UPDATEEndangeredincluding a Reprint Species of theTechnical latest USFWSBulletin May/June 1997 School of Natural Resources and Environment Vol. 14 Nos. 5&6 THE UNIVERSITY OF MICHIGAN In this Issue 3 Legislative Mandates of the Endangered SpeciesAct and a Plea for Consistent Use of Technical Terms Jay O'Laughlin Public Opinion on Species and Endangered Species Conservation Brian Czech and Paul R. Krausman 11 Oregon Embarks on Bold Recovery Plan for Pacific Salmon: Should it be Used as an Alternative to an ESA Listing? Glen Spain 17 Conservation Spotlight: Desert Fish Mike Demlong 19 News From Zoos Insert: MayIJune U.S. Fish and Wildlife Endangered Species Bulletin Species LT?CFITE A forum for information exchange on Letter to the Editor endangered species issues MayIJune 1997 Vol. 14 Nos. 5&6 M. Elsbeth McPhee ............................Editor Katherine Irvine .................Associate Editor 1 wanted to express my concern with Kimberley Walley's David Bidwell ..................Editorial Assistant article in the Opinion section of the Oct Nov issue which was Gideon Lachman .......Web Page Coordinator / ,,, subscription Coordinator critical of Habitat Conservation Plans being developed in con- Terv Root ......................... Faculty Advisor cert with the Administration's "No Surprised" policy for private Adviso~~~~~d landowners. In an effort to illustrate her concerns, she used RichrdBlock Plum Creek's recently completed Cascades HCP in Washington ,,,,Indianapolis Zoo as an example of "inadequate protection" for affected species. National Biological Service, Ms. Walley inaccurately described the protection offered in Oregon State University the HCP as limited to harvest deferrals on 4,300 acres of the International Consultant in 170,000 acre area covered under the plan. In reality, 38 separate Environment and Development mitigation measures are described in the plan to address the Chevron Ecological Services Hal Salwasser biological needs of 285 species included in the HCP approved by U.S. Forest Service, the U.S. Fish and Wildlife Service and National Marine Fisheries Boone and Crockett club Service. These include harvest restrictions to retain nesting and forA,,rJ,. ,Ehge, dispersal habitat in specific areas totaling 5,600 acres which are species up~~TEwelcomadcles, editorial comments, and announcements related to currently used by resident spotted owls and retention of a swesp,,on, ForfunhervJarmation minimum of 8% of Plum Creek ownership in nesting, roosting conkttheeditor. and foraging habitat for spotted owls. Moreover, riparian s~sc~ptio,,lnfomtion,. neEndangrred buffers on fish-bearing streams are 8 times the width required species ~PDATEispubli~hedsixaper year, plus occasional special issues, by the under current state forest practices rules. The HCP establishes school ofNamalResources and Environment requirements for marbled murrelet surveys, goshawk nest site at TheUivenityofMichigan. Annuairmare $23 for regular subscriptions, and $18 for protection, road and habitat management for grizzly bears and smdents md ,,,,, (dd, forposhge wolves, and watershed analysis to address fish and forest hy- outsidetheus). Sendcheckormoney order (payable to The University of Michigan) to: drology concerns. The plan also specifies targets to maintain a Endangered Species UPDATE diversity of forest vertebrate species. A significant element of school of Natural Resources and Environment the plan is a research and monitoring program which will The University of Michigan provide both compliance and biological data necessary to evalu- Ann Arbor. MI 48109-1 115 (313) 763-3243 ate the plan's success and modify it in the future if necessary. E-mail: [email protected] Ms. Walley is entitled to her opinions about the content and http://~~~,~mi~h.ed~~-esupdate quality of habitat conservation plans being prepared by private of Pacific landowners in cooperation with the Departments of Interior and salmon. ~~nstitutefor ~isheries~esources. Commerce. It seems reasonable to expect that she would at least ,views in fhe read and accurately describe the plans she chooses to criticize. species UPDATE~~Ynot necessarily reflect those of the U.S. Fish and Wildlife Service or The University of Michigan. Lorin Hicks, Ph.D. Production of this issue was made possible in Director, Fish and Wildlife Resources part by sumfrom the Boone and Crocked Plum Creek Timber Company, L.P. club, Chevron ~o~poration,U.S. FWS Division of Endangered Species Region 3, and Walt Seattle, Washington hneyWorld Company. printed on recycled paper 2 EndangeredSpecies UPDATE Vol. 14 Nos. 5&6 1997 Legislative Mandates of the Endangered Species Act and a Plea for Consistent Use of Technical Terms Jay O'Laughlin Introduction not describing a legislative man- agency responsibilities. I use ESA- The Endangered Species Act date. "Diversity" is a term absent defined technical terms (see (ESA) is a public policy for pro- from the ESA, however, "destruc- Sidebar), and separate legislative tecting, and improving the status tion" is used in section 7 in refer- mandates from agency viewpoints, of, plants and animals whose con- ence to critical habitat. The ESA's administrative regulations, judicial tinued existence is imperiled. ESA imperfect blend of biological sci- interpretations, and court rulings. policy consists of a legislative stat- ence and law (Rohlf 1991) makes ute, administrative regulations and understanding its mandates any- Section 7 protection guidelines, and judicial rulings. thing but clear. The statute mandates that The ESA statute includes hortatory The ESA's mandates can be federal agencies neither jeopar- declarations such as the purpose explained by analyzing the three -dize listed species nor adversely of the Act (ESA 8 2), definitions key parts of the statutory design- modify their critical habitat. In (ESA 8 3), and mandates for ex- identification, protection, and re- her brief discussion of section 7, ecutive agencies. These mandates covery (O'Laughlin and Cook Clark (1996) failed to mention include interagency cooperation 1995). First, Clark (1996) clearly the two protection provisions of (ESA 8 7) and substantive out- explained identification, which is the ESA's "Interagency Coop- comes, such as a list of protected the section 4 process for listing eration": jeopardy protection and species and their recovery plans threatened or endangered species. habitat protection. (ESA 8 4) and protection against Second, she described protection (ESA 9). (See Sidebar for as the "primary objective" of the Jeopardy protection definitions of underlined terms.) ESA program (Clark 1996). How- Clarkstated that the Interior Sec- Understanding the goals of the ever, she inexplicably omitted sec- retary, acting through the FWS, ESA statute and the Act's imple- tion 7 jeopardy and critical habitat "overseesthe protection and conser- mentation mechanisms can en- protections, while section 9 &&g vation of fish, wildlife, and plants hance species conservation pro- protection was adequately ex- found to be in serious jeopardyf' grams by improving communica- plained. Third, although Clarkcon- (Clark 1996). This use of jeopardy tion among interested parties. siders recovery to be the "ultimate adds confusion and vagueness by Describing ESA ends and means purpose" of the Act (Clark 1996), inconsistentlyusing a technical term. with consistent and precise use of she substituted some interpreta- "Seriously imperiled" would have ESA-defined terms facilitates dis- tions for mandates. For example, been a more appropriate phrase, es- cussion of and improvements to Clark said the FWS oversees re- pecially when Clark used "imper- implementation issues. covery activities, but failed to men- iled" in a similar context in her con- An Endangered Species UP- tion that section 4(f) mandates the cluding paragraph. Absent from the DATE article by a U.S. Fish and FWS to develop and implement ESA statute or regulations, "imper- Wildlife Service (FWS) official recovery plans. Finally, although iled" is convenient for avoiding re- (Clark 1996) reviewing the ESA's they are not mandates, Clark (1996) petitive use of "threatened and en- . legislative mandates did only a also described how responsibili- dangered." partial job, in my opinion. Per- ties for marine animals are split Jeovardy is a vague standard sonal or agency viewpoints some- between agencies-these assign- used for protecting listed species. times obscured the underlying ments have far-reaching implica- Section 7 provides statutory pro- statutory requirements and sev- tions deserving more discussion tection by mandating that any ac- eral terms were misused. For ex- than was provided. tion by a federal agency may not ample, by stating that the ESA is a This article complements jeovardize the continued existence "clear public policy.. .to prevent Clark's article on southern sea ot- of a listed species. Through the the destruction of nature's diver- ter (Enhydra lutris nereis) conser- consultation process defined in sec- sity," Clark (1996) was offering vation by focusing on section 7 tion 7, the FWS or the NMFS must an interpretation of ESA policy, protection, recovery mandates, and provide a written statement, called Vol. 14 Nos. 5&6 1997 Endangeredspecies UPDA 7E 3 a biological opinion, if a federal action may ~eopardizea species. Sidebar -- Essential Endangered Species Act Definitions " Jeo~ardize"is not defined in the ESA statute, but is in FWS regula- Section 3 of the ESA provides definitions of the terms used tions (see Sidebar). There are no