Illegal, or politics as usual?

Environmentalists say Bruce Babbitt broke the law and sacrificed the Atlantic salmon to protect the Endangered Species Act

Published January 5, 2000 10:00AM (EST)

A lawsuit to force the federal government to add the Atlantic salmon to the endangered species list has exposed a secret deal between Interior Secretary Bruce Babbitt and Defense Secretary William Cohen. Cohen and Babbitt aren't talking, citing litigation, but at least one staff member called it politics as usual. The nation's top environmental lawyers call it illegal.

Internal agency memos show that at the height of the Republican Congress' Contract With America fever in early 1995, Cohen, then a moderate Republican senator from Maine, sent a letter to Babbitt complaining about the way a U.S. Fish and Wildlife Service proposal to list the Atlantic salmon as an endangered species would affect Maine industries. In it, Cohen bluntly threatened to join his party's attempts to gut the Endangered Species Act if the proposal wasn't dropped.

Within the next few weeks, agency memos reveal, Babbitt put the brakes on listing the fish, over vehement protests by federal scientists. Today, the nation's top environmental attorneys say that Babbitt's action violated the law. The Endangered Species Act clearly mandates that science should be the only criteria for listing species. "Babbitt broke the law, period," says Mark Hughes, executive director of Earthlaw, a Boulder, Colo., environmental law firm.

The Atlantic salmon could become a national political issue, since last month Babbitt once again proposed adding the salmon, which spawns in Maine rivers, to the endangered list. Maine's governor, Angus King, a vocal opponent of listing, is putting the heat on Vice President Al Gore, who is facing a tough primary challenge from former Sen. Bill Bradley in neighboring New Hampshire. King wants Gore to block the listing, which he says would protect the fish by banning fish farming and agricultural irrigation in Maine rivers and throwing thousands out of work. But the current dust-up ignores the long history of compromises already made on protecting the salmon.

Spokesmen for both Babbitt and Cohen declined comment on the 1995 deliberations about the salmon, citing ongoing litigation. The incriminating documents surfaced recently in lawsuits brought by Defenders of Wildlife, Trout Unlimited and the Atlantic Salmon Federation to force the U.S. Fish and Wildlife Service to list the salmon on an emergency basis.

The number of endangered species lawsuits against the federal government has quadrupled over the past five years, exposing a pattern of avoidance and delay that casts doubt on the U.S. Fish and Wildlife Service's ability to do its job in the face of unrelenting pressure -- some would call it bullying -- from a hostile Congress. Some conservationists charge that the agency doesn't realize that the political climate has changed. They think the Clinton administration's mistaken belief that it's necessary to gut the law in order to save it has resulted in a pattern of questionable, often illegal deal-making.

While the case of the Atlantic salmon may be typical of the administration's legally questionable dealings on endangered species, this is the first time anyone has come up with a smoking gun, much less one that bears the fingerprints of two Cabinet officials.

At the time Europeans settled in New England, there were about a million salmon there. Over the next three centuries, the region's forests were razed, thousands of dams were built, fishing became industrialized and salmon, gradually, disappeared. Today, only 200-300 New England salmon still contain enough unique genetic characteristics, which are linked to their natal streams, to be considered wild.

So the federal government began moving to include the Atlantic salmon on the Endangered Species list. But on Feb. 8, 1995, Cohen, then a senator from Maine, sent a letter to Babbitt stating that protecting the state's 75 or so remaining adult wild salmon would "have a serious impact on Maine's agriculture, forest products, and aquaculture industries."

He added ominously: "The disposition of this [Atlantic salmon] petition will greatly affect my views regarding changes to the Endangered Species Act that might be warranted."

Interoffice memos and e-mails over the next few weeks reveal that Babbitt responded quickly. A March 1, 1995, e-mail from Chris Mantzaris of the National Marine Fisheries Service, which shares jurisdiction over the salmon with the U.S. Fish and Wildlife Service, stated that "Senator Cohen sent a letter to Brown [Ron Brown, who headed the Department of Commerce, which includes the National Marine Fisheries Service] and Babbitt opposing a listing actions. Babbitt took this very seriously and has requested that the federal register notice be redrafted to state that the petitioned action is not warranted."

The biologist's e-mail added, "The Region does not agree and neither do staff level people in HQ." These words were echoed in a blistering memo from another NMFS biologist, John Kocik. The March 3, 1995, memo stated: "It is my opinion that the proposed changes compromise the intent of the Act and the integrity of the science."

Kocik was right, according to the nation's top environmental lawyers. "It was a constitutional moment," says Zygmunt Plater, a legendary Boston College law professor who worked on the nation's first major ESA case, the 1970s effort to stop the Tellico Dam to protect the snail darter. Plater believes the early days of the Contract With America signaled a historic power shift from government to industry, with lobbyists writing legislation and the U.S. House of Representatives "essentially repealing a series of major statutes that regulate the marketplace."

"The 104th Congress put tremendous pressure on people like Babbitt. When you have one branch of the federal government asserting primary power, with the Reagan and Nixon appointees on the Supreme Court deferring to it, it is a major shift. The multimillion-dollar paper, timber and other industry groups that are dedicated to destroying the Endangered Species Act really seemed to hold sway at that time. They represent far more money than the federal government has for endangered species law enforcement. The agencies were cowering in fear, literally paralyzed with fear."

In this charged atmosphere, could Babbitt have done anything differently? Maybe, maybe not. But Babbitt's continuing penchant for back-room deals may leave him with an uncertain legacy at Interior. The former Arizona governor once told me, "Compromise isn't the answer some of the time; it's the answer all the time."

And compromise was certainly the approach taken in Maine. After receiving Cohen's letter, Babbitt ordered that the salmon be placed in a special category called a "candidate species," a kind of bureaucratic limbo for threatened and endangered species. Several months later, the U.S. Fish and Wildlife Service did renew its proposal to list the species, but this time it was downgraded to threatened, a category providing less protection.

Shortly afterward, Congress placed an 18-month moratorium on new listing. After the moratorium was lifted, the federal proposal to list the salmon was withdrawn completely, in favor of letting the state of Maine carry out its own plan for saving the fish, which would have been prohibited under the more stringent endangered listing originally proposed.

About a year ago, not long after a similar arrangement in Oregon was thrown out by a federal judge, Maine's plan flunked a review by federal authorities.

Now it appears that Maine's wild salmon are in even more trouble, as new diseases threaten to reach epidemic proportions without sufficient controls on aquaculture. The industry's reliance on hybrid fish that are partly descended from farmed European salmon -- a practice banned in Canada, which has its own worries about native fish -- is also causing alarm because of the possibility that escapees will taint the dwindling native gene pool. Catch and release fishing for sea-run Atlantic salmon was banned only last week to ensure greater protection for the fish.

On Nov. 18, the U.S. Fish and Wildlife Service once again proposed listing the Atlantic salmon as endangered, over the loud protests of Maine Gov. Angus King, Republican Sen. Olympia Snowe and the state's powerful aquaculture interests. Ironically, the aquaculture industry may have been hurt most by the four-year delay, which has allowed it to up its investment in non-native strains of salmon that could be banned once the ESA takes effect.

Conservationists like Mike Senatore of Defenders of Wildlife say that this is a perfect example of how the Clinton administration's insistence on a win-win policy ends up in losers all around.

But even a federal judge won't be able to answer the question haunting the whole debate: If New England's wild Atlantic salmon die out, will we ever know if the politically inspired delay pushed them over the edge?

Scientifically, it's a tough call. But the legal questions are easier to answer. Did Babbitt break the law? Hughes, Plater and a raft of other environmental lawyers contacted for this article all say yes.

What about Cohen? Given the desperate politics of the time, shouldn't blame be laid at his doorstep rather than Babbitt's? David Carle, the New Hampshire environmentalist who unearthed Cohen's letter prior to the lawsuit, believes the senator-turned-defense secretary's war on the pink fish was not only unethical but possibly illegal. After all, Carle notes, hasn't Cohen, a Vietnam veteran, sworn -- at least twice, if not three times -- to uphold the law of the land?

"It's an interesting question," muses Mark Hughes of Earthlaw. "If this were a white-collar criminal trial, Cohen's letter would certainly be enough to qualify as a threat. But legality depends on context. So I'd say it's reprehensible and, not only that, it's stupid. But not necessarily illegal."

By Susan Zakin

Susan Zakin is the author of "Coyotes and Town Dogs: Earth First! and the Environmental Movement" (Penguin 1995) and a former political columnist for Sports Afield magazine.

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