Environmental Defense

It's a real pleasure to be here with you all today, and I appreciate being invited.

As a lawyer by training, I've spent much of my career trying to use the law to protect endangered species—those rare plants and animals that have suffered the most as a result of man's rather ingenious ability to manipulate and destroy their habitats.

I've learned an incredible amount over the years about all the various creatures that I've worked to protect and about the various threats that they face. I’ve found that being a lawyer with only a modest amount of science background can be very fascinating.

I've developed a very profound appreciation of the land and the myriad intricate functions it provides to thousands and thousands of different organisms. I am awed, both by the resilience of the land in responding to and recovering from the huge array of abuses that we heap upon it and, paradoxically, by its fragility and the extent to which humans have been able to alter the landscape—permanently, in some cases—and destroy the ecosystems that occur there.

I work for an environmental organization that spends considerable time, energy, and resources advocating for change. We're dedicated to protecting the rights to clean air and clean water, protecting the land from pesticides, and working for stronger government programs to protect rare species.

I believe that the work we do is very important, and I'm proud of the progress that we have made. A number of once-rare species, like the brown pelican, the osprey, and the bald eagle, have recovered from near-extinction.

Many rivers and streams are cleaner and clearer than they were 25 years ago, and there are actually more forests in the eastern United States today than there were a century ago. But despite these gains, it's become increasingly clear to me and to my colleagues that at least with respect to the protection of biodiversity, we are not going to get there through traditional advocacy alone.

The reason is that in order to protect biodiversity, we're going to have to do more than just influence the government to pass stronger laws. Strong laws are important, but they're just not going to get us there.

We have to fundamentally change, I believe, the way in which people think about land, nature, and all the animals and plants within it. We have to promote what Aldo Leopold referred to as the land ethic. In Leopold's words, a land ethic changes the role of Homo sapiens from a conqueror of the land community to a plain member and citizen of it.

I'm going to talk about three things during this presentation. First, I want to give you some information about endangered species in the United States and here in Texas that will give you the context of my work at Environmental Defense.

Second, I want to describe my organization's approach to protecting endangered species. I think we’ve developed some rather innovative ideas that I enjoy talking about.

Finally, I'll propose some steps that I believe are necessary if we’re going to make progress across the state and across the nation in conserving endangered species on a large scale.

So let me start with some background information that will underscore some of the points Professor Schmidly made in his excellent overview of land patterns and land use in Texas.

There is, of course, little doubt that humans have already dramatically reconfigured the American landscape. Today more than 85 percent of the virgin forests in the United States have been logged at one time or another. Of the tallgrass prairies that once existed in the United States, 90 percent have been either plowed under or paved over. And 98 percent of the nation's rivers and streams have been dammed, diverted, or otherwise developed in some form or fashion.

In the process of all this modification, hundreds and hundreds of species have already vanished. Many others have so severely declined that they are considered endangered, and many are just much less plentiful today than they were historically.

The Nature Conservancy estimates that about 1 percent of the original species in the United States have gone extinct, 16 percent are in what they consider to be immediate danger of extinction or elimination, and another 15 percent are considered vulnerable.

Based on the Nature Conservancy’s terminology, about one-third of the original historic species occurring in the United States are now a conservation concern. The overwhelming cause of the decline of these species is habitat destruction.

Despite these losses, however, the United States still has a very impressive amount of biodiversity left. There are more than 100,000 native species—freshwater and terrestrial—that have been identified in the United States. That includes about 16,000 ferns, conifers, and flowering plants, 2,500 vertebrates, and 75,000 insects. Those are only the species groups that have actually been counted. The actual number of species in this country is probably several times greater than that.

So there is a huge amount of biodiversity here. There's clearly still a lot left to protect. Of the 100,000 species that have been identified, the Fish and Wildlife Service has listed as threatened or endangered a little over 1,200 species.

Once a species is listed as threatened or endangered by the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, it deserves some special protections. Federal agencies are required to take extra precautions not to harm the species or damage its habitat in undertaking federal actions. Private individuals are also prohibited from doing anything to harm the species or its habitat.

Now, several years ago two of my colleagues at Environmental Defense, Michael Bean and David Wilcove, reviewed the Fish and Wildlife Service's information and the various scientific literature to find out how the agency was doing with protecting endangered species through the federal act.

They arrived at several key conclusions. First, they found that more than one-third of the endangered species in the United States occur exclusively on non-federal land—that is, they occur only on private lands or state-owned lands, not in national parks, national refuges, or other federal properties.

That statistic alone tells you that it's simply impossible to work to protect endangered species in the United States by focusing only on federal lands. Here in Texas that's a moot question anyway. Because so much of our land is privately owned, we of course have to work with private landowners if we are to come anywhere close to protecting the 91 listed species in Texas

Their second finding was that those endangered species occurring only on private lands are declining more than species occurring only on federal lands. Indeed, the contrast is pretty dramatic.

According to Fish and Wildlife Service estimates, 64 percent of the endangered species that occur only on federal lands are considered to be either stable or improving in status. That's not a bad statistic. In contrast, only 19 percent of the species that occur only on private lands are considered to be stable or improving in status.

So a much larger number of species on private lands are declining. There are also a number of species on private lands whose status is unknown for obvious reasons: surveys haven’t been done on private lands.

Now, what this information tells us about the federal Endangered Species Act and the other statutes that Congress has passed to protect rare species is that they're simply not working very well on private lands. There are several reasons for this.

First, the Fish and Wildlife Service doesn't have the necessary resources—neither the manpower nor the investigators nor the money—to aggressively enforce the act against private individuals. Second, it's very difficult to make a case.

As a lawyer, I have not been involved in Endangered Species Act prosecutions, but I am knowledgeable about all the case law, and I know it is very difficult to make a case against an individual that harm to an endangered species has occurred.

However, in my view, the main reason that the Endangered Species Act is not working effectively on private lands is that it simply contains no incentives for private landowners to manage their land in a proactive way.

It's full of prohibitions, full of sticks, full of hammers, full of thou-shalt-nots, but it contains nothing in the way of positive incentives to encourage good habitat management. Now, because many endangered species rely on active management—whether it's prescribed fire or control of alien species like fire ants or zebra mussels—it's not enough to simply refrain from doing harm anyway.

There's a real need for landowners to actively manage their land in a way that will restore, protect, and keep habitats healthy for endangered species. We simply must have the commitment of private landowners to ensure the survival of endangered species in this country.

Now, it's not easy to work on endangered species issues on private lands. Some of the most publicized clashes that we've seen over the last couple of decades have occurred on private property over property rights and potential restrictions on private land use because of endangered species.

Here in Texas in 1990, when the golden-cheeked warbler was listed as an endangered species in the Hill Country, there were literally hundreds of ranchers who were very upset with the Fish and Wildlife Service for that listing. They were worried about being told they couldn't manage for cedar on their property anymore or they couldn't graze in the way they were accustomed to doing.

On the East Coast, the endangered red-cockaded woodpecker has caused problems for years, although some of the conflicts have dissipated recently. But it was for many years considered to be the spotted owl of the East, and timber lot owners with beautiful old-growth stands of longleaf pine were cutting down those stands in order to avoid what they called infestation of red-cockaded woodpeckers.

Then of course the clash between farmers and the government over water rights and irrigated water up in the Klamath River Basin has been in the news recently and is of great note. So clearly an innovative approach is needed.

Over the last five to six years, Environmental Defense and other organizations have been actively involved in looking for new ways of working with private landowners, seeking new approaches to break through some of the ill will that exists between private landowners and the government on the issue of endangered species.

Three years ago Environmental Defense established what we call a landowner conservation assistance program in the Hill Country. It was set up with a rather modest investment of funds from the Meadows Foundation in Dallas, which was the key to helping us get started.

Three years later we have a waiting list of landowners who are anxious to work with us in the Hill Country. What we do is similar to the activities that Bill DeBuys described in New Mexico. We are providing small grants and technical assistance to landowners who are interested in managing, in this case, for two endangered songbirds—the golden-cheeked warbler and the black-capped vireo.

We pay for things like prescribed fire, oak shinnery management, cedar removal, replanting of oak trees, construction of fences on people's properties so they can use rotational grazing for moving cows out of an area during the nesting season. The degree of interest that we've witnessed has just been overwhelming.

At this point about 35 landowners are participating in the program, and this amounts to about 75,000 acres of land. The only limiting factor is our staff's ability to go out and do site assessments and write management plans for people.

We've learned a lot from this experience, and I want to share some of the things that we think are the most important take-home lessons from this. First, there is a definite demand for information from landowners, especially among these newer landowners.

  Andy Sansom talked about this new generation of landowners in Texas who are buying up pieces of family ranches and willing to pay more money for them because they don't depend on the land for revenue and support.

In our case, that's been a blessing because these folks don’t need to graze a property heavily in order to make a living. They have the resources and the capacity to step back a bit and enjoy it—either its hunting value, for white-tailed deer or game birds, or just its esthetic value.

So they're interested in working with us and eager for information. They want to learn how to manage the land in a way that will restore endangered species habitat and protect it. And they're very interested in what the landscape would have looked like historically.

Second, we've found that a comparatively small investment of funds can have a dramatic impact. It so happens that the black-capped vireo is fairly easy to manage for. It's not terribly expensive to do a prescribed burn or even to top off cedar or oak shinneries to recreate the sort of brushy habitat that the vireo likes.

By a nice coincidence, white-tailed deer like the same type of habitat that black-capped vireos like. So for these species in particular, the possibility for success stories is there.

Furthermore, you get an enormous bang for the buck in terms of generating good will among landowners. The Texas Parks and Wildlife Department has seen the same thing with their technical assistance program.

By being on the land and being available to landowners, you touch first one person and then his neighbors and then that person's neighbors. It becomes a sort of ever-widening circle, if you will, of landowners interested in this sort of species management.

The next step for us is to expand this effort further. We have already formed some very exciting partnerships with groups like the Central Texas Cattlemen's Association, the Texas Parks and Wildlife Department, the U.S. Fish and Wildlife Service, and the Nature Conservancy. We're interested in partnering with more organizations and trying to established this program in other parts of the state and, ultimately, other parts of the country. I think there is enormous potential for this kind of work.

Environmental Defense has just received a grant from the Houston Endowment, and I'm excited to say that we're going to have the capacity to expand this program to South Texas for work on the ocelot and the jaguarundi along the Texas-Mexico border. I think that's an incredibly exciting opportunity for us. We're also working with some landowners east of Austin in Bastrop County on habitat restorations for the Houston toad.

So on a large scale I believe that the only way to promote Leopold's land ethic is to educate and inform people and to look for the confluence of interests between private landowners and conservationists.

But ultimately we must get across to people the overall ethic and the necessity of respecting all the components of nature. Our experience suggests that there is reason to be optimistic about the possibility of managing for endangered species, especially on rural lands.

The problems associated with urban development are much tougher, however. You can't expect a landowner who has been offered a great sum of money by a real estate developer to turn down such a sale in favor of the rather small incentive that we're able to offer.

But that's where we get back to ethics and the role that advocates have to play, all of us who care about these species and are interested in protecting them on a large scale.

Let me close with this thought: it’s imperative that we use all our creative powers to encourage growth and development in ways that are consistent with endangered species management and that will protect the rarest among them.