"We're from the Government, and We're Here To Help You": NMFS' New 4(d) Rules for Pacific Salmon
Yesterday Will Stelle, head of the National Marine Fisheries Service's Northwest Region, announced that he was "creating powerful incentives for local programs in place of Federal 'take' rules". According to Mr. Stelle, the new "4(d)" rules for Pacific salmon shortly to be proposed by NMFS represent "an exciting innovation that demonstrates again the flexibility inherent in the ESA". Mr. Stelle is surely correct about the "flexibility" of the ESA. What NMFS is really proposing to do, pursuant to section 4(d) of the ESA, is to declare that fish that are not endangered (and not listed as endangered), must be treated as if they were.
Section 9 of the Endangered Species Act prohibits "take" of endangered, but not threatened fish. Thus Congress recognized that draconian "take" provisions should generally apply only to truly endangered species. But Congress did provide, in section 4(d) of the Act, that NMFS could issue "such regulations as [it] deems necessary and advisable" including regulations to prohibit "take" of threatened species.
Stelle's homage to the "flexibility" of the ESA is no substitute for an explanation why NMFS believes it is necessary to provide extraordinary protection for these fish. For example, the Puget Sound chinook salmon now listed as "threatened" constitute thirty different runs of salmon that are collectively at no appreciable risk of extinction whatsoever, except perhaps from continued overfishing sanctioned by NMFS. There is no cause for administratively upgrading their protection to "endangered".
Worse still, Congress left NMFS free to pick and choose who would suffer the burden of take rules, so that for some groups of citizens, the fish will be treated as threatened (allowing take) and for some groups of citizens, the fish will be treated as endangered (forbidding take). In particular, NMFS proposes to maintain the political popularity of the ESA by categorically exempting "urban development" from take rules, while continuing to put the screws to rural Northwesterners. And NMFS proposes to exempt "fish harvest activities", even though overfishing put Puget Sound chinook on the threatened list in the first place. And, throwing further fuel on the fires of anti-tribal sentiment, NMFS declares that whites should face fines and prison time for killing a single tiny juvenile salmon, while tribal activities can go forward so long as the tribe does not wipe out the entire salmon "species". (Because NMFS has launched its press campaign weeks before actually issuing the text of the 4(d) rules, the precise scope of all these exemptions remains to be seen.)
NMFS' approach to regulation is indeed an "innovation", but it is a pernicious one that reflects the absence of anything recognizable as "law" governing salmon recovery. Northwesterners are now at the mercy of federal officials, accountable to no one, and many Northwesterners will dare not offend them lest they be singled out to bear the burdens of anti-"take" rules invented by administrative fiat.
But they should. NMFS will be holding a series of "public hearings" all over the Northwest, commencing January 10, 2000. Where Congress fails to provide any guidance for agency officials, only public outrage and pressure can influence the development of "innovations" like these. But most Northwesterners appear to be sleeping through the greatest expansion of federal authority since Reconstruction. Some day they may wake up and realize that the multiple layers of salmon recovery empires under construction do not serve the public interest. By then it may be too late to do anything about it. Once the rules are in place, the courts will probably declare that government by administrative fiat is what Congress intended.
James Buchal, December 15, 1999
Links: NMFS press release with Stelle quotes; NMFS Q&A piece with hearing schedule (both documents require Adobe Acrobat)
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