Common sense goal for ESA regs
By PATRICIA R. MCCOY Idaho Staff Writer
BOISE — It took a little time for the natural
resource industry to start using the courts to
overcome some of the more onerous restrictions
imposed on them by the Endangered Species Act and
regulations imposed in its name.
It’s also taken time for some of those lawsuits to
succeed. Today, slowly but surely, some common
sense is being inserted into the equation, says
Russell C. Brooks.
Brooks, managing attorney for the Pacific Legal
Foundation’s Northwest center, Seattle, can cite
numerous examples of court decisions that are
helping ranchers, farmers and others affected by
various environmental rules, regulations and past
“The environmentalists have gone so far out on the
limb that judges are starting to rein in some of
their more extreme demands. More and more members
of Congress are getting fed up with the various
prohibitions and restrictions coming out of
ESA-related lawsuits,” he said during a recent
visit to Boise.
“More and more people are being affected, and
voicing concerns. Members of Congress in both
political parties are hearing from constituents
who feel the pain. The court of public opinion is
very strong. As the pain increases, so does the
reaction,” he said.
Even so, Brooks doesn’t expect to see Congress
make any substantial, meaningful changes in the
ESA itself. Reforms are more likely to be
piecemeal and gradual, he said.
“Several bills proposing ESA reform are in various
stages in Congress right now. None go far enough,
but they probably go as far as their sponsors
think they can. I fear none will pass. Each time
some major reforms are proposed, they’re blocked.
There are too many people out there who fear even
the most minor changes, and not enough members of
Congress who will vote for those bills.
Eventually, though, it will happen,” the attorney
“You see polls all the time indicating that people
support the ESA, but they don’t like the way it’s
enforced. A larger portion of the public is
beginning to question the equality of restrictions
that protect animals, fish and plants without
consideration for human beings,” he said.
Litigation is chipping away at ESA-related stone,
and gradually building a wall around water rights,
property rights, and other points of
Constitutional law. The resulting rulings are
starting to have an impact, Brooks said.
“Eventually we hope to get some of these issues
before the U.S. Supreme Court. It’s been a long
time since an ESA-related case reached the court,
and a lot of legal issues out there worthy of its
attention,” he said.
Brooks was lead council for the Alsea Valley
Alliance case. A Ninth Circuit Court of Appeals
ruling in that case last February requires
agencies to count both hatchery and wild stock
when determining if salmon populations should
receive ESA protection.
That ruling resulted in delisting the Southern
Oregon Coastal Coho. Relisting is proposed, but
the Alsea Valley decision paved the way to
challenge the listing of several other salmon
stocks. Pacific Legal Foundation has already filed
a notice of intent to sue to force those
delistings, he said.
“The federal agencies thought they found a
loophole in the Alsea Valley decision They’re
trying to list all salmon, exempting hatchery fish
from takings protection. We’re seeing record
returns of salmon this year. I’m looking forward
to hearing them explain in court how they can
justify a listing when there are thousands and
thousands of fish out there,” Brooks said.
“It will be six or seven months before the
agencies put a final policy in place, and before
the proposed relistings become final. If the
agencies don’t fix what’s wrong in accordance with
the court rulings, they’ll have no excuse when we
file our complaint,” he said.
Brooks discussed four ESA-related Idaho cases in
various phases of litigation during his visit
here. They include one filed by the Idaho
Conservation League claiming the state is
violating the ESA by taking listed species when
Idaho authorized timber harvest and road
construction on state lands in the Priest Lake
area of North Idaho. His office is preparing to
intervene in that case and several more, he said.
Pat McCoy is based in Boise. Her e-mail address is