Jonathan Wood: Threatened rule improves incentives to recover endangered species

Biden administration considering rules that would make it more difficult to protect prairie dogs and other species.

(Rick Bowmer | AP photo) In this Aug. 6, 2015, photo, a prairie dog barks at it's new colony after being trucked some 25 miles away from Cedar City, Utah.

Several years ago, visitors to southwestern Utah would encounter unusual old-west style “wanted” posters. Instead of a bandit, the “villain” in this poster was the Utah prairie dog, a species whose status and regulation under the federal Endangered Species Act had been a source of frustration and conflict for decades.

Unfortunately, a June 4th announcement from the U.S. Fish and Wildlife Service suggests that such conflicts will soon return to communities across the country, to the detriment of states, landowners and endangered species. The agency stated that it will undo every Endangered Species Act reform completed by the prior administration, including a rule that tailors protections for threatened species.

If finalized, repealing this threatened species rule would be a significant step backward for federal-state cooperation and species recovery.

Once endangered, the Utah prairie dog population gradually recovered from a low of about 3,000 in 1972 to approximately 84,000 in 2016. As the population rebounded, federal regulation of the species paradoxically became stricter, in effect penalizing the state, communities and landowners for contributing to the species’ recovery.

When a federal court held the federal regulation was unconstitutional in 2014, the state of Utah had an opportunity to try a different approach, one that relied on cooperation rather than conflict. Under Utah’s plan, state biologists worked with communities and landowners to address conflicts in residential areas or sensitive places like playgrounds, cemeteries and airports by relocating prairie dogs to public and private conservation lands. Under the federal regulation, such reasonable recovery efforts were illegal without costly and time-consuming federal approvals.

The population continued to increase at an impressive rate under state management — and on lands that could provide a permanent home — while conflict over the species receded.

In 2017, the state wildlife official who led Utah’s effort was selected to run the U.S. Fish and Wildlife Service, the federal agency behind this conflict. Under his management, the agency proposed a significant change to the way it regulates threatened species like the Utah prairie dog, with the goal of empowering other states, communities, and landowners to find similar win-win solutions.

Previously, the Fish and Wildlife Service treated all endangered and threatened species the same, even though threatened species face relatively remote risks compared to endangered species and the statute explicitly sets different approaches to regulating these categories. Decades of experience had shown the folly of this approach.

Because the same burdensome regulations applied even if a species’ status improved from endangered to threatened, private landowners had little incentive to invest money, time and energy in recovery efforts. As most endangered and threatened species depend on private land for habitat, this translated into a recovery rate of only 3%.

Under Fish and Wildlife Service’s new approach, formalized in 2019, instead of automatically applying the strictest regulations available, the agency would tailor regulations to the needs of threatened species. A 2018 report for the Property and Environmental Research Center explained how this change reduces conflict, encourages cooperation, and better aligns the incentives of states and landowners with the interests of rare species.

The logic is simple: Relaxing federal regulations as species recover rewards states and landowners for successful recovery actions. Likewise, the possibility of stricter regulations should species decline and become endangered discourages actions that could harm species.

This tailored approach could deescalate conflict over many species, including Montana’s grizzly bears and Wisconsin’s gray wolves. Efforts to delist these recovered populations have been stymied by political fights and litigation, both exacerbated by the high stakes created by the Fish and Wildlife Service’s prior all-or-nothing approach.

If, instead, federal control gradually receded as species recovered, allowing states to take more and more responsibility over time, we could reduce the stakes of a delisting decision and deescalate political and legal conflict.

Perhaps surprisingly, the policy underlying the tailored approach did not originate with the Trump administration. The shift toward tailored rules for threatened species began during the Obama administration, which recognized the benefits of better incentives to recover species.

Therefore, reversing the threatened species rule would not only upend a reform that provides better incentives for states and landowners to recover rare species — a key principle underlying the Biden administration’s “American the Beautiful” initiative. It would also mean politics triumphing over common sense and almost certainly more litigation.

Ultimately, we should not evaluate Endangered Species Act rules simply on whether they are more or less stringent, but on whether they improve the incentives for landowners and states to recover endangered species.

The 2019 threatened species rule improves incentives. With it under attack, it is critical that states, communities, landowners, and conservationists come to its defense — and that cooler heads at the Fish and Wildlife Service ultimately prevail.

Jonathan Wood | Pacific Legal Foundation

Jonathan Wood is a Property and Environmental Research Center research fellow and senior attorney at Pacific Legal Foundation.