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The Endangered Species Act (ESA) of 1973 is intended to preserve threatened or endangered species by identifying such species and their critical habitat.  A recovery plan is subsequently developed, and after implementing that recovery plan, it is hoped the species will recover and be delisted.    Determining that a species is threatened or endangered is based solely upon  “the best scientific and commercial data available”.   The designation of critical habitat is based upon, “the best scientific data available and after taking into consideration the economic impact, the impact upon national security, and any other relevant impact, of specifying any particular area as critical habitat”. 


As you can see, the basis of the ESA is science, not politics.  This is critical to your understanding of how this act affects you and your right of access to public lands.  I think we can all agree the intent of the ESA is noble, but let’s be objective in evaluating how well the implementation of this Act is achieving the desired goal.  According to the US Fish and Wildlife Service (USFWS), less than one tenth of all listed species under its jurisdiction are improving, while four tenths are declining.  Has the ESA recovered even one species?  The general consensus is NO.  Of the species who have actually been delisted, some have become extinct, many were incorrectly listed in the first place, and others have been recovered due to other laws or private efforts or management of US Wildlife Refuges. 


Let’s deal with some specifics.  It is widely accepted that the California gray whale was rescued by whaling treaties, not the ESA.  We can learn a great deal from the recovery of the peregrine falcon.  The rapid decline and near disappearance of the world’s peregrine falcons especially those populations in the Northern Hemisphere south of the Arctic, happened with such rapidity in the 1960’s and 1970’s that many thought the species was doomed.  DDT was banned in 1972, and it was hoped that this would at least eventually provide a clean environment if a recovery program could be launched.  The recovery program was exceptional.  It was essentially “privatized”-taken on by a group of ornithologists and falconers who had long admired, owned and flown the birds.  Making no attempts to shut down the coal mining industry, shackle the electric utility industry, halt oil exploration, or prevent timber harvesting in public or private forests, they used the techniques they had learned to breed birds of prey in captivity and then released the falcons into the wild to restore them to their ancient haunts.  Today throughout much of the East the peregrine is back, and is undergoing rapid recovery elsewhere. The peregrine falcon has been removed from the Federal endangered species list.


Much has been learned about how implementation of the ESA differs from the above examples based upon one incident that was studied in depth; the Klamath River incident.  1400 farmers owning 200,000 acres in the Klamath River Basin of southern Oregon and northern California were denied their water rights during the summer of 2001 because of the ESA mandated recovery plan for the suckerfish in the Klamath River Basin.  Nearly $200 million dollars of life savings and hard work were wiped out, as the land became essentially worthless as farmland without access to water.  This brought outcry and eventually this situation came to the attention of Congress.  On March 20, 2002, Rob Gordon, Executive Director of the National Wilderness Institute (NWI) testified before the House Resources Committee on H.R. 2829 and H.R. 3705 that would amend the ESA Act of 1973.  In addressing the issues of the quality of research used, Gordon testified:  “Under the current program the evidentiary standards for listing are, in a word, bad.  I use the word bad because it is an apt acronym for “best available data”.  The problem with best available data, or BAD,  is that best is a comparative word.  Thus the data need not be verified, reliable, conclusive, adequate, verifiable, accurate or even good.”  The NWI conducted a study in which they found that over 306 of the 976 recovery plans for species listed as endangered had “little to no hard information about the status of the listed species”.  With this type of doubt, the Secretary of the Interior, who supervises the US Fish and Wildlife Service, commissioned the National Academy of Sciences (NAS) to investigate the scientific basis for the recovery plan of the suckerfish in the Klamath River Basin.  The NAS reported in March of 2002 that there was no scientific justification for keeping Klamath Lake levels high by withholding its water from the farmers.  On the contrary, USFWS records reveal that the sucker populations increased when the Klamath Lake was low and decreased when it was high.  Consequently, the USFWS recovery plan would actually put the suckerfish in greater danger by maintaining the high lake levels.  And they knew it!


This example serves to explain why species are not recovering, but also confirms the suspicions of some who have watched the evolution of the ESA.  Michael Kelley of the Washington Post writes in the July 11, 2001 issue of MSNBC:  “The Endangered Species Act…has been exploited by environmental groups who have forged from it a weapon in their agenda to force humans out of lands they wish to see returned to a pre-human state.  Never has this been more nakedly, brutally clear than in the battle of Klamath Falls.”


Further support of this theory came from the discovery made by the U.S. Forest Service in the fall of 2001.  It was discovered that seven federal and state wildlife biologists planted false evidence of a rare and threatened Canadian lynx in the Wenatchee and Gifford Pinchot National Forests in the state of Washington.  Had the fraud gone undetected, it would have closed roads to vehicles.  They would have banned off-road vehicles, snowmobiles, skis and snowshoes, livestock grazing and tree thinning. 


None of the seven scientists received any disciplinary action other than a hand slapping and reassignment to another project.  Retired USFWS biologist James M. Beers called the false sampling amazing but not very surprising.  “I’m convinced that there is a lot of that going on for so-called higher purposes”. 


The ESA and Dogs at the Beach


How does all of this relate to us and our dogs at the beach?  This information is provided to confirm that we as taxpayers, who spend billions of dollars a year to pay for the implementation of the ESA, have a right to ask questions about the validity of rules imposed upon us by virtue of the ESA.  It is our right and our duty.  It has been seen before that the recovery plans proposed for the ESA are NOT always in the best interest of the species in question.  Take the Western Snowy Plover:


         Best available evidence at this time would indicate the Western Snowy Plover is not threatened.

         USFWS ignored two petitions for delisting long beyond the legally prescribed time frame for presenting a finding.

         Only after they were sued did the USFWS finally acknowledge these petitions presented substantial scientific information and agree to undertake the federally mandated review of the status of the Western Snowy Plover. 

         The USFWS recovery plan for the plover is based upon observational evidence only.  No scientific studies have been made as to the effect of dogs or any other factor upon the snowy plover’s breeding or wintering.  (We should point out that observational evidence is considered of poor reliability.  Especially when it is carried out by volunteers such as at Ocean Beach, or scientists with perhaps a vested interest as has been discussed earlier in this article.  The only evidence with less reliability is expert opinion.   The highest level of evidence would be randomized, controlled trials.  The second highest would be non-randomized, controlled trials or quasi-experimental studies). 

         The observational study at Ocean Beach in San Francisco indicated that less than one percent of dogs chased plovers, and that no dog ever caught or harmed a plover.

         It is pure supposition to state that off-leash dogs disturb the plover’s roosting any more than humans.

         It is pure supposition to state that any disturbance of the plover (other than death or injury) while they are roosting will have deleterious effects upon their breeding or survival.

         While off-leash recreation was allowed at Ocean Beach the observational study noted the population of the plover actually increased.  (Remember Klamath Falls!)

         It cannot be ruled out that the presence of off-leash dogs has a protective effect on the plover population due to intimidation of established predators by dogs.

         It has been established that the raven is a predator of the Western Snowy Plover.  We have seen no attempt to mitigate the ever-increasing population of ravens at Ocean Beach in San Francisco.

         We have seen no attempt to resolve the problem of litter at Ocean Beach.  Litter is known to attract ravens, an established predator of the snowy plover. 

         Although beach fires generally occur above the high tide mark (where the plover is most likely to roost), and are banned, they occur with regularity.

         In areas where the plover nests and breeds, exclosure fencing would serve to protect the plover from inadvertent disturbance by dogs or humans, as well as predators like the raven.



There is no scientific evidence to establish that banning dogs entirely or requiring them to be on-leash benefits the Western Snowy Plover.  It is not unreasonable to conclude that the ban of dogs altogether, or the restriction that they be on-leash, is designed to discourage dog owners from using the beach at all.  I direct you to the language of the ESA itself:  “The Secretary (of the Interior) may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying that area as critical habitat, unless he determines, based upon the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in extinction of the species concerned”.


We have the right to demand that our loss of these recreational areas be balanced by scientific proof that our sacrifice will indeed save the plover from extinction.  As of yet, that scientific evidence has not been provided.  The language of the ESA contemplates and supports our demand to be let back on our beaches with our dogs off-leash.