The Endangered Species Act: Static law meets dynamic nature

Once passed, laws rarely change and when they do it takes an arduous effort that tests a rigid political and judicial system.  Nature, on the other hand, is inherently dynamic and we are usually powerless to stop it from changing even when we try.  So, when a law is designed to control nature, we can expect some conflict between static law and dynamic nature.  Forty years after the Endangered Species Act was passed, that conflict is becoming progressively more apparent and problematic.

San Franciscans recently had an opportunity to comment on the designation of 270 acres of city parkland as critical habitat for the endangered Franciscan manzanita which illustrated some of these conflicts.  This rare plant requires full sun, which predicts that all trees will be destroyed in those acres, as they were for the closely related, endangered Raven’s manzanita.  The seeds of both of these plants germinate only after fires, which may mean that prescribed burns will be required for the long-term survival of the plants.  Restrictions on recreational access are also likely.

Are these sacrifices worth making?  Are the prospects of the long-term survival of these rare plants good enough to justify these sacrifices?  That’s for you to judge.

The Antioch Dunes

Lange's metalmark butterfly, USFWS photo
Lange’s metalmark butterfly, USFWS photo

Let’s consider those questions within the context of the Antioch Dunes, a National Wildlife Refuge northeast of San Francisco which is the home of three endangered species, including Lange’s metalmark butterfly.   Antioch Dunes was designated as a national wildlife refuge in 1980, four years after the metalmark was given endangered status.

It is 55 acres along the southern shore of the San Joaquin River east of the city of Antioch.  Historically it was a system of enormous sand dunes that was an accumulation of glacial sands washed down from the Sierras over millennia.  Some of the dunes were as high as 120 feet.  Because it was a unique habitat, surrounded by different vegetation, it was home to many endemic species that existed only there.  As the dunes were diminished by decades of mining for building materials, those endemic species became progressively more rare.  The remaining dunes were fragmented into two segments separated by a gypsum plant that spews gypsum dust onto the plants.  This is just one of many factors that have decimated the population of plants and insects.

Lange's metalmark caterpillar on naked-stemmed buckwheat.  USFWS photo.
Lange’s metalmark caterpillar on naked-stemmed buckwheat. USFWS photo.

Historically, the dunes were unstabilized sand, known as “transporting dunes.”  The sand shifts in the wind, which some plants are specifically adapted to.  The host plant of Lange’s metalmark, naked-stemmed buckwheat, is such a plant that requires the shifting sands for its long-term survival.  The buckwheat is the only plant the metalmark will lay its eggs on.

The “creative destruction” of the shifting sands also helps to control the non-native weeds that compete with the native plants.

When Lange’s metalmark and two rare plants (Antioch Dunes evening primrose and Contra Costa wallflower) were given endangered status in 1976, the owners of the property assumed that the federal government would soon purchase the land for their long-term protection.  They sold most of the remaining sand in preparation for that sale.  The short-term consequence of endangered status was not positive because the sand dunes were further depleted by the rush to profit before the sale of the land to the federal government as a wildlife refuge.

Efforts to recover the population of Lange’s metalmark butterfly

Antioch Dunes evening primrose.  USFWS photo.
Antioch Dunes evening primrose. USFWS photo.

Managers of Antioch Dunes have trucked in tons of sand to restore the dunes.  They have aggressively managed the non-native weeds that compete with the host plant of the butterfly and other rare plants.  They use herbicides and prescribed burns in addition to hand-pulling the weeds.  They have planted thousands of the rare plants in an attempt to restore the population. 

In 1986, they closed the dunes to the public—except for a monthly guided tour—after the dunes were trampled by thousands of people trying to catch a glimpse of Humphrey, the whale that lost his way into the delta and had to be coaxed back out to sea by playing recordings of whale vocalizations.

After a one-day peak count of 2,342 butterflies in 1999, the population plummeted to only 45 in another one-day count in 2006.  Clearly something drastic had to be done to turn the decline around.  A captive breeding program began the following year.  A biologist at Moorpark Community College in Southern California captured a few ovulating females and carried them home to Moorpark to lay their eggs.  The story of how the butterflies and their offspring were tended by students at the college is mindboggling:

“Each [of the 27 newly-hatched butterflies] had to be fed two or three times a day, by hand, with a Q-tip soaked in honeywater—an aggravating job that wound up taking all morning.  In the afternoon, the [new generation of butterflies brought from the dunes] were transferred onto potted buckwheat plants so they could keep laying eggs.  (Students assemble homemade enclosures for each butterfly by shoving the buckwheat through the bottom of an upside-down quart-sized clear plastic deli container…ventilating it, and sealing it off from pests with duct tape and toilet paper.)  The other butterflies, meanwhile, spent their afternoon split into groups of four or five.  The hope is that these adults will pair off and breed, and students sign up for one-hour ‘mating watch’ shifts to keep them under observation…The students also have to move the containers frequently from place to place, in and out of shade, to keep the butterflies inside from getting too hot or too cold, and to try to catch a certain mysterious quality of dappled sunlight that appears to put the insects in the mood. “ (1)

This labor-intensive, tedious exercise has been done annually since 2007.  In 2008, the enterprise was able to reintroduce 30 butterflies to Antioch Dunes.  In 2012, the total annual count of butterflies at Antioch Dunes was 32, up from 28 the previous year.  Not much to show for the effort of the Moorpark students and faculty.

What are the prospects for survival of Lange’s metalmark butterfly?

As you might expect, the answer to that question varies depending on who you ask.  Two of the oldest, most experienced butterfly experts—Jerry Powell (Emeritus Professor, UC Berkeley) and Rudi Mattoni—say it’s hopeless.  They find the continuing effort laughable.

Powell has been studying the Antioch Dunes for decades.  He sees the selection of Lange’s metalmark as the sole insect species on which to lavish attention and support, extremely stupid.  All the insect populations on the Antioch Dunes have been decimated by encroaching civilization.  All the plants and animals at the Dunes form a complex ecosystem that can’t be separated into a few species that can be saved in isolation from their community.  Powell was interviewed by the author of Wild OnesHe told me that any work to recover the Lange’s is decades beyond the point of diminishing returns, and even if it were possible, the agency’s strategies were, in his opinion, completely misguided.”

Mattoni spent decades trying to save several species of rare butterflies in Southern California from extinction.  At the age of 76, he abruptly threw up his hands and moved to Argentina.  The author of Wild Ones interviewed him via Skype:  “’There’s a clause right near the top [of the Endangered Species Act] that nobody remembers,‘ he said, ‘And it’s the whole soul of the Endangered Species Act.’  It begins, ‘The purposes of this Act are to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved.’”  Then Mattoni explained why he walked away from a long career of trying to save rare butterflies, “The butterflies were just a means to preserve wild places, but all the attention got lavished on the butterflies themselves…Once the habitat is gone, it’s gone,” Mattoni said.  ‘It’s too complex—you can’t put these things back.’”

So, where does the author of Wild Ones find a more optimistic viewpoint for the survival of the metalmark or least ideas about what to do to save it?  He interviews Brent Plater, former lawyer for Center for Biological Diversity, now owner of his own legal-suit machine, Wild Equity Institute.  Plater tells him that he is preparing to sue to prevent the opening of gas-fired energy plants near Antioch Dunes.  The plants will be less polluting than petroleum fuel plants, but Plater isn’t a “better-is-best” kinda guy.  He doesn’t want ANY energy producing plants near the Antioch Dunes because they increase nitrogen levels in the air and nitrogen encourages the growth of non-native weeds that compete with the rare native plants.  The Wild Equity website announces that suit was filed on July 24, 2013, against EPA for approving permits to the builders of the new energy plants.

The Shifting Baselines Syndrome

What distinguishes the optimists from the pessimists in this debate?  Age is one difference.  Wild Ones tells us about the “shifting baselines syndrome” which explains why the old scientists are less likely to be optimistic than the young lawyer.  We form our opinion of what is “normal” in nature when we are young.

When Professor Powell and Mr. Mattoni were young the Antioch Dunes were teeming with insects, the sand dunes were nearly intact, and the native plants were still thriving.  Compared to that baseline, the Antioch Dunes are totally trashed and the prospect of returning them to their previous glory seems preposterous to them.

Mr. Plater’s view of what is normal for the Antioch Dunes is a small population of butterflies, native plants overrun by non-native plants, and sand that was trucked in and bulldozed into dunes. It’s not difficult to improve on that landscape.  Reducing nitrogen levels in the air seems a suitable improvement.

Furthermore, Powell and Mattoni are no longer earning their living trying to save rare butterflies, while Mr. Plater’s suit will fill the coffers of his non-profit institute if he wins or even if he just tries.  He and his colleagues were recently awarded $386,000 for their legal “expenses” for their suit on behalf of two endangered species at Sharp Park near San Francisco despite the fact that they didn’t win that suit.  When one earns one’s living trying to save rare butterflies, surely one believes it is a worthwhile effort.

What is worth doing?

The author of Wild Ones doesn’t offer a particular answer to this question, but he does point in a direction.  He visits two neighboring populations of metalmark butterflies.  One population in Mendota, about 120 miles away from the Antioch Dunes, looks identical to the Lange’s metalmark, in his opinion.  But DNA tests say it’s not identical to the Lange’s metalmark.  The metalmark population near Mt. Diablo, just ten miles away, looks less like the Lange’s metalmark, but its DNA is very similar, just .5% (one-half percent) difference in their DNA.

The proximity of these sub-species of metalmarks illustrates one of the issues with the Endangered Species Act.  DNA analysis, which was not readily available when the Endangered Species was passed, is making it possible to split species into more and more sub-species.  The smaller the populations of sub-species, the more likely they are to dwindle as the climate changes and habitat disappears.  The Endangered Species Act would be a less blunt instrument if it applied to species, rather than to small, isolated populations of sub-species.

The author of Wild Ones tells us about a breeding program for a butterfly in which markedly different physical characteristics were achieved in just seven generations.  He wonders if by selective breeding of the butterfly that is very closely related genetically to Lange’s metalmark, we would have a butterfly that not only looked identical but would be nearly identical genetically.  Echoes of Frankenstein come to mind.  Is it a freak show or is it a way to resurrect the Lange’s metalmark with a lot less fuss?  Again, we leave that to you.


Jon Mooallem, Wild Ones, Penquin Press, New York, 2013

3 thoughts on “The Endangered Species Act: Static law meets dynamic nature”

  1. Great excerpt… So many issues were raised in a clear way in this work… What’s not mentioned is that our socio-economic reality gives near full \exemption to private landowners when it comes to ecological viability/functions.

    The laws are written in a way that only undeveloped land / open space must carry the burden of protecting rare, threatened and endangered species. Once you make “improvements” to the land it for the most part ceases to be considered a component of the ecosystem. But what happens in people’s backyards is essential to bay areas future ecosystem because people’s backyards is 85% of the bay areas remaining ecosystems.

    For example what if whole neighborhoods situated in ideal SF manzanita growing areas were asked to voluntarily cultivate them? Or even given a tax credit if they can prove they’re growing them and propagating more and more every year? As in we need to starting doing more to crowdsource conservation efforts!

    And what if habitat for Lange’s Metalmark was created in suitable neighborhoods as a way for a neighborhood to create jobs, as well as recover unique genetic information so its not lost?

    Point being, it often seems like folly protecting species on the brink of extinction, but it creates meaningful jobs and the real problem is not our desire to help these species, but that humans are still incredibly ignorant, obstinate and don’t know how to relate to natural systems function.

    In the SF Bay Area the whole notion of backyard wildlife is not a popular notion yet. And the whole notion of managing our tiny little parks and open space area as wildlife island is still in a caveman era of sophistication/funding mechanisms.

    Which comes back to your comment about “static” plans to “save” rare manzanita and the fact that critical habitat is suppose to designate critical areas on private property just as much as on public property. But that often doesn’t happen because the furious real estate developers will scream expensive attorney and huge liability for everyone involved. That’s why the monied interest/objective will always be to lock in a guarantee / a “no surprises” clause in their agreements. But nature doesn’t work that way. But healthy natural systems are the essence of surprise and adaptation, it’s never static, never permanent…

    That’s why during the battles for the spotted owl scientists came up with Adaptive Management Areas… The system creates a series of feedback loops via constant analysis via answering a diverse range of questions on what’s working and isn’t working and then they change the agenda accordingly. This is heavy-duty observation not manipulation. Of course when there’s conflicting opinions/agendas it’s hard for a management plan to be fluid and dynamic in the way that nature most needs, usually it’s driven by the funding agenda of poison makers and petro-based equipments operators.

    All these primitives foolish destructions in our last tiny little “natural areas” is bewildering… And to look at the big picture and see how much of the landscape is exempt from the cultivation of biodiversity forever? Is it any wonder our last open spaces are the battlefields of competing nature manipulation/restoration agendas? And it seems everyone knows someone who believes they finally figured out how to save nature in our last natural area when in truth none of them have figured out much of anything about nature at all…

  2. Your suggestion that post-ESA genetics makes too fine distinctions for the ESA doesn’t make any sense in this context because Lange’s metalmark was identified as a subspecies in 1938, thirty-five years prior the ESA being created.

    Your suggestion that 0.5% genetic difference is not important, or not sufficient to determine a subspecies is entirely without scientific merit. The human genome is only 1% different from the chimpanzees. Would you classify humans and chimps as the same species?

    The only “static” aspect of the ESA I can divine from your essay is its clear requirement that we try to save the metalmark from extinction. I suspect you’d find few scientists who equate “flexibility” with driving species extinct.

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