In the 1950 movie version of Grimm’s Fairy Tale, the cruel stepmother scolds Cinderella, “You clumsy little fool – clean that up!” But of course, it was the stepmother, not Cinderella, who made the mess. Sometimes it seems like the world is full of people who expect others to clean up their messes.

It is a recurring theme among critics of federal agencies, which often regulate and even fine others for environmental damage, but rarely admit the role they themselves played in creating the problem. A lawsuit against the U.S. Fish and Wildlife Service (USFWS), filed by the Rocky Mountain Elk Foundation and the Property and Environment Research Center (PERC) has again focused attention on an agency blaming everyone but itself.

The suit accuses USFWS of impairing the recovery of threatened and endangered species by insisting on a process that ignores science and hinders habitat restoration. The Endangered Species Act of 1973 created two distinct lists for protection. Species in imminent danger of extinction throughout all or most of their range were to be listed as “endangered,” and those that might some day become endangered were to be listed as “threatened.” The regulatory process prescribed by Congress was completely different for the two lists. Killing any endangered species was prohibited, along with any action that degrades their habitat. Threatened species, though, could be “taken” and their habitat altered in certain circumstances, to be defined by a “4(d) rule.” USFWS was to design science-based regulations tailored to individual species, recognizing the coexisting human economic activity, and determine acceptable levels of “take.”

Before the ink was dry on that law, USFWS decided that was too complicated, and instead adopted what it called the “blanket 4(d) rule” bypassing that prescribed process, allowing it to ignore science and species-specific considerations, and simply enforce “threatened” and “endangered” species listings the same way. There has been almost no distinction between the two categories for 50 years, and the result is one of the most dismal failures in the history of conservation. By the end of 2023, more than 2,300 species had been listed as threatened or endangered and only 1.8 percent de-listed.  71 species are now considered “recovered” but that includes 8 that it turned out were listed by mistake, 13 that further research proved were never separate species, and 11 were extinct. Only half of the species listed even have recovery plans,

but all have federal protection and people can go to jail for killing them, even accidentally, or altering their habitat without permission.

Former USFWS Director Sam Hamilton figured out the importance of the right incentives. In a 2010 speech, he explained that there is no mechanism for private landowners to benefit from investing in species conservation. He said, “The incentives are wrong here. If a rare metal is on my property the value of my land goes up. But if a rare bird is on my property the value of my property goes down.”

As the new lawsuit suggests, “two-thirds of endangered and threatened species depend on private lands for habitat, making it critical to engage landowners in effective habitat protection and restoration efforts.” The “blanket rule” does the opposite. It imposes the most severe restrictions on landowners, whether the species is listed as endangered or threatened. So as my friend Jonathan Wood, a PERC vice president, puts it, “Rather than motivating stakeholders to invest in a species’ recovery by lifting the most stringent restrictions when its status improves, the blanket rule makes states and landowners indifferent to whether a species is endangered or threatened, improving, or declining. This penalizes and discourages states and landowners from maintaining or restoring wildlife habitat.” It is time for the USFWS to recognize that its own rules and procedures are hindering the recovery of listed species. Time for a good look in the mirror.

It isn’t the only agency that ignores its own role in creating problems for which it seeks to regulate and punish others. Think of the Forest Service’s failure to manage national forests properly, and the resulting catastrophic fires that have decimated 200 million acres over the last 30 years. Or the Bureau of Reclamation failing to refill major reservoirs in the Upper Basin of the Colorado River during wet years, then trying to punish water users by withholding water during dry years. Or the EPA flooding the Animas River with toxic waste from its disastrous blowout at the Gold King Mine, while fining other companies millions for similar accidents.

This new lawsuit is right on target in suggesting, a little more politely than Cinderella’s stepmother, that the USFWS admit it helped make this endangered species mess, and should at least help clean it up.

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