangered Species Act controversies 81 3.2 Problem orientation schema 87 4.1 Scheme for coding participants in the ESA’s legislative history, 1973-1988 125 5.1 The use of different values by various types of speakers during the 1973 legislative history of the ESA 139 5.2 The use of different values by various types of speakers during the 1978 legislative history of the ESA 143 5.3 The use of different values by various types of speakers during the 1982 legislative history of the ESA 146 5.4 The use of different values by various types of speakers during the 1988 legislative history of the ESA 149 5.5 Correlations between usage of different values 162 7.1 General precautionary arguments in the ESA’s 1973 legislative history 260 8.1 Scope values and strategies used by actors in ESA discourse across different decision processes in 1973 334 8.2 Scope values and strategies used by actors in ESA discourse across different decision processes in 1978 336 8.3 Scope values and strategies used by actors in ESA discourse across different decision processes in 1982 338 8.4 Scope values and strategies used by actors in ESA discourse across different decision processes in 1988 340 8.5 FWS Endangered Species Program Appropriations, 1985-1987 370 8.6 FWS Endangered Species Program Appropriations, 1999-2001 371 9.1 Summary of Acre Reductions Between Original May 6 Proposal, August 13 Revised Proposal, and Final Critical Habitat Designation viii for the Northern Spotted Owl 401 9.2 Approximate Acreage of Final Critical Habitat Units (CHUs) for the Northern Spotted Owl (Rounded to the Nearest Thousand Acres) 402 A.1 Results of Inter-coder Reliability Test 487 ix FIGURES Figure Page 5.1 Invocation of different values across the ESA's 1973-1988 legislative history 152 5.2 Variation in use of economic, ecologistic, and utilitarian/ protective values across forum in the ESA's 1973-1988 legislative history 155 5.3 Variation in use of moralistic and scientistic values according to forum in the ESA's 1973-1988 legislative history 157 5.4 Number of cases coded across different venues in the ESA's legislative history from 1973-1988 158 5.5 Comparison of values invoked and outcomes sought by congressional participants in the ESA's 1973-1988 legislative history 161 5.6 Number of speakers for each legislative year across the ESA's legislative history 164 CHAPTER I INTRODUCTION I assess the Endangered Species Act’s (ESA’s) legislative history in light of two broadly accepted concepts in environmental policy: ecosystem management and the precautionary principle. Both concepts have been considered relative to endangered species policy in the U.S., but we lack a clear picture of how these concepts have been discussed throughout the ESA’s 28-year history. We therefore cannot yet make assertions about the intent of Congress to include or exclude these concepts from endangered species protection. Nor do we have a clear picture of which values have been most prominent in ESA discourse or the strategies actors have employed in promoting certain values over others. The current political turmoil enveloping the ESA contrasts with its near- unanimous passage in 1973. Proponents and opponents of endangered species protection alike make the case for overhauling endangered species policy in the United States. Proponents of endangered species conservation claim the Act does not go far enough and is not adequately implemented to prevent species extinction and aid species recovery (e.g., Rohlf 1991; Houck 1993; Bechtold 1999). Opponents of increased endangered species protection argue that the Act is draconian, repressive, and a threat to the U.S. economy (e.g., Mann and Plummer 1992; 1995; Sugg 1994). This heated political debate is not restricted to the extreme margins of political discourse. The popular print, radio, and television media often depicts the ESA as 2 highly controversial. The controversy is manifest in the halls of Congress and routinely reaches the Oval Office and the U.S. Supreme Court. The ESA debate is part of a broader conflict regarding the economic costs of protecting the environment in the U.S. Due to its potential for outcomes that protect endangered species with no regard to impacts on industry, the ESA has been in the crossfire of a clash between conservationists promoting enhanced environmental protection and industry interests seeking reduced interference with economic growth (e.g., Meltz 1994; Mann and Plummer 1995; Innes et al. 1998). The simple depiction of economics pitted against environmental protection fails to clarify which specific values political actors marshal to promote or hinder species protection.