Fraud Under the Endangered Species Act

Unethical uses of the Endangered Species Act are destructive to coho salmon (Oncorgyncus kisutch). Free markets can provide a better balance among both rare plants and animals and human interests.

The creative force of biology is the process that differentiates competitors through randomized trials. Its advantage is to create and select competing genotypes, best suited to changing circumstances. Without mutation, hybridization, selection, and extinction, species could not adapt to change.

The response to selection processes varies from population explosion of successful alleles, assimilation into a competing stock, or total extinction. Between these extremes are varieties of competitors possessing attributes that may become advantageous if the circumstances change. New, and perhaps superior varieties can develop through hybridization. In that sense, the philosophical model of societal diversity owes much of its origins to the concept of biological diversity. It is a policy intended to enhance the ability to adapt to variation in external conditions and express superior attributes.

Given that observation, it might seem at first that maintenance of diverse distinctions is appropriate to conditions under constant change. Under the Convention on Biological Diversity the policy of the EPA has been to protect all alleles in the name of genetic diversity within a species. Unfortunately, preserving diversity then becomes a rigid orthodoxy that accentuates preservation of static measures of difference.

The emphasis upon preserving differences minimizes future adaptability, it is antithetical to competition, and is in antipathy to biodiversity. Managing by preserving genetic differences precludes taking full advantage of hybridized benefits. The combinations resulting from hybridization are mathematically infinite and, in fact, can induce new mutations. Preserving a genetic status quo halts full expression of a superior competitor possessing wholly new individual attributes. The Endangered Species Act does not recognize (and will not allow) the geometric increase of variation obtained when disparate alleles combine. It prevents competition that culls the inferior. The policy is, in those respects, destructive to species diversity and potentially inbreeds every allele. The promise of biodiversity under civic management could thus be destructive to the benefits it claims to represent. It is a maladaptive policy.

If an inferior variety is slowly culled, the response under current policy is to preserve the failing inferior. The causative attribution is universally human harm to habitat, or "incidental take." In the name of often unproven and subjective findings of endangered status, the agencies enact measures to prevent "possible" habitat degradation on the assumption that to prevent one type of harm doesnít have its own harmful consequences. The gambit has gone so far as to act to preserve non-native species! It is as if a family of polar bears escaped a zoo and the agency demanded that the landowners supply imported icebergs and keep them from melting, or go to jail.

Agencies are taking protective actions that not only have no benefit, but are at the expense of successful natives. In the name of preserving habitat for one species in decline for reasons having NOTHING to do with somebodyís care, the demand is that landowners be punished for possible transgression of a mitigation or protection policy, even when it is highly destructive.

A Fish Out of Water

This is a discussion of the plight of coho salmon and how environmental laws have become cynical tools of policy-makers. Coho has been declared locally Endangered. It is not native to the County. The fish is being used to control land, to destructive effect. The real causes of its decline are being ignored.

The coho salmon is almost gone from the streams of the Santa Cruz Mountains. Meanwhile, the steelhead run is improving or holding steady. Is this indication of a serious loss of habitat, the old canary-in-the-mine-shaft environmentalists are fond of clamoring about, or is it indicative of something else?

The commercial fishery is in trouble. So what is government doing? Besides using it to justify a virtual shutdown of forestry, the National Oceanic and Atmospheric Administration (NOAA) National Marine Fisheries Service (NMFS) is spending $19.4 million dollars to build a brand new science center. Theyíll "study the problem" committing an operating budget of about $2 million per year, to start.

From the NOAA press release in 1998,

"What better way to open the National Ocean Conference than to break ground for a world-class marine lab," said Representative Sam Farr (D-Calif.). "This fisheries service lab is one of more than 20 venerable institutions that call the Monterey Bay area home. Their presence here underlines the importance of the oceans to the economic and environmental well being of our community and the world."

The 53,400 square foot Santa Cruz laboratory will be located adjacent to the University of California Long Marine Laboratory, and the Universityís Marine Discovery Center that is currently under construction. The new facility will join a growing number of marine science facilities in the Monterey Bay area providing the opportunity for additional partnerships with state, federal, academia and private research entities.

"ĎI am most pleased to greet a new neighboring research facility located adjacent to UCSCís Long Marine Laboratoryóand I am delighted to welcome a new partner in marine research. The Monterey Bay Region is creating a unique consortium of leading ocean sciences organizations, and the new NMFS facility, with its distinguished scientists, is a major addition to this effort," said UC Santa Cruz Chancellor M.R.C. Greenwood, who also is current president of the American Association for the Advancement of Science (AAAS).

Itís really a pretty building, on very expensive property overlooking the ocean. It must be important. It is, but not for the reasons that you would think, or the ones they advertise.

They even name the Ďbene fisheriesí of this political feeding frenzy: the fishermen, the environmentalists, the University, and the civil servants. Funny, they donít mention the big winners in the deal though: developers! They donít vote in big numbers; they vote in big dollars instead. But, this isnít about land, money, and power; itís about fishÖ isnít it?

Fishing is a way of life that goes back thousands of years. It is a life of man and the sea weathering the spray, oilskin slickers, the smell of bait, and the cry of gulls. (I lived on a boat in various estuaries for ten years. Such people and that lifestyle are dear to me.) You, the taxpayer, are spending more government money to protect fisheries every year, than the entire economic value of the catch. That is a lot of money for saving fishermen. Why is the situation so dire? Did they over-fish the stocks?

Historically yes, but even if the fish are in serious decline, it is not scarcity of salmon that is putting fishermen out of business; itís a surplus. As you have probably noticed at the grocery store, fish farms in Chile, Alaska Norway, Canada, and Scandinavia (where the water is cold), are making tons of cheap fish: about a $1.50 per pound, wholesale. Salmon and trout are going to be as cheap as chicken. Since 1990, wild salmon have constituted less than 5% of total salmon production. We donít need the native salmon run for food.

If the fishermen are going bust anyway, why are they building the lab? Itís not designed primarily for salmon research, even if that is the story they are using today. They are just relocating a lab (in Tiburon, on $5 million/acre property) that was built to study pelagic fish: rock cod and the like. That doesnít give them any reason not to use the occasion for the pitch!

Back to the press release:

"This new laboratory includes a seawater system to provide our scientists the tools to study crucial salmon and rockfish biology and population dynamics along with other important environmental research," said Rolland Schmitten, director of the National Marine Fisheries Service "Once completed in early 2000, the new lab will employ more than 40 fisheries scientists and staff."

NMFS proposed designating riparian areas 300 feet on each side of the stream channel as critical habitat. Adverse effects in the riparian zone can impede recovery of listed fish, so the logic is that it is vital that a riparian zone of some width be included in critical habitat. NMFS chose 300 feet as a reasonable benchmark, recognizing that this is adopted solely as a definition of the area in which Federal agencies are to evaluate the potential risk of proposed actions on designated critical habitat.

"The designation of critical habitat to include 300 feet on either side of a waterway does not create a "buffer." It does not create new or additional obligations for non-federal parties. It highlights for all where listed salmon live and areas in which to be particularly mindful. It serves to identify the area within which a Federal agency should focus particular attention on potential habitat impacts of intended actions, and would be particularly important information in those relatively few cases where critical habitat may include areas beyond the current range of a species. A critical habitat designation can also focus expenditures for restoration activities whether by Federal or non-federal entities."

Our prescient bureaucrat, Mr. Schmitten can tell you what the policy is going to be before the science is done. Designation of a 300-foot buffer as Critical Habitat, is the same number that has been used by local anti-timber activists in Mr. Farrís district, for years. It is the height of the tallest redwoods found hundreds of miles away. They want trees like that too.

While Mr. Schmitten is reveling in the groundbreaking celebration of a new laboratory on his budget, he is reassuring the public that "riparian buffers" on the land does not mean more control of land... uh, then why did he bring it up? He says the designation only applies to the possibly deleterious actions of Federal agencies. Oh, OKÖ So, uh, where is the other shoe?

Two hundred four samples of steelhead were found in the Monterey Bay sites near the Pajaro River. It is significant that steelhead were found, but that salmon were not. The two fish have similar chemical composition to their bones. If steelhead bones were identified, it cannot be argued that the salmon bones had decomposed. No steelhead bones were found in the digs near the San Lorenzo River (archaeologists that are still looking). In other studies of the San Francisco Bay area, the archaeological record concerning whether the bones that were found were coho or chinook is ambiguous. It is possible that they were either. The oral histories of visual observations were largely by people with no expertise in the distinctions between coho and steelhead.

There is no hard evidence of a pre-Columbian population of coho salmon on the Central Coast of California. If coho had ever colonized these streams in "abundance," as is commonly asserted, the bones would have been in the middens. Coho is at least a marginal species in Santa Cruz, and no inference regarding habitat " impairment" can be drawn from their failure to thrive.

Coho salmon may have made transient attempts to colonize the streams of the Central Coast, but probably never established permanent runs south of the Eel River, hundreds of miles to the north of Monterey Bay. Yes, the NMFS, Fish and Wildlife Service (FWS), EPA, CDFG officials, the activists, and their consultant friends have been told. When you ask them about it, you get a mere assertion to the contrary. When a paycheck and power are mixed with the need to save the world, it is easy to rely upon a "deeply subjective experience" when that is all that they need to take control of land. Bring your VISA card. You will spend a lot, and maybe help the steelhead (which may not really need the help, but is where they will go when they find out the game is off with the coho), but you will not get permanent colonies of coho.

What is likely closer to the true story is that coho salmon is a planted fish.

People have been in the Santa Cruz Mountains a long time. They started out in migrant camps and settled into a few choice spots where there was food and spring water to drink. There were not so many of these people that they had a significant impact on local ecosystem function. The biggest thing they did was light off the occasional fire to burn out the brush, keep off the ticks, and get a little advance warning of grizzly bears and mountain lions.

Then the Spanish showed up in 1769 selecting the current site of the City of Santa Cruz because of plentiful spring water. Even then, the river was too polluted with animal waste to serve as drinking water, so the Spanish used the river as a sewer per the custom of the day. Once they had dispatched the grizzlies, it was fat city for the sea lions at the mouth of the river. The human population was growing fast. Between people, the seals, and the use of the river as a sewer, if there ever were any native salmon, they were probably gone, not long after the beginning of the 19th Century.

By the late 1860s, the San Lorenzo River was biologically dead. Its primary uses were waste transport and mechanical power. The sawmills and tanneries had dumped so much sawdust, acid, and rotting flesh into the river that the water turned maroon. There was so much waste wood in the river that water wheels literally jammed. If there are any native salmonids (including trout) left in the County, they were from minor creeks up the coast.

American ingenuity knew how to deal with these little problems: Breed them! Just release the eggs into the river and the fish come back to spawn. At the time, there was a robust coastal shipping business. People had seen oodles of salmon further north along the Pacific Coast and the transportation process was well understood. California salmon eggs and fry were packed in barrels of ice, transported, and planted in creeks as far away as the East Coast, as early as 1880. Transporting fertilized salmon was an expensive and low-yielding way to raise fish. The homing process requires several generations to stabilize. Fish hatcheries were developed in the name of supporting the economic value of coastal fisheries. It was paid for by private fishermanís associations and later by government fishing licenses. Between 1870 and 1960 in California, there were 170 hatcheries that virtually destroyed most native salmonid populations.

Hatchery fish are reportedly stupid, lacking in specific developmental and behavioral traits. There is little proof, however, that hatchery fish behavior does not resemble that of "native" fish after a few generations of in-stream breeding. (This is a point of contention among fisheries biologists.) In recent years, fish hatcheries have been under attack by environmentalists for raising genetically inferior salmon and diminishing the salmon run elsewhere, by flooding the gene pool with "hatchery bozos" with weak immune systems, etc. American and Canadian studies from Alaska to Oregon have found no difference in ocean survival rates between hatchery and stream-bred salmon, although there are differences in smolt survival rates. In-stream bred salmon also exhibit a marked propensity to reject out-of stream fish for mating, but this is not universally successful. Salmon genetically adapt to a new stream in but a few generations, lending doubt to the argument that loss of a single, local class constitutes a crisis.

Between the environmentalists and political budgetary pressure, the only State hatchery left in the San Lorenzo Valley (on Newell Creek), was shut down, regardless of the science. By the 1960s, one of the few remaining private hatcheries left was doing an OK business raising rainbow trout in Scotts Valley along Bean Creek. Whirling disease (an exotic pest) wiped out that trout farmerís business by 1970.

After a number of years, the Monterey Bay Salmon and Trout Project, a volunteer group interested in preserving the stocks of local salmonids, asked to take over the pens and raise some fish. After a brief period with not a few trials (including a toxic spill from a semiconductor equipment manufacturer), they moved their operation to Scott Creek on Big Creek Lumber property. To this day, they do state-of-the-art fish hatching, on a small scale, selecting only untagged fish to maintain a genetically diverse population. Could these people do more with that $2 million dollars per year the NMFS is spending to operate that lab in Santa Cruz? The hatchery keeps a lot of party boats in business, and that brings in tourist money. Scott Creek has the only decent salmon run left in the area (although over half of the returning fish have these curious marks on them), which perhaps explains why the Monterey Salmon and Trout Project may be shut down. (Their license has been up for renewal by NMFS for over three years.)

If the salmon were not suited to local streams, is it surprising that as the hatcheries were closed there was a corresponding fall-off in the population?

Coho salmon are not physiologically suited to local rivers. That conclusion is supported by archaeological evidence. It is supported by the experimental evidence of hatchery shutdowns in the San Lorenzo, versus the remaining run from the hatchery in Scott Creek. It is demonstrated by the continued improvement in the condition of riparian habitat for anadromous steelhead trout (to be discussed in Part V). It is thus incorrect to conclude, when hatcheries cease augmenting coho reproduction, that a drop in coho population is evidence of impaired watersheds.

Did the local environmental groups see opportunity in developing the perception of a crisis? It has been a gold mine. Various bureaucrats "nominated" watersheds along the entire Central Coast as "impaired" on grounds related to salmon. Now remember, watersheds extend all the way up to the ridgeline of the mountains, over twenty miles from the coast. A nomination of impairment stakes a claim on the use of every square inch of the drainage.

Besides mere power, $70,000,000 was dedicated to stream projects alone (none of it was allocated to the study the decline in ocean survival rates). "Fish experts" appeared out of the universities, chumming consulting and public speaking businesses to sound the alarm and garner public support for various projects. Tolerating some of these events requires either complete delusion or prescription medication. Go see one. They have cool slide shows, video equipment, fancy lighting, blank-faced sycophants, lots of promotional literature, and, of course, the inevitable petition. These people know what they are doing. Although they do have a point about the impact of historic practices in riparian habitat, itís not what you might think, as you will see next chapter.

The conclusion that coho salmon were endangered in Santa Cruz County was founded upon historically dubious assumptions. The designation of the population as an Evolutionarily Significant Unit, by which to list them as Endangered under the Endangered Species Act, was even worse. (The term ESU means that they were genetically distinct, isolated, and significant to species survival.) The local fish are genetically nearly identical with those further north. They are not genetically distinct. They straggle far outside the range boundaries. They are thus not isolated. The local numbers never were significant to the survival of the total species. The listing of "Southern coho" as an Endangered ESU was therefore based solely upon false testimony given before the State of California Fish & Game Commission by the Forester of the County of Santa Cruz. There was no corroborating evidence, there were no attached physical copies of his citations to peer-reviewed publications, there was contrary testimony and documentation that did cite peer-reviewed sources. The Commission granted the designation anyway. To designate impaired watersheds merely because of dropping coho population, contrary to the evidence in peer-reviewed publications, is an outrage.

Even if there ever had been salmon in the San Lorenzo River, one reason neither they nor steelhead will successfully immigrate to the ocean in large numbers still remains: large numbers of people consume large quantities of water. The City of Santa Cruz is permitted to use 12.3cfs (cubic feet per second) of what would otherwise be river flow. The summer water flow rate out the San Lorenzo River is now down to around 3cfs, less than a fifth of what might otherwise be available.

As far as the health of a river and its species are concerned, water flow is critical to ecological health. Higher water flow rate reduces average water temperature, deters the growth of algae, and improves oxygenation. Greater flow depth produces more flow rate variation that drops food for smolts. Deeper pools protect the smolt from predators. Deeper water dilutes back-ground pollutants and can reduce bottom turbulence that disturbs benthic nitrates and phosphates when they can do the most damage. Higher water flow rates reduce salinization of the estuarine habitat. Fish need water.

Activists and the government can gain control of forest acreage by directing the public to vent their frustrations on forest landowners, instead of looking in a mirror. You will always hear about logging in the same news report as discussions of salmon, but you will seldom hear about urban or agricultural water usage, much less production of wine grapes. Conversely, careful timber harvesting increases critical summer water flow by reducing vegetative consumption. It also provides funding, equipment, and expertise toward stream improvement projects that can benefit fish habitat.

"Protecting" forests will please voters foolish enough to think that NMFS will give them what they want. NMFS wants salmon to be a socialized commons with which extend their control over rivers and forests. The designation of the San Lorenzo River basin as an "impaired watershed" establishes coercive leverage over every property in the watershed. It gives NMFS the power to control billions in assets. It places the entire area in severe fire danger, with thousands of lives at risk, ostensibly to save what is at least a marginal, if not introduced fish.

No one argues that the streams should be healthy, but to list coho salmon as Endangered and posit the cause to be impaired watersheds, on the evidence that its population distribution should approximate an augmented condition, is asinine. To do so, without addressing the substantive changes we CAN make in water use, is foolish. To alter land management, in such a manner as virtually to guarantee the kind of conflagration that will destroy salmonid habitat for years, is psychotic.

The rulemaking actions advocated by NMFS will do nothing for coho and will eventually decimate native steelhead spawning habitat instead. About that NMFS does nothing; indeed, the policies exercised under their authority for decades have exacerbated salmonid decline.

Yes, there are much bigger causes of salmonid decline than the condition of riparian habitat. The smolts that leave for the ocean are not making it back to the river. Do NMFS and CDFG know that? Yes. Do they know precisely why? No, but at least two major candidates are under their direct control. Are they doing anything about that? No. What they have done by listing the fish and coddling political constituencies has made the situation worse.

No one knows the precise reasons for declining salmonid ocean survival rates, or so goes the official line. As with most problems, there are clearly a number of contributing factors. Besides mere over-fishing, there has been speculation attributed to competitive consumption of food stocks needed by escaping smolt, but this is not well-documented or sufficient to explain the problem. There has been a kidney disease in the fish that was blamed on hatcheries, but there is only one of those left and it is excellent. Others speculate that there was a die-off in the food pyramid correlating with the warm side of the Pacific Decadal Oscillation of ocean temperature inversions.

There certainly has been one big change in recent years.

A Seal of Approval

One of the causes of coho decline is pinniped predation. This story illustrates that, no matter how we try to isolate our impact upon natural systems, we are responsible for ecosystem population management, whether we like to deal with it, or not.

Seals are intelligent. They know a good deal when they see one. These days, theyíve got it really good.

It wasnít always the case. Back in the days of indiscriminate whaling and fishing, seals and sea lions (generically "pinnipeds," in this discussion they will be referred to as "seals") were hunted to the point of extinction. They were shot for meat, their fur, and to make lamp oil. Fishermen thought them competitors for fish, so they shot them too. We know better than that now, donít we? At that same time, when the forests were being logged without restriction, when streams were jammed with silt and logs, and when raw sewage was being pumped into Monterey Bay, the salmon runs were larger than they are now. Nobody seems to know why.

People love to eat salmon. They love it the world over. For years, American boats have hook-fished in coastal waters to avoid depleting domestic stocks. Meanwhile, huge Russian and Japanese trawlers took as many as they could net. The Department of State negotiated a multilateral treaty, the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean. Now that the stocks are depleted, Americans haggle with the Canadians over salmon from the coast of British Colombia. There is a lot of bitterness about this in Canada, about which the Department of State does just as little.

People love to catch salmon. Some pay good money for the privilege of waking up at 3:00 in the morning, riding out to sea in a stomach-churning boat in the gusty, foggy, just-above-freezing dawn, smelling the waft of dead fish guts. For hours on end, they wallow in troughs, drinking and occasionally heaving, dodging the malevolent rain of dung from sea gulls. They do it all for the thrill of feeling the death struggle of a fish from the dumb end of a pole. This is as effective a proof of human insanity as there ever has been (my wife loves to fish). The fishermen tolerate all this for that moment, at the end of the fight, after one last tug, to see that shining gleam in the murky water, to see their fish, to see that... bleeding head on the end of a line?

Itís bad for business.

Congress passed the Marine Mammal Protection Act (MMPA) to save the seals from indiscriminate slaughter. Since the banning of seal hunting, the harbor seals and sea lions have made a comeback, growing in population at a compounded rate of over 5% per year. Though there are now over 300,000 of them, it is still not what the government ecologists have guessed is what they call an Optimum Sustainable Population (OSP) level, yet.

The current population is acknowledged by the National Marine Fisheries Service (NMFS) to be higher than it has been "for centuries," so, what does "Optimum Sustainable" mean? It means that it is as many as can survive while completely consuming the food supply. Uh, what does that mean for the salmon? Just whose idea of "optimal" is this?

People complained that they ate too much salmon, so Congress told NMFS to do a study. The entire report goes on and on about harbor seals and sea lions. Curiously, it says very little specifically about northern fur seals. Why not? There are over a million of those, compared to the 300,000 pinnipeds in the study. Donít they eat salmon too? Well, yes, but northern fur seals are not protected under the Act, so there was no legal action to take and there was thus no funding for studying them. Werenít we supposed to be studying pinniped predation because salmon are nearing the point of extinction?

How do they reconcile this paradox of an OSP? Biological population models are dynamic. Predator and prey oscillate in abundance and decline. There is no such thing as an Optimum Sustainable Population in nature.

Some people would like to know how many they plan to have. They eat a lot.

The current estimated minimum consumption of biomass by these seals is about a quarter of a million metric tons (they donít say in the report what the estimated maximum might be). Of that amount, approximately 30-50% (depending upon whom you ask) is their favorite fish (which is the same as yours): endangered salmon and threatened steelhead. NFMS reports that they donít know precisely how much endangered salmon they do eat. That will take more study.

Do you remember hearing that fishermen were wrong to believe that seals had a significant impact on fish population? It was probably true, then. Fifty-five percent of the returning salmon have pinniped bite marks on them, now.

Why donít they change the OSP? Is it simple conservatism in the face of higher authority, such as the UN Convention on the Conservation of Migratory Species of Wild Animals, or is it bigger than that?

Seals are amazing animals and downright beautiful to watch swim. They have really pretty eyes, so they do look good on a calendar. Tourists like to see them and feed them. The seals like that, too. The case is similar to that of Yosemite Valley garbage bears in that they become dependent upon people. A good many like to hang out along the waterfront, and can get demanding about being fed. They have almost bitten off the hands of small children holding shiny toys, thinking that they held a fish.

The Marine Mammal Protection Act mandates that no control action may be taken until the OSP level has been attained. Not only that, it prevents lethal takings for the purposes of direct observation of what they eat. (Just imagine pumping the stomachs on a statistically significant sample of live sea lions with scientific confidence that they are fully evacuated while on the deck of a rolling boat! These people must be committed.)

The protocol of escalating non-lethal control measures they can employ has not been determined much less submitted to the lawyers for review. The way the law is written, before State Fish and Game officials are authorized to kill an offending seal, they have to prove to NMFS that that particular individual is a bad actor. Can you just see it? The OJ trial for a seal. Bureaucrats are sure good at tying their own hands, but then, seals are a socialized commons.

The proposed lethal control is to be done only by government hunters. While to many people, shooting the seals would be an act of barbarism, to others it would be a pleasure for which they would gladly pay. In some cases, it would be kinder to the seals than what is happening now. Read the report. The scientists are begging to do the job to save the fish and the seals.

The salmon stocks have been run down to the point of endangerment. The environmentalists have spent millions of dollars of other peopleís donated and confiscated money, restoring river channels to assist the coho salmon and steelhead trout into the river to spawn. They did it without much in the way of fulfillment. The fish donít make it that far.

Itís pretty cool to be a seal in Santa Cruz. When they get hungry, they just flop off the dock and stroke lazily over to the mouth of the San Lorenzo River. They float and bloat at the river mouth, and then cruise back to the marina to complete the digestive process, crowding people who pay hefty berth rents right off the docks. They are noisy and, uh, messy. The environmentalists passed laws to fine people who pumped their used beer overboard, years ago, but they donít seem to have a problem with the processed salmon from seals. The reek of rotting urine can drift for over a mile.

The sheer volume of feces they produce in these warmer southern waters is polluting the water to the point that, in some places, the fish and oysters wonít survive. Along the beach, south of Santa Cruz, the stench of rotting urine is overpowering. The beaches are occasionally closed because of high counts of coliform bacteria, but the source is never mentioned. (People will probably assume that the source is human.) From the air, the nitrogen plume is visible for miles. It is a lot of untreated sewage, but as you will find out, that might be a good thing. The locals donít seem to mind because, of course, itís natural sewage.

Santa Cruz is a tolerant University town with a "progressive" bent. It is a place with a larger-than-usual population of the perpetually twentyish with a lower-than-usual threshold of probity. It has some of the best waves around, with surrounding restaurants, artsy shops, and an ample supply of nubility upon which to expend free testosterone. Young males travel hundreds of miles every weekend to, uh, surf. Local business depends upon it.

Just imagine: Youíve picked up this date after a couple of drinks in a bar. Gonna go down to see that sailboat that cost you 60 grand for just such a purpose. Youíre walking down the dock, looking at the pretty boats, giggling and wobbling, telling tall tales about the romance of sailing. Your foot slips, the fetid smell of fully digested salmon wafts into your throbbing nostrils. You look up at your boat and there he is; the offending beast, sleeping on the headfloat, four hundred pounds of bull sea lion. Itís his boat now. Your cry of frustration leaps from your throat. The bull, undeterred, swings his head around, and gazes at you sleepily with those soft brown eyes. He belches. Brazened, you charge at him again, yelling and waving your arms. He looks at you placidly, imperceptibly gathers himself, and responds in kind with a bellowing rush. The violently wobbling float starts to sink under the weight, the sensation of cold water wraps around your ankles and awakens you from your sudden stun. Hustling off in your squishing Nikes with the tattered remains of your wounded pride you begin to ponder, ĎDonít they have any natural enemies?í

Surfers are a rather independent and eclectic bunch. Many fancy themselves rebellious. They have an understandable love for the forces of nature that bounteously supplies them with all those tubular waves. Many consider themselves environmentalists and fight for political issues supporting clean water, like stopping silt from those damn loggers. They really like the seals, especially because they like to surf too. They can identify with them in their shiny black wetsuits. We could call them Ďpinnipedophilesí but somebody might take offense, or maybe get weird ideas. In general though, they donít care so much about salmon (or seals for that matter) as to want a mass return of Great White Sharks.

The sharks of course, donít know a wetsuited surfer from their favorite meal. Evolutionary necessity hasnít allocated sufficient neurons to care (though the taste of wetsuit probably spoils things a bit). The fishermen, finding harder to get salmon, and with no restrictions on sharks, have found that people will eat sharks too. Itís cheap fish. The oils in the cartilage "fight cancer." The skin makes exotic leather. OK, so sharks.

The surfers are happy, but now the sharks are so scarce and the seals so overpopulated, that the sick and weak float in on the tide. More seals die from the contagion because sharks arenít there to consume the sick. Volunteers care for them until they die because government doesnít have the funding to do it. Seals are a socialized commons. Maybe a 30-06 isnít so inhumane? Is it less traumatic than "natural controls," speaking of which...

Grizzlies are intelligent and can be cute (if you are far enough away) but somehow seem unlikely to ignore a semi-clad sunbather, without which there wonít be many surfers. The bears once did a good job of interrupting the seals in their shoreline sunbathing. The seals, being a little slow on the land, once stuck to offshore rocks as much as possible. Just think of it: Between the sharks and the bears, we could even transform surfing into an "extreme sport." It could be popular!

So what do we do to save the fish? Have surfers pay for shark nets and ocean habitat mitigation? Fence waterfront restaurants so that bears donít saunter in? Sell tags to party boat fishermen for a limited seal hunt? Before NMFS assents to that, a line of animal rights activists will offer their bodies to stop the Ďwanton slaughter.í They will demand seal birth control, or relocation, or any other means to sate their consciences, regardless of the cost. Who wants the patent for a rifle-fired dose of Norplant®? How many seal-gynecologists are the Universities training? Ironic isnít it?

It is easier to protect something than it is to take action, because you canít be blamed if it all goes wrong. Rather than do anything drastic, NMFS will just blame loggers and go into real estate by placing the entire Pacific Coast under protection. They will stop the logging that so "devastates" the salmon run and pretend that the forest wonít burn. The marine mammal activists love the seals, but donít want the accountability for managing them, much less having to pay for the service.

So what did the government do? Did they pay landowners for the number of successful emigrating smolts they spawned? No, they amended the MMPA and authorized people to use exclusively non-lethal methods to chase seals away. Seals are too smart for that. They can figure out if you really mean to kill them or not. It didnít work at the Ballard Locks on the Columbia River. No, the fishermen get to watch while the seals destroy equipment worth tens of thousands of dollars and the taxpayers pay for part of it with subsidies.

The environmentalists know better than to demand the return of Great Whites and Grizzly Bears near the beach. Too many people like it. Shark promos would have to come after some expensive advance PR about the need for breeding grounds for ocean species, but perhaps they can find something more appealing and cheaper first.

The Snowy Plover (a shoreline water bird) has been listed under the ESA as a Threatened. Recreational use has been assigned part of the blame. The beach is next.

Shoot the Hero

The Endangered Species Act (ESA) has done more to destroy the value of private resource land than any other piece of environmental legislation. It started out protecting animals that were being hunted to extinction. Whether it was passenger pigeons, raptors, or prairie dogs, the main reason for their decline was that people were trying to kill them. Often it was government that was the prime offender, by offering a bounty for the killing.

Biological surveys suggested that one of the contributing factors in the decline of species was destruction of habitat. It was argued that in order to save the species their habitat must be preserved. Preservation was the usual prescription, whether that included preserving conditions that had contributed to the decline in population, or not.

Consider such a forest landowner that has, for generations, cared for a forest by the best standards of the day, learning to do a better harvest each time one was conducted, and complying with the law, as necessary. The land near the property is being developed rapidly and, BECAUSE that family has done such a good job caring for it and preserving open space, the government wants to take it to protect some fish or other species that may be doing fine.

Should the owner resist, the listing of an endangered species can leave the property valueless. It can destroy the ability to raise the capital or provide the cash flow to mitigate the underlying problem for the species. If the mitigation doesnít work, the owner may be held responsible for the results anyway. The "standards" are subject to rapid change and subjective interpretation. If the mitigation isnít performed, in a manner preferred by the enforcing agent, the owner can face an expensive defense against outrageous penalties, even if the specified mitigation is demonstrably counterproductive. These fines can be assessed without due process, even if the owner is not culpable for the historic decline. Sometimes, use of the land is taken simply because it MIGHT be a place deemed suitable for reintroduction. From the perspective of the landowner, endangered species have transformed into dangerous species.

What landowner would take "the long view" of habitat management, when faced with an escalating risk that the option to recoup the investment in a land use may be removed forever by exercise of political whim?

If a landowner discovers an endangered plant on the property, the rational response to this policy would be to identify and destroy the species before the authorities find it. If the authorities do find it and protect the habitat, they can end up mandating retention of the very processes inducing the degradation.

The activists have demanded that government take control of riparian corridors to protect fish even if there is no evidence of stream degradation. The public representatives declare the forest "too valuable" to the interests that bought the houses, wanted the freeways, and are unwilling to compensate the landowner for that value. Meanwhile, the State still issues fishing licenses for salmon when the ocean survival rate has been established as the cause of decline! Together, they guarantee that a firestorm will destroy houses, forest, and fishery. It is a democratized commons, created because there is a majority constituency that got theirs, wants new products from the land, and doesnít want to pay for them.

The suburban areas are already developed. The owners of all those other parcels, derived ALL the benefit of the conversion at no cost to protect the displaced species. The purchasers of those houses paid NOTHING for protecting endangered species. The owner of that last remaining parcel must bear nearly the entire cost to protect that species and is disallowed any reward for their investment, in order to please those same homeowners. We punish the landowner for patience, or even the desire, to operate a resource business adjacent to an urban area even when the land use isnít the cause of a loss of habitat. Such an owner is, in effect punished for NOT having already destroyed that habitat. When they go broke and try to sell, we accuse them of profiteering and go running off to demand "purchase" of their land at a suppressed price under eminent domain for greenbelts to halt urban sprawl!

The urban public is insane with insatiable greed.

Shouldnít we be thanking these people for finding a way to hold the land intact for all this time? Given that they have been so patient and foresighted, should we not be rewarding that?

Buried Treasure

This idiotic process of punishing those we should celebrate is happening all across the country. It really isnít worth trotting out an endless list of horror stories about suckerfish, spotted owls, fairy shrimp, furbish lousewort, snail darters, kangaroo rats, and the like, to prove the point. We already know about government stewardship of the land, so what is the choice really about?

What might we do to get people to look for rare and endangered species and foster their development and renewal, while maintaining a dynamic balance among competitors? This proposal is about what might be done to have landowners protecting them as if they were indeed, buried treasure.

We could take a lesson from what destroyed so many endangered species. Years ago, if we wanted to get rid of a "pest," the government offered a bounty. It was effective. Bounties are the principal reason why so many of these animals were nearly destroyed. Could we just do the opposite?

Could we pay people to increase the numbers of endangered species at a rate inverse to the difference between current and sustainable levels? Do they want spotted owls? Do they want steelhead? Do they want jealous protection of the endangered species? Do they want good census data? Do they want it done under the guiding hand of the one person who knows the property best? Then they can PAY for it without having to buy the property or lose all its productivity. Those landowners will invent better spawning pools. They will seek new varieties of bugs. They will learn all about how to optimize the quality of habitat.

Would it cost less to pay people to increase the numbers than to pay for all the lawsuits and lost production?

How would we qualify the price? How expensive is the land? How valuable is the alternative use? What is the cost of the work to be done? What is the risk of species loss? It would be great if we knew. Through the insured certification process we would slowly find out. It would be no surprise if government ended up paying less to property owners than the price of the lawsuits alone. Such payment would only have to be enough to motivate the desired result and would yield income taxes in return. It is also likely that a market in risk offsets will replace civic incentives. If it is a good investment, there will be a source of capital to support it. Imagine a commodities market in endangered species credits. Such credits could eventually function in a privately funded market as risk offsets among species management enterprises. It would be mitigation with quantified economic value.

Pay the public, instead? The activists would be apoplectic with fear and rage, ĎThe situation is too delicate! The public doesnít understand! They could make a mistake!í As if the government never has? At least they wonít all try the same thing and would lose money if they were wrong. It would also make the bureaucrats a little more circumspect about declaring a "subspecies" endangered, in the first place. A lot of these declarations of subspecies status are simply for the purpose of confiscating land for variations that are not subspecies at all.

The real reason the activists would howl is that they would be losing what they regard their key weapon in THEIR fight to "save the environment." Why the fight? Do they have to do the saving? Whose environment is it, anyway? Did they buy it? Is this about career, ego, or results? Since when did "weapons" save anything? Isnít there such a thing as collateral damage?

Who would verify the work and the census data? The certifying body that audits best practice land management and the insurers that finance the risk already would require independent verification under this proposal. They could hire the former political activists to do the verification work. Because it would be a competitive market based upon objective data, it would be less corrupt than what is happening now.

The EPA policy goes so far as to demand habitat preservation to protect endangered species when the situation may require the exact converse in order to save it. It is becoming increasingly common for amateur biologists, such as lepidopterists (butterfly collectors), to keep populations of unique insects secret from the EPA in order to protect the species from civic preservation. If they know that the reason the butterflies are in decline is that supporting native vegetation is being displaced by weeds, they instruct local property owners how to raise the necessary plants and the importance of weed control. Sometimes the best thing one can do to bring up native plants is to turn over a vacant lot with a bulldozer!

With the power of creativity that insured certification unleashes, we might even end up with a futures market in risks related to resource assets. There might be speculative value to be found in the knowledge derived from ecosystem interactions, cyclic weather phenomena, and new mitigation technology. The net result would be that capital would flow to the most valuable resources under the greatest degree objectively-measured threat, or with the greatest leverage toward improving ecosystem function. The investment would be more cost-effectively focused toward reducing the scope of the problem and its associated risks.

Does this really seem to be such an outrageous idea? Consider that with the power and the falling cost of computing and broadband communication, such specialized markets for other goods are only a matter of time. Why not ecosystem assets?

How do we differentiate in value between a wetland on the edge of an urban bay and a corridor among high desert communities? Do they want differentiated experiments? Would those civil servants want to go into the business? Would they prefer a system where trained ecologists would have economic advantages in property markets because of their ability to identify and manage ecosystem assets? Do the people who are currently busy fighting landowners and pushing paper in the National Marine Fisheries Service want to join the living and start a company? Would it help to have scientifically trained people bidding for the assets with which to learn to extend the state of the art of improving ecosystem function?

Will the government make that happen? If we shut down the productive assets of the nation, then how would the work be financed? If you think this idea is half-baked, look at what we are doing now.

Natural Process: That Environmental Laws May Serve the Laws of Nature, ISBN: 0-9711793-0-1. Copyrights © 1999, 2000, & 2001 by Mark Edward Vande Pol. All rights reserved.