Rob Gordon was the senior advisor to the director of the US Geological Survey and the Deputy Assistant Secretary for Policy and Environmental Management at the US Department of the Interior. He also served as the staff director for the subcommittee on Oversight and Investigations on the House Committee on Natural Resources.
Federal Newswire:
Has our view of environmental and natural resources changed over the years?
Rob Gordon:
I think that the trends overall are really quite generally positive. However, if you are looking at it from the perspective of our natural resource policies, I think it's the opposite.
We really have a great conservation story in this country, and it stretches back before the era where the conservation movement began. Prior to that time, there was substantial degradation and loss of natural resources. Everybody lived on a farm, which means everybody had to kind of clear a space so you lost that forest habitat.
Everybody was competing. They viewed wildlife as competitive. They either were eating their crops, fruit from their orchards, raiding their hen houses, or they were game species and the species that people wanted to harvest.
The wildlife suffered severely and everything was made out of wood. Our homes, fences, wagons, boats, buildings, train tracks, and the fuel on our fire. So there was a period where wildlife was wiped out. Habitat was dramatically altered, and we have been recovering from that since about the 1920s, and that's why I say trends are really generally very good. I'm talking about both habitat and wildlife.
Federal Newswire:
Can you explain the tragedy of the commons and how it applies to environmental and natural resources policy?
Rob Gordon:
Well, it comes into play greatly with wildlife. Basically, the theory behind the tragedy of the commons is if nobody owned a natural resource, then people would all compete as quickly as possible to exploit it. The classic examples are Buffalo.
They were out there running around on federal, tribal lands, or vast tracks that somehow came into private hands and people were just eager to go out and shoot their own buffalo. There were campaigns to actually reduce the number of buffalo. As a result, a buffalo herd that clearly numbered in the tens of millions, dwindled to well below a million. Nobody owned it. Nobody had a vested interest to take care of that species or to make sure that it was preserved, and there weren't really laws on the books that were directed towards making sure wildlife was responsibly managed.
As a consequence, some species suffered significantly from the tragedy of the commons, like the passenger pigeon that was driven to extinction by what was called market hunting at the time.
Federal Newswire:
What was market hunting and how does it figure into all this?
Rob Gordon:
Well, we had a culture that was essentially established originally on people going out and fending for themselves. They grew their food, caught it, or shot it. All the way back into the 1800s, you had people starting to engage in the commerce of wildlife, particularly notable is whaling for example but it also occurred with terrestrial species, game birds and mammals.
People would be harvesting deer and shipping them for others to consume or doing the same with passenger pigeons. As a result, without appropriate state regulation or people defending essentially an interest that they had in that species, they dwindled, some of them went extinct, but most of them have come back from really depleted numbers.
Federal Newswire:
How does this work in the context of the Endangered Species Act?
Rob Gordon:
We've learned a lot [but] I don't think we have applied that. I think there's been a kind of denial as regards to how well the law functions.
The Endangered Species Act was passed in 1973 and people were still working under the mindset of the tremendous loss of natural resources, particularly wildlife, and the substantial changes in land use that had occurred over the last couple of hundred years. The trends had already started to change, and there were already a lot of different regulations and rules on the books, and there was a conservation movement that had been established.
By the time the ESA became law, I would argue a lot of the trends had already changed…However, [that hasn’t] really…affected the way people think about extinction or the application of the law.
The law has been on the books now for 50 years. There's 1,628, I think different entities listed, animals and plants. After that 50 years, you would hope we would've seen a lot more success than we have seen. There's only 86 domestic species that have ever come off. Eleven by virtue of extinction, 21 by virtue that there is a recognition by the federal agencies that the data used to list it were an error.
That leaves you with about 54 that supposedly were removed from the list because the law worked, it recovered them. That's at least what the federal government, Fish and Wildlife Service, NOAA Fisheries, or the agencies that implement the ESA stated when they took those plants or animals off the endangered species list. However, when you really explore those 54 species, you find out the record is even worse. About half or so actually were put on in error and then claimed to be a success, but they really weren't.
Federal Newswire:
Is the ESA more about land use management over protecting species?
Rob Gordon:
I'd say in general that's absolutely true. That's not to say there are no species that have benefited or there haven't been specific actions that have been beneficial to a truly endangered species.
The Fish and Wildlife Service has done some remarkable work on the California condor, bringing it back from very few through captive breeding to hundreds today. I think that may be kind of the exception. We don't have really very good measurements of the law, but it seems to be more used as a means of controlling land use. That's basically done through a couple of provisions.
If I could step back to describe the law in a nutshell, what the agencies are supposed to do is identify a plant or animal that's endangered or threatened, which is a lower level of protection, put them on a list, fix them up, and then take them off. We've already addressed that they haven't taken many off, and most of those that they've taken off have really been because they were mistakes.
While the species are on the list, that's where the conflict comes in with land use. There are a couple of different mechanisms under the law that land use is affected by. One is something called designation of critical habitat, and there's at least an area the size of California, maybe double the size of California that's been designated as critical habitat for endangered species.
Federal Newswire:
Are these private lands that have been designated as critical habitat, public lands, or both?
Rob Gordon:
It's a mix. There are other areas I'm leaving out. They also designate critical habitat along rivers, and they do that based not on acreage, but river miles. In any case, I would argue that the lion's share of the regulatory impact is not through the critical habitat, although the analysis of the economic impact for specific species with regard to their critical habitat impact can be in the billions of dollars.
However, the lion's share is through a provision of the Endangered Species Act called ‘take’, and you are prohibited from taking an endangered species. Taking means to shoot, wound, kill, hunt, trap, capture, collect, harm, harass, or attempt to engage in any such conduct.
I'm going to go out and I will trap this animal, shoot this animal or wound it. But several years ago in a Supreme Court ruling, the element of ‘take’ harm was expansively interpreted to include habitat modification.
Now if you have a Golden-cheeked warbler on your property in Texas and it needs cedar trees, then you don't necessarily have to trap the Golden-cheeked warbler or shoot it, capture it, or wound it. If you cut down the type of tree that it needs for nesting, the agency could determine you have now taken the species.
Take comes with both civil and potentially criminal penalties and fines. There was a biologist at the Fish and Wildlife Service who said many years ago, "One of the problems with the Endangered Species Act is if I find a rare metal on my land like gold, the value of my land goes up. But if I find a rare salamander, snail, beetle, or butterfly, the value goes down."
Federal Newswire:
If you are in an area where the Golden-cheeked warbler might be and you happen to find that you have cedar trees on your property, is that a problem?
Rob Gordon:
Well, there's an old saying, “shoot, shovel and shut up.’
That statement, “that the price of the value of the land goes down with the endangered species” reveals one of the inherent flaws in the law and that is if you want more of something you don't punish people for having it.
That's kind of the effect of the Endangered Species Act right now because you lose control and management over your property possibly. It doesn't actually have to happen, there just has to be the threat of it to affect people's behavior. If we want more of something, that's not what we should be encouraging.
Obviously there are not going to be very good statistics on that because it's potentially an illegal behavior and people are not going to be out saying, "Yeah, I got rid of that thing because I was concerned my cow pasture would be lost."
Right now, one of the things I know people in the cattle industry are concerned about is the monarch butterfly. Everybody loves the monarch butterfly. The monarch has a particular host plant that it lives on, and that's milkweed.
Problem for cattlemen is that milkweed is poisonous to cattle, the cattle will eat it. So they're going to want to control it in their fields to eliminate the potential that their cattle die off. That's basically their bank account. All of their money is in that cattle, and if they're unable to control milkweed on their pasture, it could present a serious problem. They may face the dilemma that the Fish and Wildlife Service could interpret that to constitute taking an endangered butterfly.
Federal Newswire:
Even if your intention is not to harm a monarch butterfly, you have to admit in your application that this could potentially harm them, which puts you at a severe disadvantage in terms of making one of these applications, doesn't it?
Rob Gordon:
Yes. The ESA is a strict liability law. You don't have to know that by going out and collecting a monarch butterfly or picking up a particular endangered turtle that you are violating the Endangered Species Act. You just have to know that I intended to pick up that turtle or catch that butterfly, and that's all the intent that's taken to be prosecuted criminally.
So the incentives are all wrong. Now, I would believe that some of the intent of drafting those provisions like that was originally designed to stop people who were, for example, poaching or people that knew there was this particular species that was endangered and it's going to prohibit you from developing that tract of land, but they went out and got away with it anyway.
So yes, there are mechanisms like incidental take permits, habitat conservation plans, there's assurances with agreements, safe harbor. There's all kinds of bureaucratic [workarounds] to allow people to go about doing their business, but I don't think that they in general work and in essence, you're losing a portion of the value of your property.
The argument is, "Hey, we didn't take the title to your property." But what you did is you may have taken the most important potential uses. For example, let's just [imagine] a hypothetical ranch that has a couple of hundred acres, but it only has two water holes and they're very small, but those water holes are home to a particular endangered species.
Well, if the Fish and Wildlife Service comes in and restricts your use of those two waterholes, they haven't affected the other 195 acres, but they've affected the five that are essentially critical to the functioning of the ranch. You can't have cattle without the water. Basically the result is that the ranch owner becomes responsible for delivering a public good.
If we all want to preserve endangered species, then we should all bear the cost, not individuals, and they are essentially bearing the cost by losing value in their property.
Federal Newswire:
For the groups who are in favor of this, do they want all the land locked up?
Rob Gordon:
…It's difficult to ascribe a uniform set of motives to a large group of people. I think all Americans want wildlife and habitat to be conserved, be plentiful, be there for future generations. I think that traditionally we have a very strong conservation movement that really initiated some of the most successful wildlife management and restoration programs.
A lot of the backbone of that movement came out of the hunting and fishing community actually. Huge amounts of the habitat were provided by people who are in farming, ranching, or privately owned forests. A lot of people who are in those areas of work choose that because they love it.
The problem is with the modern environmental movement where owning a really unique resource on your property used to be a source of a bragging right. We've made it a liability. In general, I think there are people in the environmental community who are just seriously misinformed, kind of cognitive dissonance, and just accept hook, line and sinker stories that were developed decades ago and see human beings as a net negative. I mean, we are just bad and destructive.
Federal Newswire:
Can you explain the idea of biome collapse?
Rob Gordon:
There are other people who are using environmental regulations basically to constrict human activity into economic growth, and there's no question about that. That's because they see human beings as a net negative.
For a lot of people, I think they do so based on this scare that we are seeing this massive extinction rate, biomes are collapsing, we're losing habitat, it's disappearing at this incredible rate, and that as we have more people and more economic growth, inevitably it's going to increase. This is an entirely flawed view of the world.
The reality is if you take wildlife populations that we have the best data for, and you go back a century, you look at bison, musk oxen, moose, elk, antelope, mule deer, whitetail deer, javelina, mountain lion, and black bear; these things have actually increased in numbers. These are all things that tend to require a great deal of habitat. If there's enough of a habitat for these things to expand in number, that means there's habitat for other things.
We also find…that black bear's really are omnivores, but black bears, mountain lions, bobcats, red foxes, martens, fishers, most of these things have been improving. If they're improving, that means they have prey. They're increasing in number, but people hear these little factoids like the Sonoran antelope is endangered, and yes, maybe the Sonoran antelope is endangered. That's a subset of the species of American antelope, which at the species level has come from a few, maybe 10,000-20,000 a hundred years ago to over half a million today.
They're doing great and they're in 17 states. But if we look at this subspecies in the southwest corner of Arizona that maybe gets over into the border of California, it's not doing as well. But to the average person, they just hear that this antelope's endangered, and they don't have time to go through and understand where it fits in the context of things.
We have five different kinds of tiger beetle that are on the endangered species list, but there's maybe 2300 kinds of tiger beetle in the world. There are maybe 10,000 kinds of beetle in the United States. What is the significance of 20 kinds being on the list? People will argue, well, that's just the 20 that we found.
There's lots more, but that's kind of speculative when you look at the data for some of the largest animals. We have the best data for mammals, birds of prey, big things like alligators that are all doing remarkably well as groups.
Federal Newswire:
Is there a myth about the effect of humans encroaching on animal habitats?
Rob Gordon:
Absolutely. I think the best population estimate that I've seen for mountain lions was in the 1970s. There were maybe 15,000. Today, I haven't found a good number. I've gone around and tallied up what I can for each state that's reported a figure, and I'd be confident in saying there's 30-40,000, maybe even more. That's a doubling, tripling of the mountain lion population.
We know that mountain lions are doing well because they're ending up in places they haven't been seen in a hundred years. That's because when the young lions are kicked out, they disperse and the male lions disperse great distances. There have been verified observations of mountain lions in Illinois, Indiana, Kentucky, Arkansas, and I think Louisiana. Probably a dozen states. One actually made it all the way to New York.
It's just a matter of time before those mountain lions eventually establish a resident population in those states and that's going to happen because what they need are two things. They need habitat and they need prey. White-tailed deer have gone from perhaps 300,000 around the turn of the last century to 20-30 or more million today. So there's plenty of deer.
Then if you look at places like New England in the last hundred and so years, the amount of habitat that's regenerated in New England has been one of the most remarkable and missed stories. If you look at all the New England states, they're all 50-90% forested, whereas 200 years ago they might've been 20%.
Federal Newswire:
Does this have to do with what you mentioned of a change in building materials and our use of other materials besides wood?
Rob Gordon:
Yes. The single most important measure of our environmental quality is human wellbeing. What is critical to know is that the single most important resource that we have is human creativity.
With regard to building materials, it has played out over centuries with regard to the condition, number, and abundance of natural resources. When we create substitutes or new technologies, a lot of people on the left view them as bad, they're going to do more damage. But if you go back to about 1920, there was a German scientist, Fritz Haber, who invented a means of synthesizing nitrogen.
All of a sudden nitrogen that had previously been mined in Chile now could be synthesized everywhere, particularly easily. The method wasn't particularly difficult. It took a lot of research, but it gave birth to this tremendous change in agriculture because we could now fertilize things and we could use less land to grow more food. The productivity of the average farmer boomed, and this was because of human creativity coming up with a way to artificially fertilized plants.
Now we had the amount…of people that a particular farmer could feed, doubled, tripled, quadrupled. This not only meant that there was more habitat available, but it also made it possible [for us to be here] today.
Most of us do not provide or fend for ourselves as we have in generations past. We don't grow our own food, catch our own fish, raise our own livestock, or hunt our own game. All of that backbone of society, our food, fiber, minerals, and fuel comes from land and water. If you control that land, you have a means of controlling people.
There are a lot of people who just generally believe that plans that emanate from Washington are going to do things better than people left to their own devices. We know from a lot of human experience that that just generally is not true. When you understand these few things that human creativity is a key, not a problem. That natural resources are generally resilient and dynamic, that means you can use and manage them, and over time they can still be there.
If you're going to use and manage them, they're going to be there over time. The best way to do that is on a site and situation, specific basis. What works in Maine is not going to work in New Mexico and a one size fits all tailored federal plan to manage natural resources is either going to be successful or horribly unsuccessful. If you've got a thousand little laboratories of democracy with regard to managing land use going on, you end up getting better results. We learn what works and what doesn't.
Federal Newswire:
Why is it so hard to reform the Endangered Species Act?
Rob Gordon:
There's a couple of reasons. One, just on the surface of it, most people don't deal with it on a daily basis. The costs are imposed on a small group of people. Other people are told it's great. Don't you like eagles or manatees? They don't hear about the Kanab ambersnail or the Kretschmarr Cave mold beetle. It's marketed by what are called flagship species or charismatic megafauna on top.
Basically through massive marketing, people have accepted and don't question some principles. One is that everything's disappearing. We know that's not the case. All wildlife are not disappearing. We have good data and a lot of wildlife in America are doing well.
Are all habitats disappearing? No, that's not happening. We've probably got 70% of the lower 48 still in some natural state. That means we've used about 25% or so for crops, and we've used even smaller.
There's been several hundred years, numerous generations since Columbus landed, and we've only managed to convert maybe five or 6% to developed. It's a very small percentage, and people don't understand that. They think everything's gone. They also think, “Hey, there's a population explosion”, and with a population explosion comes more destruction, believing people are net negative.
All those things are wrong, but they shape the debate. Then the manner in which the administrative state works is with time, it accrues more and more power. Congress basically seeded its authorities in adopting specific regulations, and so the agencies craft them. Now, I'm very, very hopeful. One of the tools and one of the court decisions that allowed the agencies to do this was called Chevron deference.
Basically, I could go down and I could prove, “Hey, this plant or animal should not be on the list.” Here's one example, there was a plant put on the list, and after having it on the list, they discovered there were more than 135 million of them. Now, if that plant were still on the list and I had that data, I could go down and say that. I could submit the agency information asserting that, and basically through Chevron deference, they could say, “well, in our professional opinion, that doesn't really matter.”
What Chevron deference is, is that the court basically seeds the technical questions to the agencies presuming that they have the technical expertise and that they won't abuse that. They have. It's not just with regard to endangered species, but expansive wetlands interpretations basically across the board and in the environmental arena and in other policy arenas as well.
Federal Newswire:
How do folks find out more about the work that you're doing?
Rob Gordon:
Most of the stuff that I produce is for other institutes. I am working right now on some endangered species research, and that will be produced by another organization, and hopefully people will hear about it when it comes out. They'll be promoting it through the Western Caucus.
