BONUS - David Willms || Is It Time To Amend The Endangered Species Act?

Summary

Blood Origins Podcast Summary: BONUS - David Wilms || Is It Time To Amend The Endangered Species Act?

Release Date: March 24, 2025

In this bonus episode of Blood Origins, host Brittany engages in a deep and insightful conversation with David Wilms, an esteemed expert on the Endangered Species Act (ESA). As representatives of Blood Origins Inc., both discuss the complexities surrounding the ESA, its historical context, current challenges, and the potential amendments proposed to enhance its effectiveness. This comprehensive summary captures the key points, discussions, insights, and conclusions drawn during the episode.

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1. Introduction to the Endangered Species Act Amendment

Brittany begins the episode by highlighting the ongoing debates and litigations surrounding the ESA, particularly focusing on the listing and delisting of species like wolves and grizzly bears. She introduces David Wilms, Associate Vice President of Public Lands for the National Wildlife Federation, and underscores his extensive expertise in ESA-related matters.

“[...] If you are immersed in the shooting sports industry and pay close attention to every single detail, you know our products are built right and stand up to everyday use.” — Midway USA Representative [00:00]

Note: The initial segment includes promotional content which is skipped in this summary.

2. The Historical Evolution of the ESA

David Wilms provides a comprehensive overview of the ESA's history, tracing its origins back to the 1966 Endangered Species Preservation Act. He explains the subsequent amendments in 1969 and 1973, which transformed the act into a more robust and enforceable legislation.

“It passed the Senate unanimously, and it passed the House 390 to 12. And I mean, it was pretty amazing.” — David Wilms [13:56]

Key Points:

• 1966: Introduction of the Endangered Species Preservation Act.
• 1969: Expansion to include more species and international conservation efforts.
• 1973: Adoption of the current ESA, recognized as one of the most powerful species protection laws globally.

3. The 1982 Amendments and Their Consequences

Wilms delves into the 1982 amendments, which introduced strict timelines for listing species and inadvertently led to increased litigation. Environmental groups exploited these deadlines, overwhelming the Fish and Wildlife Service (FWS) and leading to contentious court battles.

“They just kind of randomly out of thin air, like if you can go back and look at this and there's just not a lot of rhyme or reason or explanation.” — David Wilms [22:19]

Key Points:

• Introduction of 12-month deadlines for species listing.
• Environmental groups submitted numerous petitions to trigger these deadlines.
• Resulted in court-ordered settlements, overwhelming FWS resources and influencing species listing priorities.

4. Introduction to the ESA Amendments Act (HB 1897)

Brittany introduces the ESA Amendments Act, proposed by Rep. Bruce Westerman, aimed at addressing the shortcomings introduced by the 1982 amendments. The bill seeks to codify the National Listing Work Plan, thereby reducing unnecessary litigation and enhancing species recovery efforts.

“There's a lot of data that shows you'll move a lot faster towards actually recovering and delisting species.” — David Wilms [46:55]

Key Points:

• National Listing Work Plan: Prioritizes species based on scientific need.
• Codification of Policies: Ensures FWS adherence to prioritization without immediate litigation threats.
• Bipartisan Support: Although currently supported mainly by Republicans, the bill aims for broader appeal through its practical provisions.

5. Case Studies: Wolves and Grizzly Bears

The discussion shifts to specific species entrenched in ESA debates: gray wolves and grizzly bears. Wilms explains the complex scenarios surrounding their listing, delisting attempts, and the political maneuvers that have influenced their protection status.

“Wolves are an interesting, interesting deal because remember we said the ESA has been amended a few times.” — David Wilms [38:19]

Wolves:

• Multiple Delisting Attempts: Over 10 attempts with varying success; only a few delistings survived judicial review.
• Distinct Population Segments (DPS): Challenges in defining and managing DPS across geographical boundaries.
• Political Influences: State-level management plans often clash with federal policies, leading to litigation and reclassification efforts.

Grizzly Bears:

• Recovery Goals vs. Reality: Initial targets have been surpassed, yet bears remain listed due to policy intricacies.
• Litigation Hurdles: Attempts to delist grizzlies have been repeatedly overturned by courts.
• Current Proposals: FWS proposes partial delisting with reclassification in specific areas, potentially extending protections for decades.

6. Litigation Issues and the Bill's Provisions

Wilms addresses the perception vs. reality of litigation under the ESA. Contrary to popular belief, only a small percentage of delisting proposals face judicial challenges. The proposed amendments aim to limit frivolous lawsuits and provide FWS with the flexibility to implement science-based decisions without undue legal interference.

“Most of the litigation is actually on the front end. Most of the litigation is on that petitions to sue and is addressed through the incorporation of that National Listing Work Plan.” — David Wilms [52:55]

Key Points:

• Current Litigation Landscape: Approximately 10% of delistings result in litigation, primarily involving high-profile species.
• Bill's Provisions:
  • Delay Judicial Review: Introduce a waiting period post-delisting before litigation can occur.
  • Strengthen Recovery Plans: Ensure robust state-led recovery efforts to maintain species populations.

7. Critical Habitat Designation on Private Lands

A significant aspect of the bill is the restriction on designating critical habitats on privately owned lands. Critics express concerns about potential limitations on landowners, while proponents argue it protects property rights without compromising overall habitat conservation.

“Critical habitat is critical habitat to me. So why, how can you differentiate between public and private?” — Brittany [62:15]

Key Points:

• Protection of Landowner Rights: Limits FWS's authority to designate private lands as critical habitats unless specific conditions are met.
• Incentivizing Conservation: Encourages voluntary conservation efforts through incentive programs rather than regulatory mandates.
• Controversial Provision: Balancing conservation needs with property rights remains a contentious issue.

8. Conservation Incentives for Private Landowners

The bill emphasizes incentivizing conservation practices on private lands. Initiatives like Candidate Conservation Agreements with Assurances (CCAAs) are highlighted as effective tools that can be streamlined to encourage more landowners to participate in species recovery.

“There are barriers to entry. Yeah. And then the fourth one is, and..." — David Wilms [70:05]

Key Points:

• Streamlined Processes: Simplify the adoption of conservation agreements to reduce administrative burdens.
• Enhanced Participation: Encourage more private landowners to engage in proactive conservation efforts.
• Benefits to Both Parties: Landowners receive assurances and potentially financial incentives, while conservation goals are met more effectively.

9. Funding and Reauthorization of the ESA

Addressing the funding shortfalls, Wilms underscores the necessity of reauthorizing and increasing funding for the ESA's implementation. The bill proposes significant financial commitments to ensure that recovery plans are adequately supported and species can be effectively conserved.

“This bill reauthorizes the Endangered Species Act and increases the funding for the implementation of it to like 20, $25.” — David Wilms [70:05]

Key Points:

• Historical Underfunding: ESA has faced chronic underfunding, hindering its effectiveness over the decades.
• Proposed Increases: Substantial financial boosts to enable comprehensive recovery efforts and enforcement.
• Sustained Support: Ensures long-term viability of the ESA's objectives through consistent funding mechanisms.

10. Recommendations and Conclusion

As the episode wraps up, David Wilms offers targeted recommendations for advancing the ESA Amendments Act. He advocates for focusing on three key provisions that could gain bipartisan support and significantly enhance the ESA's functionality:

1. Incorporation of the National Listing Work Plan: Reduces litigation and manages FWS's workload more effectively.
2. Enhanced Recovery Planning Process: Facilitates greater state and local involvement in species recovery.
3. Conservation Incentive Programs: Improves and streamlines agreements with landowners to promote proactive conservation.

“These are [...] real tangible things that I think would greatly improve implementation of the ESA and help with species recovery.” — David Wilms [72:16]

Conclusion: The episode underscores the complex interplay between legislation, conservation efforts, and political dynamics surrounding the ESA. Wilms emphasizes the need for pragmatic amendments that address existing challenges without dismantling the foundational successes of the ESA. By fostering collaboration between federal agencies, states, and private stakeholders, the proposed amendments aim to create a more efficient, effective, and bipartisan framework for endangered species conservation.

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For listeners seeking to delve deeper into the nuances of the Endangered Species Act and its proposed amendments, this episode offers a thorough exploration guided by an expert deeply entrenched in the field.

Transcript

[Midway USA Representative]

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[Brittany]

Have a really special guest today who is an honest expert on the Endangered Species Act. I know many of you have seen a lot in the news recently about the Endangered Species act situation and I call it a situation because there are so many situations dealing with the Endangered Species act and the listing and delisting of species, whether that be regarding wolves or bears, grizzly bears, all sorts of things that are constantly in the news, litigation about species. And recently, in fact, on March 6, Bruce Westerman out of Arkansas, Chairman of the House Natural Resources Committee, introduced a bill called the Endangered Species Act Amendments act. And this bill proposes to amend certain aspects of the current Endangered Species act, which is now 50 years old. And we are going to talk about that in depth today. I have David Wilms as my guest today. He is an Associate Vice President of Public Lands for the National Wildlife Federation. He is also a lawyer who both practiced privately for a number of years and now is an adjunct professor for the University of Wyoming Haug School of Environment and Natural Resources in Wyoming. He is a hunter. He understands this issue inside and out. He is a contributing author to the Codex of the Endangered Species act the next 50 years, which is a book that if you are that interested in diving very, very deep into the subject, you might want to get. So I hope you will enjoy this podcast. We have tried to make it as entertaining as possible without going too wonky and to break down these issues so surrounding the Endangered Species Act. So here's David.

[Mike Axelrod]

So there's a reason why I started Blood Origins and that reason is simple, is that I wanted to convey the truth about hunting.

[David Wilms]

It brings awareness to non hunters that it's it's more than just killing animals.

[Brittany]

How do I start it? Brittany My name. Does my hair look okay?

[Mike Axelrod]

My name is Mike Axelrod. Start again. Yeah, I hated it, too. Braxton, you said something in the car to me. You said that you were living on borrowed time. There's a perception around who hunters are, what we're supposed to be. And a feminist that works for a nonprofit that is a hunter that has only eaten wild game for the last 20 years is likely not the thing that people think about when it comes to a hunter.

[Brittany]

Okay, so we are here today. I have a, a really great person who I want to introduce you guys to talk to about a pretty wonky subject. I say, I say wonky. But this is a timely topic. You are hearing it in the news all of the time. I've got Professor David Wilms on with me. Many of you have probably, if, if you read and listen to the same types of things that we do, wildlife, sportsman's issues, environmental issues. You have definitely heard David's name before because he would never tell you this, but I'm going to tell you this. If you ask around enough, you are going to repeatedly hear that David Wilms is an expert on all things esa. So David is the associate vice President of Public lands for the National Wildlife Federation, which is an NGO that I know very, very well and have a great, great amount of respect for being one of the former CEOs of the Mississippi Wildlife Federation. Still work with them. They do amazing, amazing work across North America. He is also an adjunct professor at the University of Wyoming HOB School of Environment and Natural Resources up in Wyoming. So I have a tremendous amount of respect for David. David is also just a really cool guy. So you would not think he would be so, so smart and so, so cool. But he also is. He's a hunter and he has delved into these issues for, for decades. Although he looks a lot younger than someone who would have been involved in these issues for so long. So David and I are both attorneys, so we will try not to talk like attorneys today because there's a lot going on right now at the esa. So I'm going to ask David to talk about both the history of the ESA and kind of what led to its introduction 50 years ago, because it's been 50 years now. And then this brand, brand brand new bill that has been introduced. It was introduced on March 6 by Chairman Bruce Westerman, the chairman of the House Natural Resources Committee, and he was joined by a number of co sponsors on the Natural Resources Committee from all across the country, different areas in the country, north, south, east, west and what this amendment, this ESA Amendments act entails. So. David, welcome.

[David Wilms]

I feel like we should just wrap up this podcast right now because you said so many nice things. I want to get out while the getting's good, but I really appreciate you having me.

[Brittany]

Yeah, yeah, no, I'm want you to educate me and educate everyone listening today.

[Mike Axelrod]

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[Brittany]

You know, we talked for just a very brief minute or two before we started this episode about how this bill was introduced. This and the full, full name of the act and It's House Bill 1897. The full name of the act is the Endangered Species Act Amendments Act. And. And you mentioned that the bill itself is longer than the original bill, right?

[David Wilms]

Yeah. I mean, so I was looking at it and I think you may have told me that it was 44 pages of the bill and I'm sitting here holding a copy of the original act that I've printed that I just carry with me. And it's 41 pages that you just carry with you.

[Brittany]

I love that.

[David Wilms]

You know, when you said I was an adjunct, it's. I've taught a class for years on the Endangered Species act and so I always have my. I mean, it's starting to fall apart. I need to restaple it, but maybe print off a new copy. But I always have a copy of the act at arm's reach.

[Brittany]

I love that. I love that. So some people carry a copy of the Constitution, some people carry a copy of the Bible. You carry a copy of the Endangered Species Act.

[David Wilms]

I do, Yeah, I do.

[Brittany]

Well, that's fantastic. And that is exactly why I have you on today. So can you walk us through the advent of the esa?

[David Wilms]

Yeah. Now I'll tell you, when I teach this class, this is about three lectures to do this. We're going to condense this down into a few minutes. But you know, there are. It really came about because of some precipitous declines of some of our more iconic species that you would think about. Think about manatees and whooping cranes and, and gray wolves and grizzly bears and American alligators and I mean, California condors. And you can continue this list right there. There were, people were thinking and noticing these iconic species. And the, the first act actually passed in 1966. This is called the Endangered Species Preservation Act. And I. I laugh about this when I, When I talk about it, because we know today how slowly Congress can move on things, right? They passed this thing, and they very, very quickly realized that it. It has no teeth, it's pretty much voluntary, it doesn't cover enough species. And so, like, three years later, in 1969, they pass another law, the Endangered Species Conservation act, which adds some additional teeth to. To this. It adds additional species that can be included, like crustaceans and mollusks, instead of just mammals, fish, birds and amphibians. It expanded conservation to an international level, species that were in danger of worldwide extinction. And it sort of set the framework for the bill we operate under today. But after operating under that for a couple of years, folks started to realize this one isn't as effective as it should be either. And one of the main goals is we wanted to cut off, end the decline of species and try and prevent extinction. Right. So in 1973. So we're talking the third bill in, like, seven years passed by Congress to deal with endangered species, building off of prior versions that they just felt didn't quite hit the mark, and they replaced it with these new ones. So in 1973, they passed the. What we know now as the Endangered Species Act. It passed. And this is the part I always love to tell people, because you see all that partisan bickering today and party line votes on nominees and, you know, and bills, and it's hard to find bipartisanship. It passed the Senate unanimously, and it passed the House 390 to 12. And I mean, it was pretty amazing. It was. It's pretty amazing. Right. And. And since that time, it's actually arguably be. Arguably become one of the most powerful laws for species protection, not just in the United States, but in the world.

[Brittany]

Mm. Yeah. Because it does have international implications. And can you just explain to people why it doesn't just affect American species?

[David Wilms]

Yeah. And this is always interesting because you can list, in fact, I actually checked today before we were recording to get an updated tally, but Globally, there are 705 species listed outside of the United States under the Endangered Species Act. And people would ask, well, what kind of authority do we have as a sovereign to list a species in another country? Right. And. And how can that have any impact? Well, the idea behind this is, is. Is economic in a lot of ways. Right. There's a lot of commerce that moves between countries. And if we list something and make it. Make it illegal for our citizens to import parts of animals, for example, into this country or plant species or whatever happens to be listed. If we make that illegal, then it means we're less people are going to be interested in going to those places and potentially pursuing some of those animals. Some of them might be more charismatic, huntable species, for example.

[Brittany]

Right.

[David Wilms]

So if they're listed and we prohibit bringing parts back into the country, then, you know, that can have impacts in those nations on, on how they, how they do conservation. They recognize the economic impact it might have. So it's a lever of, of influence.

[Brittany]

Yeah, yeah, yeah. And so this act was passed in the early 70s when we were arguably at a very, very critical time both in the United States and the world on a, in terms of a number of level of our species. I mean, take for example, the American alligator. It was, I mean, on the version of extinction back then and it has been one of the success stories of the esa. But we do have a number of species that have, I guess you would have classified them as success stories, but they've never been delisted. The American alligator was actually delisted within, within 20 years. I mean, within our lifetime. Not, not my lifetime, but within. There are still people alive today who are alive then that have seen the full recovery of the American alligator. Um, but, but other species that the species population density has shown have been recovered are still on the list. Can you explain that?

[David Wilms]

Oh, if I could. Look, I, I, I think the Endangered Species act has been one of the most successful laws out there for recovering species. And before I go too much farther, there's, there's one thing that always bothers me a little bit, you know, and I'm guilty of this. I used to do this when I, because I, in a prior life I worked for a governor and we worked on endangered species issues. And there are political talking points that both sides of the aisle use. And I always use the talking point of, well, the Endangered Species act, only, only at the time I was doing it, it was 1% of species have ever been delisted due to recovery. Now it's about 3%. Right. And I always use that as a talking point to say, you know, that's, that's evidence that it, that it's maybe not working as well as it could. And then we'd point to species like where I live, like grizzly bears that we thought should be delisted but are still on there. I've kind of refined my thinking on this over the years as I've dived more and more into the mechanics of the act and and what's working and what's not working. And I view those as just absolute political talking points and I throw them out the window. People use them, they're going to continue to use them. But I think you have to look at different metrics. Like grizzly bears for example, is a great, is a great one because the recovery rate on grizzly bears. Grizzly bears are one of the slowest reproducing mammals in North America. They just are. So you can't expect like American alligator, which reproduces much faster. You know, you're not, you can't expect a 20 year recovery for grizzly bears like you might be able to for American alligators. So one of the things you have to look at is were there recovery plans put in place for these species and are the species meeting the metrics under those recovery plans? Are they moving towards being able to be recovered and delisted? Sometimes it's going to, it could be five years sometimes, it could be 50 years sometimes. Like frankly with things like black footed ferret, they may never get to the point where they're delisted. But there's still a conservation success story story because they went from being believed to be extinct to, to now having thousands in the wild and in captivity and a successful breeding program.

[Brittany]

Right.

[David Wilms]

So I always like to talk about, like let's take the politics out of it and talk about how is it actually working. Now the challenge with something like grizzly bears is it is a gigantic conservation success story they have. It's particularly in, in the Greater Yellowstone ecosystem and the Northern Continental Divide around Glacier National Park. But they have in, in the Yellowstone area. Look, I'm in Wyoming. Like this is a thing I've been watching for my whole life. But they went from being listed, there were about 137 bears and today there are over a thousand.

[Brittany]

Yeah.

[David Wilms]

And they've expanded.

[Brittany]

That's unbelievable. That to me is just incredible.

[David Wilms]

Yeah, yeah, yeah, it's incredible.

[Brittany]

But you can't, like you said it, comparing grizzlies to alligators to ferrets is comparing apples to oranges to bananas. I mean like you have to look at each species within the species recovery plan individually. And you're right. I mean, one problem that I see not with the ESA itself, but with the entire dialogue around the ESA is that it has become this polarizing legislation that both sides of the aisle have just decided sort of what they want to do or someone's told them this is what you should do. And, and you do hear these same talking points over and over and over. I mean, I'll. I will just put this out there. My own personal belief about the Endangered Species act is that it has been an unbelievably phenomenal tool in species recovery. I think it's wonderful. I think that it could be better. And. And that's what I'll say. It's not. It's not that it's got all these horrible, awful flaws. It's that after having had this bill in effect for 50 years, we have now had time to look at it and say, okay, all right. We've seen some things. We've seen all these things that have worked. We've seen some things that maybe haven't worked quite so great. And, and here are some ways that we could make this work better and more efficiently and, and help some of these species recover and maybe be delisted, and maybe some won't ever. But. But let's, you know, make the tweaks to help it keep on trucking in an even better manner. And we do that all of the time with different pieces of legislation.

[David Wilms]

So.

[Brittany]

So why not this one? Why. Why do you think? So, this, this new bill that was introduced, it's. It's got a lot of support right now on the Republican side. I mean, just in the last week, we've had 20 co sponsors sign on. I just pulled the list and look, some really strong members, but I haven't seen a Democrat sign on yet. This, to me, should be a bipartisan issue. I mean, so why is it not yet? I'm hoping that it will become bipartisan.

[David Wilms]

Yeah. You know, it used to be, you know, that. That point that you made about amending bills like, as we learn how to do better, we have a track record of this. We actually have a track record of this with the Endangered Species act. And it was passed in 1973. It was amended in 78. 82. 88 there. And I think there might have been one or one or two other tweaks in there. Those were the major amendments, and they were in response to something, like they learned something, and sometimes they made a change. And actually, one of the changes they made in 82, 1982, has actually led to a lot of the problems we're dealing with today. Right. And, you know, which was that.

[Brittany]

Can you talk about that change?

[David Wilms]

Yeah, absolutely. So in 1982, leading up to that, one of the big issues is that somebody would submit a petition to list a species, which is. There's. There's a process under the act to do this. Right. Either The Fish and Wildlife Service can do this on their own accord or somebody can. When I say somebody, I mean you or I could do it. An NGO could do it, A state could do it. Anybody can do this. Submit a petition to list a species and then the Fish and Wildlife Service would, would analyze that petition and, and analyze the species and make a determination on whether or not to it warrants listing. There were no timelines in 19 before 1982. So a petition would come in and sometimes they just sit on it and nothing would happen. And they could sit on it for years. And Congress said this doesn't make sense. We have an act for a reason. And if a species is truly imperiled, it should probably be listed right. And so they put a process in with deadlines in 1982 and they just kind of randomly out of thin air, like if you can go back and look at this and there's just not a lot of rhyme or reason or explanation. It took 12 months. It was sort of a. A year should be enough, right? A year should be enough. And what we have found out since then, particularly in that, you know, I'd say the 1998 to about 2010 timeframe, when you had a handful of environmental groups recognize the limitations of, of the Fish and Wildlife Service from a staffing perspective, resource perspective, they knew that they could submit hundreds of petitions at one time to list species and the service would be overwhelmed by that and wouldn't have the resources to address those. They would miss that 12 month deadline and then those environmental groups could then sue for violating the, the firm deadline in the actual. And they'd win every time. And it wasn't necessarily, I've heard some people say, well, it was, it was about, you know, sue and settle and getting paid. And it wasn't really about getting paid as much as it was about controlling the, the workload of the Fish and Wildlife Service, directing the species that should be listed where, when. And so they had all these settlements and the workload of the Fish and Wildlife Service was dictated by the courts and in these massive species settlement issues. And that was all a function of an amendment in 1982 that was made for the right reasons, like they needed to respond to something real. And now fast forward and you know, 40 years later, 43 years later, we're seeing that, oh, there are consequences from that amendment that might make sense to address right. And so that's kind of my point is they used to do it and then they just stopped and it became this third rail, like this untouchable law that, that put people into real political corners and not just because of that issue, but because of a number of different issues. And now it's become almost this untouchable issue. It's just really, really, really difficult.

[Brittany]

Does that still happen? I mean, do environmental groups still flood with petitions and then Sue.

[David Wilms]

Well, so here's the thing. And this, this, this, this is going a beautiful segue into the bill, right into Representative Westerman's bill. So towards the end of the Obama administration, one of the things that happened in response to one of these Sioux and Settles was an, that the Fish and Wildlife Service put together a national listing work plan. And what that was is a policy for them internally for how to prioritize the petitions they receive so that the species that were of the highest concern would be dealt with in that 12 month time frame would be dealt with fastest. And maybe somewhere states and tribes and local governments and others were doing a lot of on the ground conservation and there were chances to prevent the need to list in the first place. They might put that as a lower priority species for addressing the petition. And they gave themselves a timeframe to handle these petitions, but they, they put them in these bins and there were five of them. Right. And the environmental groups actually signed off on, on that and said they'd stand down and let this approach try to try to work. And it's actually worked remarkably well because oddly enough, if you let the Fish and Wildlife Service prioritize petitions based upon science and need, they have the expertise to know how to do that. And they can, they can triage this and actually manage things pretty well. And I think everybody, like everybody I've talked to on both sides of the aisle in the environmental community, in the ag community and industry, like, they all think this has worked pretty well. And it's one of the pieces included in Representative Westerman's bill is to really formalize by statute that national listing work plan. Because without it right now, technically, by operating under that plan, they're technically, technically violating the law because they're taking more than 12 months. And at any point these groups could, could decide we're going to challenge that. Right? Yeah.

[Brittany]

So right now it's basically a handshake agreement that they're not going to be sued if they work in this priority plan manner. And Westerman's bill codifies this into law.

[David Wilms]

That's right. And it's the second bill, this is the second attempt at codifying this into law. Senator Barrasso from Wyoming tried to do this in 2019 or 2020 with a, a bill that's, you know, there are some, there's some overlap, some synergy between these two bills. Right, yeah. And that was one of the provisions in that one as well. And it's been, it's been something that I think there's actually pretty broad support for that.

[Brittany]

Right, right. Because this bill did not come out of nowhere. I mean, there have been a lot of people working on this for a long time.

[David Wilms]

That's right.

[Brittany]

Republicans and Democrats and environmental groups and wildlife groups and a lot of went into this bill from experts.

[David Wilms]

Yeah. And it's, and it's sort of you build off of lessons learned from prior efforts. And that one with Senator Barrasso, for example, is one that I was very, very involved in. I worked for the governor of Wyoming at the time and we worked closely with the Western Governors association at that time. He was the, the chair of the Western Governors Association. And we worked with governors and across the west and we work with, with groups, different interests from all over the country to put together recommendations for how we could improve not just the statuary side, but the implementation through the regulatory regulation as well of the Endangered Species Act. And it led to a number of ideas that, that served as, I would, I would say the core of Senator Barrasso's bill. And some of those themes have carried over into Representative Westerman's bill as well. And they were built off of a multi year effort that involved facilitated professional facilitators, you know, you know, working through dialogue. And me, I was, I stepped into a facilitation role and I am not a professional facilitator, but by any means. But, but we all kind of work together on, on this.

[Brittany]

Right, Right, right, right. Okay. So we mentioned the success story of the American alligator recovery and delisting. You mentioned that. Was it, did you say it was up to 3% or up to 5%?

[David Wilms]

3% that have been delisted due to recovery. So it's up to 3%. But it kind of depends on the math on all this gets squishy because it's. Are you talking of all species listed, just US species listed or a subspecies or, or DPSS or, you know, all that. So okay, you know, 2 to 3%. 2 to 3%.

[Brittany]

So before we get into a few of the specifics of the bill and a few of the proposed amendments, I'd like to talk about one species that has, and I'm not even going to say arguably because the science has shown that it has recovered. We're going to talk about, but it has not been delisted. Let's, let's talk about the wolves. Let's talk about the gray wolves. They had actually been delisted both under the Obama administration and then the first Trump administration. So we're talking about a Democrat administration and then a Trump administration. Right. But now they have been. They're listed again. And, and let's take Wisconsin. So, because Tom Tiffany is one of the sponsors of this and he is just an, an adamant, very vocal supporter of this act. And, and his reasoning basically stems behind because of what is going on, what has gone on with the gray wolf. That state's management plan that was initially put into Place in 1999 and then updated in 07. The target population for recovery was set at 3:50. And we know today that they have over a thousand wolves. So they're over three times their initial target population and yet they remain listed as endangered. So what do you think and what is possibly in. Why has that continued to happen? And what in this new bill could possibly prevent something like that from happening? Because I, I don't think a lot of people understand. Like, we are constantly hearing about wolves here, wolves there. What, you know, they were, they were delisted in Montana. They were delisted in Idaho. Why are they listed here? You know, like, it's just been this com. And we, we hear about them being introduced into this state. They've been brought down from Canada. I mean, it's just this ongoing onslaught of wolves. Wolves, wolves. Especially on social media. Can, can you kind of walk us through wolves?

[David Wilms]

Oh, man, can I. How much time do you have?

[Brittany]

No, you need to do an entire episode just on wolves. But yeah, I'd love to do it after there's a solution to it. I don't know that there ever will be. But, you know, I think that, I think the amendments in this act can help. But just for right now, walk me through what you have seen and what you think could help.

[David Wilms]

Yeah, so again, being in Wyoming, I've lived wolves for a long time. Wolves were reintroduced in Wyoming when I was in early high school. Right, right. So it's, it's like. And then they just exploded right from. So they were reintroduced in Yellowstone and then in central Idaho and just took off. And they've become a focal point of my career as well, along with grizzly bears.

[Brittany]

And, And I've seen the wolves in Yellowstone. I mean, I've seen some. And they're amazing, amazing to watch. They're cool.

[David Wilms]

They're incredible. Yeah, they're incredible. Right. Uh, the thing is, here's where it gets a little complicated. So there have been, you know, there had been in, in this area and then we'll talk about the western Great Lakes. In the. In the northern Rockies, there were. Oh, I mean, between the two, there have been over 10 attempts to delist wolves. Right. So. So there's some that tells you there's. It's not a Fish and Wildlife Service problem necessarily, because Fish and Wildlife Service has recognized that populations have hit recovery goals for. And that they, in their belief, there were adequate regulatory mechanisms in place at the state level to ensure that upon delisting, wolves would remain recovered for the foreseeable future. That's the test you're going to delist. That's what you have to show. One of the things you have to show. So it's saying this exists. So they tried many iterations of delisting. So when you hear stories about, well, in Montana and Idaho, they were delisted. Well, that was a situation where Wyoming wanted to do this dual classification where in part of the state they were classified as trophy animals that could be. That would have a regulated hunting season and really strictly managed. And the rest of the state, they would be classified as a predator species, which meant. So, you know, from a social standpoint, they just weren't going to jive with the rest of the state. And. And we just didn't want them there. And so they. There were more aggressive management plans in place to. To re. Effectively to manage them as close to zero as possible in closer to the nuisance species. Yeah, exactly.

[Brittany]

Not quite that extreme.

[David Wilms]

Yeah. And. But in the recovery area, they were going to be managed very strictly and with. With quotas and with population targets and so forth. Fish and Wildlife Service at first didn't like that approach. They didn't. They didn't like it. So they decided they were going to move forward with trying to delist wolves in Montana and Idaho on their own. And so they drew this line to delist them in those two states and not Wyoming. And a court said you can't do that because if you're going to create a distinct population segment, it has to be along biological boundaries, not geopolitical boundaries. And so you can't use a state line for it. Well, in that.

[Brittany]

That kind of makes sense.

[David Wilms]

I mean, it does make a lot of sense. Right. I mean, the service was trying to get creative. They didn't like what Wyoming was doing, but they thought these other two states shouldn't be punished for what they thought. Wyoming was doing wrong. So they, they do this and, and the, the court says, no, you can't do this. And then sometimes you just have to have fortuitous timing on things. And Senator Tester was up for reelection in a very contentious year. And you had a number of Democrats in the upper Midwest that were looking at what was happening there and thinking, you know, in the Great Lake State thinking, well, we want to delist wolves here. We may need a similar solution. So through a budget rider process, Senator Tester successfully attached a rider to reinstate that delisting rule for those two states and make it not subject to judicial review. So Congress intervened in that instance and it just happened to be this convergence of the right politics at the right moment where Democrats. Tester needed this for reelection, Democrats needed Tester. Upper Midwestern western Great Lakes states had their own wolf issues to deal with, so they thought they might need this. So everything converged at this one point and they were congressionally delisted. Then fast forward a few years and ultimately Wyoming won some litigation about this dual classification system and they were allowed to do it. And then the Fish and Wildlife Service moved forward with delisting that. And so now you have a delisted. And that actually, by the way, survived judicial review. And it's. Of all the 10 or so delisting attempts, it's the only attempt to survive judicial review that where a court ultimately put the stamp of approval and said, yep, this, this survives judicial review and this delisting rule can stay in effect. So then they were delisted in Wyoming, Montana, Idaho, eastern Oregon, eastern Washington and the panhandle of Utah. So all of those are delisted and they all remain delisted today and have for years and under state management. Then you have the western Great Lakes issue. You know, the. Minnesota was.

[Brittany]

Minnesota. Yeah, right.

[David Wilms]

And some of the issues there are now becoming some of the issues around grizzly bears too. And it's. It all, in my opinion, ties back to this policy that the Fish and Wildlife Service adopted in, in 1990 or. Sorry, yeah, 1995, 1996, this distinct population segment policy. So wolves are an interesting, an interesting deal because remember we said the. I said the ESA has been amended a few times. Well, in 1982, the definition of species was amended to include a distinct population segment. Could be its own species. So you could list, you didn't have to list nationwide or range wide for a species. You could actually draw a line on a, on a map and just list a subset of a population that might be imperiled versus everything. Well, wolves didn't fall under that. I'm getting really wonky here, and I'm sorry.

[Brittany]

No, no, it's okay. Yeah, no, it's okay.

[David Wilms]

But, but wolves didn't fall under that. They were listed before this rule change. Right? So that, that rule, that statutory change happens in 1982, and then a policy is written in the mid-90s to implement that change to say, okay, here's what a distinct population segment is. And part of that is you have to have discreteness from other populations. So it has to be so genetically isolated as to not have a lot of interconnectivity between other populations of the same species. So one of the issues in the western Great Lakes states is you have wolves that have been moving out of those states into other places. Right. And the question is, how do you address those, those remnant populations? And if you delist that, that western Great Lakes population, if you delist that, what do you end up doing with, like, how do you delist all of these other wolves in other places? And it's an issue we're going to face in the west as well is with this distinct population segment policy is these populations in California are connected to delisted populations, for example. And so you can't create a new distinct population segment. So right now the only way to delist wolves in a large part of the country because of that population is you have to delist every. Them everywhere. Yeah, you really do. And, and then, so then the question is, are they truly recovered everywhere or everywhere they should be? And that's the big debate. Like that's the back and forth.

[Brittany]

It's super complicated.

[David Wilms]

Super super. It's way more complicated than, than politicians or the media make it out to be. It's super complicated.

[Brittany]

And that's the same situation going on with grizzly bears, correct?

[David Wilms]

Yes. Yeah, it is. So grizzly bears. There have been multiple attempts to delist grizzly bears, two attempts to delist grizzly bears in the Greater Yellowstone ecosystem. And both times the federal district court and then the ninth Circuit Court of Appeals found some reason why that proposed delisting rule was insufficient and reinstated the listing rule, putting the protections back in place.

[Brittany]

Because we know the ninth Circuit Court of Appeals knows everything that they need to know about.

[David Wilms]

They seem to. They seem to. You know, I've been in the camp for a long, long time that that particular population has, as you know, more than recovered. You know, it's at the point where it's busting into new places. They haven't been seen In a hundred years, they, you know, you talk to some of the biologists there, they'll tell you really, they're, they're about as close as you can be to carrying capacity and which is why you're seeing them move into other places where they've never been before. They're out on the plains, they've, they're moving multiple mountain ranges over. They're just, they're dispersing more human conflict. Yeah, more conflict. More, more fatalities in the past decade than there were in the, in the 30 years combined prior. There's a lot of conflict. But there were petitions to again to delist from this. All three states that have bears, you know, the Montana, Wyoming, Idaho, all, all submitted three different petitions to, to delist grizzly bears. And the Fish and Wildlife Service did something a little bit. I'll just say it was unique right in. It's something maybe you could have seen it coming, but I maybe didn't see it coming quite this way, which was they reclassified grizzly bears. So, so what they're proposing in they have a proposed rule out there. What they're proposing to do is to say everywhere in the country except this area, we're delisting them. Okay, so, but in the, in this particular area that in the western United States, we're going to reclassify them as threatened and we're going to reclassify them as one meta population and large distinct population segments. So there are six recovery zones for grizzly bears and this new DPS would encompass all of those recovery zones and everything in between them. And it runs from, you know, almost the North Dakota border, it encompasses almost all of Montana, you know, 2/3 of Wyoming, 3/4 of Idaho and in good chunks of, of eastern Washington all the way to the Cascades as well. If this were to, to be adopted, and it arguably could mean that if, if you have to recover this entire metapopulation, you could be looking at decades, like literal decades, that the, the bears have to stay on the list to meet what might be new recovery objectives. They also did one other thing which is they created what's called a 4D rule to accompany this reclassification. And, and it does give some additional flexibilities for management for landowners to deal with conflict bears and for state agencies. But I do know there's some concerns from the, from some landowners about, about some liability issues even under that 4D rule.

[Brittany]

And where, where is that in the process? Is that under public comment right now?

[David Wilms]

What is it is public comment was had been open for 60 days. It was just extended for another 60 days. I think it closes sometime in mid May now. So it's open for comment and then the Fish and Wildlife Service will review comment and they have a year from the time that they published that rule in, proposed rule in early January until they have to make a, a final up or down determination on, on that rule.

[Brittany]

And then there'll be a litigation.

[David Wilms]

Oh, of course there will. That's the, that's consistent as gravity. Right.

[Brittany]

So talking about the litigation, I think that we can move into. Let's talk about a few components of this bill because one of them is very specific to the litigation situation and not the one we talked about earlier necessarily. But, but just maybe let's just walk through a few of the kind of main focal points of this year of this bill. One of the goals, it seems, of this amendments act is to put more of the, I don't want to say power, because that's not the right word, but to give states and local officials in tribal jurisdictions more of, I guess, a hand or more, I mean, I guess more power in, in enacting their own recovery plans within their jurisdictions. I'm, I'm not phrasing that very well, but you probably know exactly how to phrase it.

[David Wilms]

Yeah. So as I said at the beginning, when you strip the politics away and see what works and doesn't work, what we do know about species recovery is that if a species has a recovery plan in place that in nearly, like in nearly every case when you, when you have a recovery plan with, with goals set in place, species are moving towards those recovery objectives, they're trending the right direction. It's the ones that are in purgatory. Like 18% of all listed species don't, in the United States don't even have a recovery plan. Now that's an improvement from 10 years ago where it was closer to 30%. But you still have, you still have several hundred, at least a couple hundred species listed that don't have a recovery plan. And in, in some instances they can go 20 years on the list before they even get a rep. Recovery plan. So you don't even know the pathway to recovery. It. They just sit there in purgatory. Right. You don't even have a roadmap to recovery. So one of the things that I think does have some broad appeal is if you can create incentives or facilitate more local control, taking a hand in species recovery at an earlier stage to create, to help write a recovery plan and lead a recovery implementation team, look still in coordination with the Fish and Wildlife Service and the Secretary of Interior's office. But if you can do that and get a plan in place a lot faster and move towards implementing it, you know, we have a lot of data that shows you'll move a lot faster towards actually recovering and delisting species. Which, by the way, you know, we talk about preventing extinction, but one of the main goals of the ESA is also to facilitate the recovery of a species to the point where the protections of the act are no longer required.

[Brittany]

So is that a goal under the existing act? I mean, does it have objective species recovery goals? Do you have to have that under the existing Act?

[David Wilms]

No, no. You can do recovery plans, but it's not. I think this bill, you know, helps like the provisions of this bill would, would, could potentially help facilitate today. It doesn't mandate. Right. This is, this is a, it would that states that want to do this, states that want to lead recovery planning processes and want to write the recovery plans could be empowered to do so. And arguably you could probably do that without a statutory change. Right. But by, by making it a statutory change, it becomes really the policy of Congress to say, look, states should be really engaged, active participants in the recovery planning and and implementation process. And so, you know, there's, there's a lot of potential there.

[Brittany]

Don't you think that the entire objective of the act should be to recover and delist species?

[David Wilms]

Well, I, I mean, I think it should be twofold. I think the, the, I think it's a safety net. I think you need to catch them before they, they circle the drain and fall out.

[Brittany]

Right, right.

[David Wilms]

So the first step is, is catching them. And the second point is setting them free. Right. So catching them and then recovering them and delisting them. And sometimes we get caught in the. Let's catch em. And to be fair, the resources available for the Fish and Wildlife Service to implement the Endangered Species Activ, especially when adjusted for inflation, have decreased pretty substantially over the past 30, 40 years. And so it's another reason why a state partnership is, is really critical to do that second step of recovering and delisting. If all we're doing is putting them on the list, that list is just going to grow, grow, grow. Eventually it's going to collapse in on itself. Like it's just one, like it's just going to fall under its own weight because you're not, you're not getting species off the list. Right. And we have to be honest about that.

[Brittany]

So over the last 50 years, we have seen groups sue and sue and sue and sue to prevent species from being downgraded or delisted. This new act has some provisions in there to that would at least maybe, I don't know about halting completely, but at least maybe slowing that down. Right.

[David Wilms]

I'm going to push back on you just a little bit. And it's only because I. About a year ago I wrote a chapter for a book that was the ESA at 50 is effectively what is and looking forward for the next 50 years about the Endangered Species Act.

[Brittany]

Yeah, I didn't know that or I would have mentioned that.

[David Wilms]

So yeah, so I was, I was a contributing author to this and one of the things I was researching was the litigation piece because I was really. Because in Wyoming it felt like we were always facing these litigation challenges with grizzly bears and wolves and prebles meadow jumping mice. And we read about it all the time.

[Brittany]

We always read about all the time.

[David Wilms]

So I wanted to get some actual data like how often does this actually happen? And right now we have 79 species that have been delisted due to recovery. When I wrote this book chapter it was 71. And at that time there were really only in fact I might even just, just point out a sentence or two here. Only five of those 71 were judicially challenged. So when people think that there's these, there's just constant litigation over delistings. It's actually five gray wolves, Louisiana black bear, Steller sea lions, northern Virginia flying squirrel, bald eagles. Each of those species are delisted with the exception of wolves. And then there were three others that were that had been proposed for delist. So gray wolves outside of the Northern Rockies, Greater Yellowstone population of grizzly bears and Prebles meadow jumping mouse were proposed for delisting and courts reinstated protections. So you have some where there were.

[Brittany]

There were litigated protections, did somewhat not have to at least ask for an injunction to.

[David Wilms]

So, so what I guess what I'm saying is there were five that were judicially challenged where they, they prevailed. Right, where the service prevailed and this then the species were delisted. You had three additional ones that were proposed for delisting and challenged and remain listed today where they lost. And so all told it's really about 10% of all species that have ever been proposed for delisting that result in litigation.

[Brittany]

So maybe it's just over about these same species.

[David Wilms]

The issue is the ones that, that we see are the most high profile, most charismatic, most controversial species. So most of the species that are delisted aren't controversial. So how is it that you deal with the ones that, that are, which are the things like grizzly bears, wolves and evidently prebles muddo jumping mo, which is the most charismatic mouse species out there?

[Brittany]

Is it. I'm going to Google this thing right now.

[David Wilms]

But the only reason I wanted to push back on that is there's this narrative and I fed into this narrative for years until I actually dived into the data that every time something is proposed for delisting, it's instantly litigated. And the truth is most of the litigation is actually on the front end. Most of the litigation is on that petitions to sue and is dressed through and would be addressed through that incorporation of that national listing work plan. It's these handful of super charismatic controversial species that make it seem like we're always in litigation over delisting, but it's really just a handful of species.

[Brittany]

Do you think we're going to get some litigation over the whooping crane?

[David Wilms]

I mean, yes.

[Brittany]

I foresee that percentage going up.

[David Wilms]

I can foresee situations depending on the species where that percentage could go up. Yes, it's, it's not going to go away. Like it's if, if grizzly bears and wolves are somehow delisted and survive judicial review, people aren't going to throw their hands up and say, oh, we're done litigating, Right. There will be, there will be something else, but it's not going to be everything.

[Brittany]

There are people who. It really doesn't. And, and I think it may come down to just a philosophy. Your, your environmental philosophy. But there are some people who just don't want to see their, their definition of a species recovery is different from other people's definition of the species recovery. They don't want them delisted for whatever reason. Maybe they don't want them to ever allow any sort of harvest season. Maybe they don't want for, for whatever reason. I mean, but it's probably not. I mean, I think that probably even though the parties may look and agree, okay, scientifically speaking, maybe this population is what we would consider recovered from a species density population statistical number. But like to some of these environmental groups, they just don't want them off the list, you know, they want them permanently protected.

[David Wilms]

Yeah. And I, I'll get even more pointed with it. I think this is my, this is Dave Wilms's theory that, and let's just use grizzly bears as an example. If one of two things happened. If Congress passed a law that, like a grizzly bear protection act that prevented the hunting of Grizzly bears or if the states of Wyoming, Montana and Idaho passed constitutional amendments that prohibited the hunting of grizzly bears and incorporated it into their constitutions, grizzly bears would be delisted tomorrow.

[Brittany]

Right.

[David Wilms]

And they would survive judicial review.

[Brittany]

You're right.

[David Wilms]

And, and I, I deeply believe that. And I, and, and when you look at the species that are most controversial, it boils down to all of these species lethal take.

[Brittany]

Yes.

[David Wilms]

Like that's what it boils down to is. I don't want to say it's a blanket for everything, but for those charismatic ones, that's what it boils down to.

[Brittany]

But wasn't there a state sponsored culling of grizzly bears this year? Did I make that up like somewhere.

[David Wilms]

Yeah, you made that up nowhere.

[Brittany]

There wasn't any. I thought they, I thought they culled some grizzly bears for some reason in Alaska.

[David Wilms]

Well, I mean there, no, there's, every year there's some amount of conflict bears that are lethally removed from the population. So state wildlife agencies in working with the Fish and Wildlife Service will respond to conflict situations and they'll try relocation and sometimes relocation doesn't work and it's sort of a two strike policy.

[Brittany]

They killed 94.

[David Wilms]

Oh, they're not listed.

[Brittany]

Okay. Yeah, they're not listed. They're not listed in Alaska. That's what it. Okay, they're not listed. But they did. They did. Yeah.

[David Wilms]

Yeah.

[Brittany]

Okay.

[David Wilms]

But in, in the states where they're listed, no they, they remove conflict bears. But here's an interesting one for you. This is going into the early days of the ESA thing. The original, and I'm sorry to focus so much on grizzly bears, but the original listing of grizzly bears came with what's called a 4D rule. And I talked about it a little bit early. It's section 4D of the Endangered Species Act. It allows some flexible management and some relief from take of threatened species. Doesn't apply to endangered but for threatened. And there was a 4D rule for grizzly bears that authorized the state of Montana to still have a grizzly bear hunt until like it was in effect until the, like the mid-1990s.

[Brittany]

Oh, okay. There were so almost up until they.

[David Wilms]

Were delisted around 10 years shy 12. Yeah, their first time was like 2007, so you know, maybe 12 years before that. But, but there was a, for, for the first 20 years of the act there was a, a provision that allowed and, and Montana did it periodically. They would have grizzly bear hunts outside of Glacier national park while they were listed okay.

[Brittany]

Okay.

[David Wilms]

Which I thought's interesting. Just an interesting tidbit.

[Brittany]

That is interesting. No, I appreciate that. Um, See, I'm learning so much on this. Um, okay, so what is the. What is the proposed amendment that would block environmentalists from suing to downgrade?

[David Wilms]

Yeah. Can. Can I tell you this, the story behind this. I think I told you at one point the story behind this. Like, this one's. This one's my fault.

[Brittany]

Or. And you think this may derail it. But, like, I. I really don't. I think there's something else that may derail it that I'd like to talk about in a minute.

[David Wilms]

Sure. I think there's about a half a dozen things that'll derail it. But.

[Brittany]

But maybe not. Like, maybe not.

[David Wilms]

No, I think it. I think there are about a half a dozen things that. But there is a provision in the. In Representative Westerman's bill, which is a carryover provision from Senator Barrasso's bill, which goes back to some recommendations that came out of this Western Governor's association process in the 2015-17 timeframe, which ultimately started in my favorite restaurant in Cheyenne with a friend of mine writing this down on the back of a napkin.

[Brittany]

What is that restaurant? Just for our interested listeners.

[David Wilms]

It. It doesn't exist anymore, but it was called Lil Phillies. It was a. A Philly style cheesesteak place that was my favorite place to go in town.

[Brittany]

Love cheesesteaks.

[David Wilms]

Yeah, it was good stuff. But we. We wrote this thing on the back end of an app again, and it just sort of kept alive. Kept alive, Kept alive. And it's found. It's. And I don't want to say it's. I'm sure other people had the idea too, but I'm just like, this is where my origin story with it is. But anyway it goes, it says there. There would be no litigation, no judicial review until the end of the post delisting monitoring period. So when you delist a species, it doesn't just automatically. That's the end of the Fish and Wildlife Services engagement with the state or with that species. A species is delisted and for a period of time, usually five years, sometimes a little longer, sometimes it's seven. I think Louisiana black bear might been a seven year post delisting monitoring period. There are annual reports provided to the Fish and Wildlife Service so they can monitor the progress in the implementation of the state's delisting management plan. And then after that post delisting manage or management plan period ends, then it. Then there's More separation. There's, there's not. The, the coordination doesn't have to be as close. You kind of lose some of that oversight. Right. So the idea was, look, no species that's ever been delisted due to recovery has ever been relisted absent a court order saying, you know, relist this because you made some procedural error. But if it makes. Makes it through judicial review or it's never sued, no species that's ever been delisted due to recovery has ever been relisted. So our thought process when we were talking about this a decade ago was, you know, first of all, the likelihood of them having to go back on the list is low because the states don't want to have to go through this process again. It is a really burdensome thing to have a species listed in your state.

[Brittany]

Yeah.

[David Wilms]

Right. And so it was.

[Brittany]

And just so expensive. What a waste resources.

[David Wilms]

Yeah. So much. Yeah. And they don't want to do it again. Right.

[Brittany]

So litigation involved is so expensive and time consuming. Yeah.

[David Wilms]

So they put together these post delisting management plans that are highly effective at keeping species recovered and keeping them from having to be relisted to the point that it's never had to be done. So the thought was, okay, for some of these controversial species, like grizzly bears and wolves, well, what if you delayed judicial review for five years to allow the state's post delisting management plan to work? And if it was working and the species was still clearly recovered and doing well, then why would anybody want to waste a bunch of money suing over that delisting anymore? And Bo, by the way, there's still the backstop that if, if the species starts to precipitously fall, there's still two avenues to relist them, which is the Fish and Wildlife Service can use, you know, emergency provisions, or they can go through the standard order procedure and, and go through a petition and, you know, all that sort of thing. So there's still these, you know, backstops on it. So that was our thought at the time, a decade ago. And, and similar languages is in Representative Westerman's bill.

[Brittany]

And I think it's a fabulous provision. I previously asked you about the constitutionality of. Of it, in which you have researched extensively. And, and it is legal for sure. And there's precedent. Right. Like in other. Didn't you say there was precedent somewhere else? And I make that up too.

[David Wilms]

I don't. I'm not sure about. I'm not sure about that.

[Brittany]

All right, scratch that.

[David Wilms]

Yeah. I'm not sure about that.

[Brittany]

But, but it is, I feel, I feel certain that probably somewhere you have to wait a bit on judicial review, but maybe not, I don't know, but. Well, it just makes so much sense in a time where frivolous litigation wastes so much of our taxpayer resources and the listing process. So I, look, I think that's great. I'll tell you the one. And I would really want to hear your take on this before we have to go. And I know we're running up, we're, we're getting close to an hour, so we're going to. This is such an interesting and so important topic. So this, there's one of the amendments would prevent the Secretary of the Interior from designating privately owned or controlled land as critical habitat, which they say protect landowners rights. Protects landowners rights. So to me that concerns me a little bit because critical habitat is critical habitat to me. So why, how can you differentiate between public and private? I mean, now, maybe some of the regulations would apply differently. But, but I mean that, that to me is just a little bit concerning. Can you go into that a little? Why was that provision put in and what, what's your take on it?

[David Wilms]

Yeah, I think that's going to be one of the more controversial provisions. I also would say, I think that Judicial Review 1 is going to be one of the most, based on prior experience, is going to be one of the most controversial provisions. But I think, I think the critical habitat one will be one of the most controversial provisions. Part of that, I think part of the reason for it is landowners fear. They, they operate in this place of fear a lot and sometimes justifiably so, if a species is listed and it's determined that critical habitat is their property, like this is, right. It can, it can be, it could raise your costs significantly to doing business on your own property.

[Brittany]

Did you can also like, get a lot of money for stuff like that, right? Don't people, like, want to find gopher tortoises on their property?

[David Wilms]

It all depends on the species, for sure. Yeah, I think it all depends on the species. But there, I know that there's, there's a lot of nervousness and particularly because if you have critical habitat, then you've got to invest in habitat conservation plans and you've got to go through and get incidental, take permits and there's, there's just a, there's an additional layer of, of regulatory pressure, right. Put on landowners. And so I know that there's, there's nervousness there on the flip side, right. If you can, if you, if you're focusing resources on recovering a species in the places that are the most critical to it, like what's the habitat that's the most important to the recovery of that species? And it can be important to identify that. So I think it's going to be really, really controversial. One of the things that's in there that I, I'm guessing, I'm just, I'm speculating a little bit, but one of the things they do is they, I think they try and create a few exceptions to this, to. It's not a blanket critical habitat can't be designated on private lands.

[Brittany]

Right.

[David Wilms]

They're saying it can't be designated on private lands if there are these things in place. So say the state's working with the landowner on a big conservation plan or something like that, that maybe that would be an example of where they'd say don't do a designation there.

[Brittany]

And they also incentivize wildlife conservation on private lands. So, you know, that's why I say that. And I think that that may be one way to offset if that provision doesn't make it in there, which is, which is what we do in so many aspects of conservation throughout America. Make it voluntary conservation programs that you can reap benefits from and financial benefits to practice good conservation practices voluntarily, which could in this case happen if you are, you do happen to have land that is designated critical habitat. I mean, look, conversely, look, think about somebody who happens to own property where CWD is found. I mean, they immediately have certain regulatory situations where, or that they're, you know, they can't do certain things and, and their property values tank. So, I mean, there's all sorts of situations that we could talk about that affect people who own private land. I mean, you, you own private land at your peril or, and also at your benefit. So. But I mean, I like the fact that this, this bill would create more transparency, more accountability. I mean, I feel like it would also push states to become much more involved in these species recovery plans. I mean, I think that there's a lot of really good things in this bill. I mean, what I'm hoping is that as they work toward markup, they can get some of the Democrats to come to the table and that maybe some of the Republicans could give a little bit so that we could at least get some of the provisions through. And like you said, I mean, this has been amended several times over the decades, and I don't see that it's. Do you think it's an all or Nothing type of thing. Have you talked to. I have not talked to House Natural Resources staff in the past week. I've been out of the country so I have not gotten the inside scoop on this. I don't know know what the situation is on if there's any compromise to be had. You may know more than I do. Yeah.

[David Wilms]

I don't know how much I'm allowed to share.

[Brittany]

Okay, I know.

[David Wilms]

But I mean just generally speaking, like going all the way back to the beginning of this, you know, I do think it is going to be very, very difficult to find a Democratic co sponsor for a bill where the amendments are longer than the initial act. And I come back to that because it feeds into the narrative that you'll hear from some of saying this is trying to gut or blow up or, or destroy the esa. That, that absolutely feeds into that narrative. And I think that's one of. If I were going to have a significant Critique of my 20 years working on the ESA at the local, state and national level, it would be that sometimes we bite off more than we should chew, maybe more than we can, but more than we should. And it's that in the case of esa, less is going to be more. And, and the typical negotiation tactics in legislation where you throw in the kitchen sink and then negotiate a bunch of it away to get to where you want. I don't think that's a tactic that can work with the esa. I think you actually have to focus on one to three very targeted things that you can, that you can actually demonstrate would provide uplift for species and would provide, you know, better functioning of the ESA and could provide benefit to people as well. Like how can you. You need to focus on those things and then prove that that is actually true.

[Brittany]

Yeah.

[David Wilms]

And then you can come back to the table with another ask. But you like overhauling this bill is I don't think possible even in the current political climate.

[Brittany]

So as we close out, let me ask you this. If you were going to pick the one to three things and you can say, you know, one thing or two things, what out of this bill that you would advance, what, what would it be? What do you think could have the greatest impact?

[David Wilms]

Well, there's, there's what can pass and what I like there might be two different things. Right. So I'll go on the thing that I think can have the biggest impact that could actually get some bipartisan support over the longer term.

[Brittany]

Okay.

[David Wilms]

And I, and there I'll point to three and I'll just start there and one of them is the National Listing Work Plan. You want to reduce litigation and help the Fish and Wildlife Service manage its workload. Incorporate the National Listing Work Plan into the Act. Two is maybe there's even four, but two is the, the recovery planning process and finding ways to facilitate greater state engagement and involvement in that. Look, the act, when it was originally adopted, envisioned a partnership and a very strong state level stateside engagement to species recovery. This, that would be moving in the direction of I think fulfilling the initial intent of the act when it was originally drafted. Three, uh, some of the conservation incentive programs, like improving how candidate conservation agreements with assurances are adopted, you know, and making it a, a faster, less burdensome process for landowners, I think can be really, it's a really effective program, but it can be time consuming. There are barriers to entry. Yeah. And then the, and then the fourth one is, and this one might not get talked about as much is this bill reauthorizes the Endangered Species act and increases the funding for the implementation of it to like 20, $25. Yeah, we didn't talk about that significant. It hasn't been reauthorized in decades and it hasn't been funded at appropriate levels maybe ever. And so you know, when you take that and those other three, like, those are, those are a few like real tangible things that I think would greatly has the potential to greatly improve implementation of the ESA and, and help with species recovery.

[Brittany]

And you would think that that last point would at least get some people across the aisle.

[David Wilms]

Not with everything else that's in the bill.

[Brittany]

Not with everything else. But I like your four. I like your four. Yeah, hey, let's, let's work on that. Let's, let's, let's get NWF and some of these other groups together and try to get those four across the finish line.

[David Wilms]

Yeah, and I should say that's my four. That's David Williams. That's not nwf.

[Brittany]

I know, I know. I'm saying let's, let's talk them into it.

[David Wilms]

That's me, that's my four.

[Brittany]

Let's, let's talk them and DU and all the other groups and, and TNC and all the big, big ones. And let's csf, let's, let's put together a plan and say, hey guys, let's, let's get these things through. So everybody out there, Blood Origins, we thank you for being here today. David Wilms, thank you for all of your very, very good, very thorough, exceptional work on the esa. I hope you continue to do the same thing. You're doing for a lot longer and I hope you come back on our podcast.

[David Wilms]

No thanks. I'd love to come back. Yeah, that'd be great. I'd love to.

[Brittany]

All right, awesome. We will talk to David Wilms soon and thank you guys for joining us. Have a good day.

[Mike Axelrod]

Well, that's it for today. Appreciate you listening. As always, leave a review, share it with your friends and most importantly, do what's right to convey the truth around hunting.

[David Wilms]

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