Futility, they say, is doing the same thing over and over and expecting different results. That fairly well characterizes the fused-up minds of many lawmakers regarding the Endangered Species Act (ESA). Rather than enact meaningful reform to minimize the use of faulty science that's plagued the 29-year-old law, lawmakers continue to bury the fissures behind more layers of legislative window dressing.

Consider two recent incidents.

  • First, the revelation that government officials had planted three separate false hair samples of the endangered Canadian lynx on rubbing posts being used to identify lynx habitat in Washington state. Part of an ongoing lynx survey involving 16 states and 57 national forests, it could have forced the closure of these areas to all commercial, recreational and agricultural uses (see February BEEF, page 76).

  • A National Academy of Science study released in early February found that the science the U.S. Fish & Wildlife Service cited to shut down the water supply last summer to 1,400 farm families in the Klamath Basin was flawed. In fact, the decision to divert the use of all water in the project to three species of endangered fish might have even been counter-productive to the health of at least one of those species.

These two episodes further underscore the joke that the ESA has become in the hands of land-control zealots and lawmakers too timid to stand up for what's fair and right. Little wonder Western folks are suspicious when the government comes to call. Remember former Clinton Interior Secretary Bruce Babbitt's stated mission? “We must control the water, and then we control the West.”

The problem with such a high-profile regulatory blunder as the Klamath Basin is that it paints the debate in stark, easier-to-understand terms for the public — fish versus families. So what's the answer from lawmakers? Build more bureaucracy and enact another federal program.

Section 1240R of the 2002 farm bill, still in Senate-House conference at press time, proposes to give all producers cost-sharing help to become more water efficient. This would cover practices like converting to less water-intensive crops, implementing measures to increase irrigation efficiency and conserve water, etc. Producers also can sell or lease their water rights.

Some of the water saved through this program, to be administered by the U.S. secretary of agriculture, will revert to the state, and some to the conserving producer. The state can then sell or lease its share to pay the federal cost-sharing bill.

Born out of the Klamath Basin situation, it sounds good on the surface, but Scott Klundt, associate director of federal lands for the National Cattlemen's Beef Association, calls it “a bad afterthought.”

“It was never debated. There was never any hearing on it. This needs more study and thought,” he adds.

“This is a way for producers to get some money, but they're giving up water rights for it or planting a crop that may not be as high a net value as they're used to,” Klundt says. “Most of all, you're bringing the federal government into an area that has been traditionally managed by the state.”

While conservation is all well and good, Klundt asks, how enthusiastic will states be to get in bed with federal oversight? Plus, the measure doesn't address the central problem at the heart of many ESA issues — shaky, non-peer-reviewed science.

A bill (S.1912) proposed in early February by Sen. Gordon Smith (R-OR), on the other hand, will address this core problem. It would require greater weight to be given to field-tested and scientifically reviewed data when making decisions under the ESA.

Called the Sound Science for Endangered Species Decision-Making Act of 2002, the measure would establish a mandatory independent scientific review requirement for all ESA listing and de-listing proposals, as well as biological opinions, to ensure the use of sound science. It also would require the interior secretary to solicit and obtain data from property owners to assist in developing recovery plans, including recovery goals.

It sounds like something any fair-minded, reasoned lawmaker should get behind. Producers and producer groups need to keep an eye on this measure and exert pressure where it's needed to put science and fairness in the driver's seat of the ESA.