Central Oregon Irrigators Are Violating The Endangered Species Act By Harming The Spotted Frog

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Central Oregon Irrigators are Violating the Endangered Species Act by Harming the Spotted

Frog

Introduction

As central as any other aspect of America’s heritage, private property ownership and

control defines who the American person is, and is a major driving force for the society. The

highlight is emphasized in Archer’s book “architecture and suburbia,” where the central focus is

that individual freedom, autonomy, and individuality are closely tied to the ownership of

property in the American society (296). The indication is that property ownership and control,

which is in some cases conflicting with environmental and species protection is an organizing

principle for the people and the government. In many instances, environmental laws challenge

the American views on private property, often times imposing restrictions on the use of land and

other resources, which should be a private choice, assigning more significance to the public

benefit. One of the laws that have triggered a very direct impact on private property use and

management is the Endangered Species Act (ESA), which imposes restrictions on the use and

management of natural resources such as water and land. One case that highlights the restricting

effects of the Endangered Species Act is that of Washington Ranchers, who are forced to

manipulate harvest times and water movement for the benefit of threatened frog species in the

area (Pacific Legal Foundation). This report explores the ways Central Oregon irrigators are in

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violation of the Endangered Species Act; due to the ways, their operations are harming the

spotted frog species found in the area.

Background to the Scope of Endangered Species Act and its Effectiveness

The Endangered Species Act (ESA) is a law passed by the Congress in 1966, to bolster

the efforts already in place to protect endangered species (Baur, Irvin and American Bar

Association 12). The law provides directives on the conservation, restoration, protection, and

propagation of the species at the risk of extinction, including native fish, wildlife, and other

animals (Baur, Irvin and American Bar Association 12). The major challenges in the way of the

adoption of the law are the fact that it challenges many of the established practices of private

property use and management, including farming and irrigation activities. Over the years that the

law has been in place, the legal battles and other attempts to safeguard property rights have

influenced the recent changes of the law, and also the prospective benefits that the species it

protects can offer. Using legal channels, the efforts made by property owners challenging the law

includes mounting political pressure aimed at changing the law and the models used for its

administration (Baur, Irvin and American Bar Association 31). Fortunately, the years of

controversy and activism has transformed the ESA law into one of the most effective and

innovative environmental protection laws. Over the years, the law has proved effective due to the

ways it offers a flexible species protection model and strategies through the approach of habitat

conservation.

The Problems Central Oregon Irrigators Create, Indicating the Violation of the Act

Many accounts have explored the various problems and issues cited as violations of the

endangered species Act. In that line of though, exploring the scope of the problem indicates

probable cause. The account by Perkowski and the court case between the “Center for Biological

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Diversity” and the “U.S. Bureau of Reclamation” explore the scope of the problems. In the end,

the court case was settled, but that does not indicate that their practices of the irrigators did not

amount to a violation (Perkowski). The account is that the U.S. Bureau of Reclamation violates

ESA through its continued operation and maintenance of Wickiup Dam and Crane Prairie Dam,

and the respective reservoirs, which adversely impact the spotted frog species in the area. The

most affected area, according to the accounts is the Upper Deschutes Basin, due to the ways the

operations in the area alter the normal flow of water, and thus alter the habitats close to the

reservoir and further downstream along the river (Advocates for the West 1; Perkowski). The

adverse effects of the activities present the potential of species loss and compromise the

wellbeing of the frog species.

The effects of the operation and maintenance of the reservoirs and dams include that in

downstream habitats and those surrounding the reservoirs, leaves tadpoles and eggs stranded and

shriveled. Further, the limited flow of the river during the winter season reduces the habitats of

the spotted frogs in the areas downstream to the reservoirs, which further reduces the species’

ability to recreate and regenerate to restore lost populations (Perkowski). Additionally, the

manipulation of the flow of the river’s water makes it more challenging for the frog species to

move from one site to another, and thus limiting their opportunity for genetic exchange. The

resultant problems include that the spotted frogs’ species has changed to form distinctive sub-

populations in the various habitats, due to the limited levels of genetic exchange (Advocates for

the West 1). The wide scope of the problem calls for a closer examination of the specific

violations that the continuation of irrigation activities presents.

In a more specific way, the advocates presenting the case challenging the continued

operation and maintenance of the two dams and the respective reservoirs noted the specific

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impacts that the activities have triggered. The reported impacts include the reduction in the

distribution, numbers, and genetic diversity of the spotted frog species found at the Upper

Deschutes River Basin (Advocates for the West 1). Further, the activities of the irrigators have

continually injured and led to the death of individual frogs and tadpoles, and also the loss of egg

masses due to the lack of water, in the areas where it should have been available. Further, the

Bureau of Reclamation (BOR) did not do the necessary consultations with the US Fish and

Wildlife Services regarding the impacts that the activities done at the two dams would have on

Oregon spotted frog. More importantly, despite the documented failure, the BOR continues to

operate the Wickiup and Crane Prairie dams and reservoirs, despite the indisputable evidence

that doing so harms the spotted frogs’ habitat and thus the entire species (Advocates for the West

2). BOR’s failure to do the necessary consultation and to investigate the problems that operating

the two facilities causes; signifies the likelihood that they are violating the act. Further, the

harmfulness of the activities warrants the pronouncement of injunctive action to provide the

necessary protection for the species, and also stop the violation of the law, as the necessary

consultations are done.

Evaluation of the Violation of the Endangered Species Act by Central Oregon Irrigators

This section explores the actions of the Central Oregon irrigators, towards establishing

whether their actions amount to the violation of the Endangered Species Act. The eleven sections

of the Act highlight the provisions that provide a framework for the protection of the

environment and regenerating the aspects that are lost (Totoiu et al. 11). Firstly, the basic policy

scheme provides crucial guidelines on the species it protects, and those requiring recovery,

namely those that are threatened or facing the threat of extinction. The ideal place to start is

determining whether the actions of the irrigators amount to a violation. In essence, it is crucial to

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explore whether the spotted frog species is categorized as threatened or facing the threat of

extinction. According to British Columbia’s “Ministry of Water, Land and Air Protection,”

Oregon spotted frog is an endangered species facing the threat of extinction, and that answers the

fundamental question (2).

The reasons underlying the endangerment of the frog species is primarily the loss of its

wetland habitat, due to the development projects that come with the spread of urbanization

(Goble, Scott and Davis 229). In other areas, the wetlands have been drained, diked, or filled to

create spaces for raising livestock or holding water for purposes such as irrigation. The second

reason is the one that clearly explains the threat facing the frog species in Central Oregon, where

the water that supplied the wetlands is held in the reservoirs, leading to the loss of the habitat

(Perkowski). With the information in mind, it is evident that Oregon spotted frog falls under the

endangered species category, and threats to their existence amount to the violation of the

Endangered Species Act. The facts above indicate that the irrigators in the area are in violation of

the Act, and that warrants that the government and other agencies take the action required to

challenge the activities.

Secondly, section 4 of the Endangered Species Act outlines the course and process to

take to designate a particular area or environment as a critical habitat. The process entails the

aspects of the particular environments that are crucial to the survival of the species in question.

The process of identifying crucial habitats is not limited to federally owned and controlled lands

such as forests, but also the private lands and areas owned by private landowners (Goble, Scott

and Davis 229). The provision clarifies the course of identifying whether the central Oregon

irrigators are acting in ways that violate the ESA, considering the types of lands covered by the

development in question. The dams and reservoirs cited as the cause of the threats to the loss of

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habitat in Central Oregon fall under different types of ownership, but as section 4 highlights, the

ownership of the habitat is not an important question (Goble, Scott and Davis 229). The nature of

the areas around the dams and reservoirs, as well as, those downstream indicates that the area is a

critical habitat for Oregon spotted frog. The area meets the threshold of categorization is a

critical habitat, considering that the river supplies the water needed to render the areas around the

river, dams, and reservoirs wetlands. Considering that the spotted frog, according to British

Columbia, the species is under threat due to the loss of the wetland habitat, it is clear that the

area is a crucial habitat that deserves protection, so as to restore the species (2). The fact that the

loss of the critical habitat is the cause of the loss of the species, in turn, clearly points out that the

irrigators are in violation of the ESA.

Thirdly, the Endangered Species Act envisioned a situation such as that in Central

Oregon, considering that the Bureau of Reclamation (BOR), which is a government institution

under the department that oversees the management of water resources. The directive is provided

in section 7 of the Act, prohibiting the actions by the government or a government agency that

can compromise the existence of an endangered or threatened species (Baur and Irvin 105).

Further, the section prohibits any actions by the government that threatens to modify or destroy a

critical habitat. The provision was adopted in anticipation of the actions of groups such as

farmers, who may call for government involvement in the attempt to use a habitat such as a

wetland, for example, development purposes. In the case of Central Oregon’s farmers, the

involvement of the Bureau of Reclamation in safeguarding the actions of the irrigators is clearly

anticipated in the law, and that demonstrates the violation of the Act. In essence, it is not

excusable that the dams and reservoirs are managed and operated by the BOR, a government

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agency, considering that the use of the habitat threatens its loss and thus the loss of the frog

species (Baur and Irvin 105).

In light of the challenge that the government agency presents in the way of habitat

protection, it is clear that both BOR and the irrigators are violating the Endangered Species Act.

In line with the provisions of the Act, the activities should be petitioned, which will address the

current violation, and protect the frog species under threat. Further, wherever it is necessary that

a critical habitat is put to alternative use, the government agency or institution should consult

with the National Marine Fisheries Service or the Fish and Wildlife Service, to get permission

for use (Baur and Irvin 162). Following the consultation, the BOR and the irrigators seeking to

use the land can get permission or denial of use, depending on the evaluation by the two

responsible agencies (Baur and Irvin 162). The highlight by that the BOR did not consult the

Fish and Wildlife Service on the use of the land indicates that the violation of the Act, and thus

there is need to take the necessary action (Advocates for the West 2). The Bureau of Reclamation

further reinforces the fact that the use of the land amounts to a violation of the Act.

Lastly, in section 9, the Act prohibits the activity of any person or agency that takes the

species listed as threatened or endangered, unless they are permitted to do so. According to the

guidelines of the Act, the word “taking” a listed species is broadly used to mean harming,

harassing, shooting, hunting, trapping, killing, capturing, or wounding, among other actions that

harm animal and plant species (Baur and Irvin 6). In light of the directives provided in section 9

of the Act, the activities of both the Bureau of Reclamation and the irrigators operating in the

Central Oregon area. The evidence of the violation of the Act is that the activities of the

irrigators are harmful to the existence and wellbeing of Oregon spotted frog species that live in

the area, as noted by Advocates for the West (2). As an example, by redirecting water from the

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area, the BOR and the irrigators lead to the death of frogs and eggs, which is harmful to the

species. Overall, the evidence of a violation warrants taking corrective legal action.

Conclusion

The practice of property ownership is essential to the identity of the American people and

is thus a crucial organizing principle for both the people and the government. Unfortunately,

some laws threaten the rights and access to property ownership and one such law is the

Endangered Species Act (ESA). The Act has attracted controversy since it was passed during the

1960s, mainly due to the ways it curtails private property rights. Over the years that the Act has

been in place, it provides a crucial framework for the protection of the environment, although it

has also been challenged and changed in some ways. From the review of the actions of the

irrigators operating in Central Oregon, the highlights gathered include that they create various

problems that demonstrate the violation of the act. The problems include the diversion of water

from the areas that it is supposed to feed, to keep them a wetland habitat. The evaluation of the

problems in light of the Act showed that the irrigators and the Bureau of Reclamation violated

the Act, and thus warrants the attention of environmental protection agencies.

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Works Cited

Advocates for the West. “Center for Biological Diversity (Plaintiff) v. U.S. Bureau of

Reclamation (Defendant).” Biologicaldiversity, 2015. https://goo.gl/KMKGFK

Archer, John. Architecture and Suburbia: From English Villa to American Dream House, 1690-

2000. Minneapolis: University of Minesota Press, 2005. Print.

Baur, Donald, and Irvin, William. Endangered Species Act: Law, Policy, and Perspectives.

Chicago, Ill: American Bar Association, Section of Environment, Energy, and Resources,

2010. Print.

Baur, Donald, Irvin, William, and American Bar Association. Endangered Species Act: Law,

policy, and perspectives. Chicago, Ill: American Bar Association, Section of

Environment, Energy, and Resources, 2010. Print.

British Columbia. Ministry of Water, Land and Air Protection. Oregon Spotted Frog: This

endangered amphibian is at risk due to loss of shallow wetland habitat to agriculture and

development. British Columbia Government, 2002. https://goo.gl/XztMik

Goble, Dale, Scott, Michael, and Davis, Frank. The Endangered Species Act at Thirty.

Washington: Island Press, 2006. Internet resource.

Pacific Legal Foundation. “Illegal Endangered Species Act Regulation Makes Washington

Ranchers a Threatened Species.” YouTube, uploaded by Pacific Legal Foundation, 4 Aug

2016, https://www.youtube.com/watch?v=kMHjn91AyHY

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Perkowski, Mateusz. “Oregon spotted frog lawsuit settled.” Capital Press, 28 Oct. 2016.

https://goo.gl/iwnKqY

Totoiu, Jason, Bourdreaux, Paul, Hamann, Richard, Grosso, Richard, Macdonald, Laurie, and

Rohlf, Daniel. “Protecting Florida’s waters and wildlife through the endangered species

Act: White paper.” Everglades Coalition Conference, 12 Jan. 2013.

https://goo.gl/HQzbvm

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