Lawyer: Species act needs changes
October 28, 2005
Douglas Timber Operators got
an updated look at the Endangered Species Act from
Pacific Legal Foundation managing attorney Russell
Brooks at their Thursday morning breakfast
Brooks of the Bellevue, Wash.-based group,
discussed lawsuits his organization has defended
and won over the past three years that were
brought on by environmental groups that claimed
certain parties were in violation of the ESA,
enacted in 1973.
"If you stick things out and fight things out, you
can win," Brooks told the gathering.
When the ESA was enacted it was designed to
preserve species, but many private landowners
contend that many of its regulations are outdated
and in some circumstances, far too overreaching.
While many landowners have successfully defended
themselves against species act violations, others
currently seek to loosen restrictions that they
say the law never intended. Brooks demonstrated
these misunderstandings by discussing a handful of
In the 2001 Alsea Valley Alliance v. Evans case,
the Pacific Foundation, a 32-year-old nonprofit
dedicated to property owners' rights in
Sacramento, Calif., argued in the 9th Circuit
Court of Appeals that regulators must count wild
salmon and hatchery salmon together under the
species act. The decision took Oregon Coast coho
salmon off the ESA listing.
"It's a very simple matter: all the same species
living in the same streams," Brooks said. "We
believe a species is a species, a fish a fish."
Such contemporary decisions will help improve the
economic value of natural resources -- such as
fishing, both commercial and recreational --
That same year, PLF also had all of Oregon's
shorelines and streams listed as "critical
habitat" scaled back by at least 80 percent.
Brooks said the decision may spur his organization
to pursue the same legal battle in the Columbia
River, where regulations for fish habitat
interfere with the capacity of hydroelectric dams.
The species act, which Brooks describes as
"broken," lists animals as threatened or
endangered on a five-year status. But Brooks said
that "they list the species and don't go back" to
consider whether the species has recovered. In
California the federal government is currently
reviewing 200 species listed under ESA, "so that's
In late September the House of Representatives
passed a major overhaul of the law. There are
indications that the overhaul may be too drastic
for the Senate to pass, and Brooks called a lot of
the ESA reform "very controversial."
Tim Vredenburg asked at the meeting what
environmental groups propose as recovery plans for
a recovering species in the reforms.
Brooks said "they want to set it back to the way
it was before Lewis and Clark rolled through," but
that they should remember to consider human beings
Javier Goirigolzarri of Resource Management
Services in Roseburg asked Brooks how current laws
affect the spraying of fire retardant in forests.
Brooks said a court decision in Montana requires
an "extremely expensive and exhaustive" permit
process for private landowners to spray their
lands with retardant because of potential harm to
The listing of the marbled murrelet on the ESA in
Western Oregon has affected the timber industry in
recent years. But a recent status review of the
bird has determined that is not a subspecies in
Oregon and it thrives as a whole from Northern
California to Alaska.
Coos County recently filed a 60-day notice with
the federal government to delist the bird from the
Endangered Species Act.
"The marbled murrelet is going to be on the front
burner pretty quick," Bob Ragon, executive
director of the Douglas Timber Operators, said of
its status in Douglas County.