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Defying the Endangered Species Act at State Level is Bad Science and Bad Politics


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Bob Mallard in front of the East Machias River. Photo Emily Bastian

By the time the federal government lists a species as threatened or endangered under the Endangered Species Act, it has been deemed to be at risk of going extinct across all or a significant portion of its native range. State ESA laws are not intended to challenge federal listings, but allow for state-only listings, and up-listing (threatened to endangered), when the situation at the state level is worse than it is at the national level. Failing to list a federally-listed species at the state level flies in the face of the intent of both federal and state law.

Maine has two state-level ESA programs: Maine Endangered Species Act and Maine Marine Endangered Species Act. MESA was enacted in 1975, two years after the federal ESA was established. It was managed by the Maine Department of Inland Fisheries and Wildlife and the Maine Department of Marine Resources depending on the species. MMESA was enacted in 2003 to separate inland from marine species. At that time, all previously listed marine species were transferred from MESA to MMESA, and by default from the DIF&W to the DMR.

From 1975 through 1994, federally listed species were automatically listed at the state level under MESA. In 1995, through LD 428, the Maine Legislature eliminated the mandatory listing provision, requiring that all new listings be approved by the legislature. In 1996, the legislature passed an emergency bill, LD 1645, that changed the designation of endangered species from the Secretary of the Interior to the Commissioner of the DIF&W.

Under current Maine law, requesting the listing of any species under MESA or MMESA is at the discretion of the DIF&W and DMR commissioners, respectively. Once requested, the Maine legislature has the sole authority to act or not act, placing the responsibility for state-level ESA listing in the hands of politicians, not scientists. And to be clear, unless the DIF&W or DMR commissioner suggests a listing, it never gets to the legislature.

Thirty-six states mandate state-level listing of all federally listed species found in their respective state, and at the same level or higher. In four other states the statute says that state listing of federally listed species is “recommended” or “highly recommended.” Only 10 states, including Maine, do not require or even recommend listing federally-listed species at the state level.

Currently, just 10 out of 16 species listed as threatened or endangered at the federal level that are found in Maine are listed at the state level. The 6 that are not included are Atlantic salmon(2009), Atlantic sturgeon (2012), blue whale (1970), Canada lynx (2000), green turtle (2016), and red knot (2014). Two species would fall under MESA and four under MMESA, and all except the blue whale were listed at the federal level after Maine removed the mandatory listing clause from MESA.

The most egregious omission from Maine’s ESA is Atlantic salmon. Classified as endangered at the national level, wild native Atlantic salmon in the United States persist only in Maine, and they are hanging by a thread. Restoration efforts in Connecticut, Massachusetts, New Hampshire and Vermont have been mostly suspended, leaving Maine as the last hope we have of preventing Atlantic salmon from going extinct in America.

Atlantic salmon are listed as a Priority 1 Species of Greatest Conservation Need under the DIF&W-authored 2015 Wildlife Action Plan. This is two levels below endangered, and the same classification given to Arctic charr (blueback and Sunapee trout,) a rare but not critically endangered species in Maine. Wildlife Action Plans are required by the federal government to be eligible for certain grants.

Recent requests by conservationists, native fish advocates, scientists, and former DIF&W, DMR, and Maine Department of Environmental Protection administrators and biologists to list Atlantic salmon as endangered at the state level were declined. The first request was sent to the DIF&W and was specific to MESA. Interestingly, the replywas signed by both the DIF&W and DMR commissioners, and amounted to a refusal in regard to MESA and MMESA, even though the request was specific to MESA.

The DIF&W noted that Atlantic salmon were a marine species and therefore not eligible for protection under MESA. They went on to say that since the DIF&W and DMR were cooperating with the federal government, “a recommendation for state listing of Atlantic salmon by DMR does not offer any conservation benefits.” They also said, “The listing does however cause a workload issue that does not justify the ends.” Interestingly, and in direct conflict with what the DIF&W said, the MESA web page states:

“Separating [listing and management] allows [the DIF&W] to recommend species for listing based solely on biological facts, thus purely reflecting the species’ likelihood of extinction within Maine. The Department makes the decision without being constrained by political pressures; limits on agency funding, staffing, or management capabilities; the ease or difficulty of managing a species; or by a species’ potential responsiveness or lack of responsiveness to management.”

The coalition then sent a formal letterto the DMR requesting that they consider listing Atlantic salmon as endangered under MMESA. As expected, the request was refused as it had been earlier. The DMR referenced its initial response, while stating that a listing would be “symbolic” and of no “meaningful benefit.” And again, the implication was that everyone was doing everything they could to prevent Atlantic salmon from going extinct.

The coalition also sent letters to both the DIF&W and the DMR rebutting their refusals to list Atlantic salmon at the state level. These letters outlined specific concerns, as well as challenged the appropriateness of addressing the request specific to the DIF&W and MESA with a pre-emptive and unsolicited response/refusal in regard to the DMR and MMESA.

No one can challenge the basic premise that Atlantic salmon are endangered. The population is supported almost solely through stocking, and by some estimates fewer than 100 truly wild Atlantic salmon, those born in nature, return to Maine rivers in any given year. And even then, it is more likely than not that one, or both, of their parents came from a hatchery. By default, if Atlantic salmon are endangered at the federal level, and they only exist in Maine, they are endangered at the state level in Maine.

If MESA and MMESA do not offer any conservation benefits for federally listed species, why do we list any of them at the state level? As noted above, 10 of 16 federally listed species present in Maine are listed at the state level under either MESA or MMESA. And when it comes to protecting a species from extinction, workload should not be a consideration, a position that the DIF&W has documented on their website.

As for symbolism, it plays a huge role in regard to how something is perceived, and what we are willing to do to save it. Would we have saved the bald eagle from the brink of extinction if it was not our national bird? Would we still have bison, our national mammal? And while we do not have a national fish, if we did, you could make a strong argument for the Atlantic salmon, known as the King of Fish and the Presidential Fish.

The underlying issue here is whether Maine is doing everything it can to prevent the extinction of Atlantic salmon (and other species,) and if not, would a state-level listing help make that happen? The belief of those involved in the requests to the DIF&W and the DMR to list Atlantic salmon at the state level believe the answers to those questions is no, we are not doing everything we can to prevent the extinction of the King of Fish, and yes, a state-level endangered listing under MMESA would help support recovery efforts.

Among other concerns, the coalition noted that the DIF&W was stocking nonnative brown trout in critically important Atlantic salmon waters, allowing the use of high-impact bait which comes with a 30 percent incidental mortality rate, failing to protect juvenile salmon from species misidentification, protecting nonnative bass, and failing to control invasive fish. The DMR is not protecting sub-adult Atlantic salmon from recreational anglers, and many state-owned dams lack safe fish passage.

Unable to convince the agencies responsible for the well-being of Atlantic salmon and other at-risk species to act in regard to a state-level listing, the original coalition, along with a number of other organizations that have signed on, is taking their case to the Maine legislature. The coalition is working with legislators in regard to LD 883: An Act to Protect Endangered Species Whose Life Cycles Include Maine Land or Waters, to reinstate the mandatory state-level listing of federally-listed species.

To be clear, while nothing is hampering Atlantic salmon recovery more than the lack of fish passage, including state-owned dams, at this point every fish matters and failing to protect them is compromising restoration efforts. A state listing would help get the DIF&W and DMR on the same page, while driving home the seriousness of the situation and the importance of Atlantic salmon.

It’s time for Maine to put science ahead of politics, and fully embrace the intent of the federal and state ESA programs. The current application of MESA and MMESA is arbitrary and inconsistent, and indefensible when it comes to a species like Atlantic salmon that exists in Maine, and is not only federally endangered, but critically endangered.