Deciding When A Species Is Endangered

It's not enough to be rare. To be endangered in Maine, you have to convince the biologists that at least a few of you actually live here - and then you have to pass political muster.

By Nancy Griffin
Habitat Vol. 16 No. 3 Summer 1999

Getting onto the endangered species list is a little like applying for membership in an exclusive club, say the experts: Definite criteria must be met, but it helps to be known and liked.

"We get a lot of frivolous petitions. Any citizen can petition the government to list a species," said Paul Nickerson, longtime chief of endangered species for the northeast region of the U.S. Fish & Wildlife Service in Hadley, Massachusetts. "There are people who want elk listed, just because they don't want the elk hunted. The key thing is having backup data."

The spotted owl achieved icon status when the need to protect its habitat halted logging of the ancient forests in the Pacific Northwest. The bird's name may forever be hurled as an epithet by those who oppose listing a species if protecting it interferes with jobs and industry. But large, hairy, sharp-toothed predators make the biggest news and generate the most emotional heat when they are offered for membership in the club. Crying wolf, for instance, will guarantee howls from ranchers and sportsmen.

Despite the predictable outcry, experts say predators may be the easiest species to move onto the list under the Endangered Species Act. "Remember, eagles are predators. So are peregrine falcons," said Nickerson. The eagle has been listed since 1978, and both raptors have made remarkable recoveries. "People single out the'emotional predators,' such as wolves and grizzlies." Emotions work both ways, however. The predators that arouse fear and loathing in livestock farmers may also inspire awe and devotion in others. The wolf even has its own lobbying group. Less threatening species, such as bugs and plants, often arouse fewer emotions passion can translate into apathy.

Recovery of any species is not guaranteed by listing, which is merely the first step in a lengthy process that requires careful documentation, public participation and a good plan of action. But it's a complicated first step. In fact, it's many steps, beginning with the receipt of petitions showing the decline of a species and active threats to its well-being. After reviewing the petition for ninety days, the U.S. Fish & Wildlife Service either rejects it (if it has no substance due to conflicting data or a lack of data) or conducts a status review during the next nine months. This extensive investigation results either in rejection or in the writing of a proposed rule to add the species to the list in the states where it exists. The Fish & Wildlife Service accepts public comment for sixty to 120 days, depending on "how complex the critter is," says Nickerson. Sometime within the following year, the Fish & Wildlife Service conducts a public hearing. Finally, the species is either placed on the list or the proposed rule is withdrawn, with a careful, public explanation of why the species does not meet the need for listing.

This all amounts to a process fraught with many pitfalls, Nickerson admits. "Groups will try to influence elected officials to oppose" certain species, he says. For example, recent attempts to list the Atlantic salmon as endangered led to a bombardment of letters to Maine's congressional delegation warning of potentially dire effects. "They were told it would shut down Washington County. Most of the allegations are untrue." Similar dire warnings flowed when the bald eagle was listed, even though the most successful eagle restoration efforts in Maine took place on private land, with no negative economic impact, Nickerson says. "It's the attitude:'Don't confuse me with facts. The facts may be counter to the political myth I'm trying to spread.' A lot of it comes from unfounded fears."

The listing process species may be in danger of extinction "also identifies those that don't need to be on the list," explains Alan Hutchinson, a biologist who formerly headed the endangered species division of the Maine Department of Inland Fisheries & Wildlife. "It made clear state policy on which ones needed to be protected. It virtually eliminated uncertainty. Without that clarity, the permitting process would have been prolonged. Around the country, the root of the problems that arise lies in whether a species in endangered or not, and whether it should be on the list." The uncertainty created by arguing causes both sides to be "paralyzed by indecision."

One example of an unquestionably rare species that hasn't yet made it onto the list is the Canada lynx. A northern predator for which Maine is now be the southernmost range, the lynx was proposed for the federal list endangered species list last year, but was turned down "not because it's a predator," says U.S. Fish & Wildlife Service endangered species chief Paul Nickerson, "but because the data are uncertain."

During a federal hearing in September, conservationists relied on anecdotal evidence of lynx sightings in Maine, estimating the rare cat's numbers at between twenty and five hundred. Facts were as scarce as the beasts themselves, so the U.S. Fish & Wildlife Service declined to list the species. "There's a debate on whether Maine is a significant habitat, since it's a small component of the range," Nickerson explains. "But once attention gets focused on a species, we find more of them. Now we have an adult female wearing a radio collar, accompanied by two kittens."

"We had not enough information to do one or the other," says Hutchinson. But the lynx qualified for a relatively new category of "special concern," which combines a few older categories: special concern that information is insufficient now, but biologists believe when the facts are known, they will show the species is endangered. "Now there's a pretty substantial study going on to get the information on the lynx."

"The process focuses more attention on the critter and we learn more about its life cycle," adds Nickerson. "At the end of this five-year study, we'll have lots of information."

But as Hutchinson warns, "Listing does not automatically set in motion other actions. It simply identifies the fact that a species is at high risk of disappearing. It's the second step - determining what can or should be done - that's where the interesting questions come in."

Hutchinson, who now serves as executive director of the Forest Society of Maine, a non-profit organization working with owners of large timberland tracts to set up conservation easements, believes that the fears that spur opposition to listing come from the uncertainty of what that second step will be. "This confuses the issue. There are a lot of unknowns and a lot of folklore floating around about what listing will do to landowners and business."

"There are some kernels of truth" which fuel opposition, he adds. "But a lot is not founded in real fact. We try to refocus the debate on what is working." Using the bald eagle as an example, Hutchinson cites "example after example of making it work resource agencies. All over the country, success stories are happening."

Listing invertebrates three years ago gave rise to predictions of "all kinds of things" that would go wrong in Maine, Hutchinson continues. But "not a single problem has arisen from it. In fact, problems have been avoided. There would have been parties fishing, and probably ending up in court arguing about if the ones they took are really endangered."

The chances of an endangered species' protection causing grief for landowners were changed in June, when a Federal Register notice announced a revision to the controversial "No Surprises" policy under the federal Endangered Species Act. Previously, this policy assured landowners who participate in a Habitat Conservation Plan that they would not have to modify the plan or take additional measures to protect listed species even if the plan was found to be contributing to a species' decline. The new policy states that the U.S. Fish & Wildlife Service may revoke a Habitat Conservation Plan if it jeopardizes listed species. Some observers have suggested that the move was a response to a pending lawsuit challenging the "No Surprises" policy - in effect, an admission that the policy was faulty.

The road to listing a species contains three stumbling blocks, says Mark McCollough, who heads the Maine Inland Fish & Wildlife's Endangered Species Group: "biological, political and social."

Biological factors should be straightforward, but can be complicated by a lack of credible information. For example, suggests McCollough, consider Maine's black tern: "Birdwatchers have always known about the scarcity of black terns. But we missed it in 1986 when we listed the roseate and least terns as endangered." Students from Nokomis High School took on the black tern as a special project in the early 1990s, collected information about the bird, then made a pitch for its protection to the Maine Legislature in 1997. "There were far fewer black terns. They were much more endangered than the others," says McCollough.

The reason that the students made their pitch to lawmakers biologists years ago, the Maine Legislature granted itself power of final approval over the state's endangered list. Before then, Maine Inland Fish & Wildlife Department staff researched the species recommended for protection and made their own determination. State legislative oversight "added another step," says Hutchinson. "So in terms of workload, we added work, added uncertainty to the decision-making and approval process."

McCollough adds that the legislature may federally listed species off the state list, such as wolves and cougars. "There are two parts to the Endangered Species Act," he explains. One part protects the individual animal from being killed or harassed, and the second part protects its habitat. So the federally listed wolf may not be killed in Maine, because it is protected by the federal act and the state's general wildlife laws. But state listing is more apt to result in protection for the animal's habitat. "Good examples in Maine are the bald eagle, the piping plover and the roseate tern."

The legislature's decision to take over the final approval process was triggered nearly five years ago when the Maine Inland Fish & Wildlife Department first listed invertebrates bugs. The resulting outcry led to final list approval moving into lawmakers' hands. Invertebrates don't have the emotional appeal of wolves or birds, says McCollough, "even though most of our wildlife is invertebrate. We have fifteen thousand known species in Maine, and there may be ten times that many." Only one other state, Montana, requires legislative approval of its endangered species list. The first time the state list came before lawmakers, newspapers and broadcast media told tales of elected officials laughing and poking fun at the idea of protecting species such as the Katahdin arctic, a tiny butterfly found only on Mount Katahdin.

"We heard fears, uncertainty and ridicule," says Hutchinson. "But biology prevailed. The [legislative] committee did a remarkable job. It was all new to them. They worked at it, listened, gave us the opportunity to explain, and in the end, approved them all. They wanted a report two years later. It was done, with no horror stories. The process is just quietly working away. It's so successful that no one's paying any attention to it. If we got a glitch in the system, we'd have a problem and everyone would hear about it. The real news here is that we're three years into it and it's working like charm. All huge problems have been avoided. That's the measure of success."

The social arena is where biological data meet the fears of the public, especially landowners who believe the use of their land use will be severely curtailed if it is found to be the habitat of an endangered species. "When development takes place in Maine, sometimes people will try to stop a project because of a rare moth, or something," McCollough explains. "Without categorizing and researching all the moths to know which are endangered, we can have confusion. There are social concerns about listing species and having too many on the list. It's a simplistic notion that if a species is on the land, the owner won't be able to do anything with it. Probably the best example of why that isn't true is Maine Audubon's work with the piping plover. We let thousands of people use beaches in Maine every summer and still manage to protect the plover there."

Nancy Griffin of Thomaston, a former newspaper reporter and editor, is a freelance writer who primarily covers fisheries and natural resource issues.