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Texas Endangered Species Policy, Part I: Shining us on with Sound Science

Since taking office, Gov. George W. Bush has worked with the Texas Parks and Wildlife Department (TPWD) to stymie federal efforts to protect Endangered and Threatened species in Texas. Bush's philosophy of "letting Texans run Texas"(1) has taken its toll on many non-human Texans: namely the Arkansas River shiner and other species barely hanging on to existence on the planet. The Governor and his TPWD are infamous for supplanting strong federal protection for endangered species with "Texas-style" conservation. Larry McKinney, Director of TPWD's Resource Protection Division, rationalizes this evasion of federal standards with the following rhetorical question:(2)

"This is our home. Who could be more concerned that it is taken care of than those of us who live here?"

As the following story suggests, however, these lofty sentiments provide a smokescreen for state efforts to protect landowners from federal restrictions on ongoing landuse activities. A key part of these efforts has been state opposition to formal designation ("listing") of declining species as Endangered or Threatened under the federal Endangered Species Act (ESA)(3) . Once listed, these species gain full protection against direct and indirect forms of persecution, including destruction of habitat on private property. Listing of a species also increases the possibility of restrictions on federally-subsidized landuse activities.

In 1995, Bush's first year in office, the Governor successfully pushed for passage of a state takings law and other laws designed to limit the ability of local governments to protect endangered species and water quality.(4) The takings legislation augmented legislation sponsored by then republican state representative and now Texas Department of Agriculture Commissioner, Susan Combs, that blocked public access to information about endangered species occurrences on private property.(5) These efforts coincided with termination of TPWD's Texas Natural Heritage Program.(6) This program played a lead role in monitoring the status of rare species in Texas.

Texas Agencies Organize Secrete ESA Reauthorization Meetings with Property Rights Groups

As 1995 progressed, more drastic changes in endangered species policy in Texas took place. Gary Graham, an associate of Susan Combs and Chief of TPWD's Endangered Resources Branch, and Larry McKinney began meeting secretly with pro-ranching, pro-logging, pro-property rights organizations and agencies including the Texas Farm Bureau; Champion International, Texas Logging Council; Texas Wildlife Association, Texas and Southwestern Cattle Raisers Association, Texas Sheep and Goat Raisers Association, Texas Department of Agriculture, Texas Agricultural Extension Service, and U.S. Natural Resources Conservation Service, to craft "amendments and changes" to the federal Endangered Species Act,(7) then up for reauthorization by the U.S. Congress. The resulting position paper proposed a moratorium on further listings, reductions of federal powers to an advisory role, and elimination of most penalties for actions that harass or kill endangered species or destroy their habitat.(8) In a letter to Governor Bush, then Texas Agriculture Commissioner, Rick Perry, described this effort by special interest groups and agency reps as "science-based solutions . . . produced voluntarily by landowners and biologists".(9) Exposure of these meetings took place when Texas Natural Heritage Program employees leaked a draft of the proposed revisions and the participants to the Houston Chronicle. When asked why environmental organizations had been excluded from the process one unnamed TPWD official suggested it was because environmental organizations had "compromised their credibility with the department".(10)

The Arkansas River Shiner Misinformation Campaign

Shiner That same year, TPWD's Gary Graham traveled with a group of state legislators and other agency representatives, to a US Fish and Wildlife Service public hearing to present testimony about the proposed listing of the Arkansas River Shiner, a small minnow of the Texas panhandle and adjacent states.(11) In Graham's testimony he claimed "our biological evidence does not warrant listing the shiner as endangered in Texas." He then proposed to collect ". . . data on why the species is doing better in Texas".(12) McKinney presented similar statements in a letter to the US Fish and Wildlife Service.(13) Once released by TPWD, the statements of Graham and McKinney began appearing in newspaper articles as well as press releases and letters to FWS opposing listing of the species.(14) A key concern was the impact this listing would have on availability of water for agricultural purposes. One letter from Senator Kay Bailey Hutchison stated simply that "The Texas Parks and Wildlife Department has found that the record does not support listing the shiner".(15) Press releases from the Governor's Office and Texas Department of Agriculture(16) parroted TPWD's impression, as did one memo from the U.S. House of Representatives Committee on Resources to the House's Endangered Species Act Task Force which was submitted during ESA reauthorization hearings.(17)

The Truth Comes Out

The statements of Graham and McKinney conflict with what was actually known by TPWD at the time of the Public Hearings. TPWD biologists had clearly documented declines in the distribution of the shiner and urged listing of the species, at least as Threatened.(18) A key summary of the historical status of the shiner was discovered by Texas PEER among photocopied Texas Natural Heritage Program files removed from TPWD upon termination of the heritage program in 1995. This summary was not included by TPWD in materials provided to Texas PEER in response to two formal Public Information Act requests.

The suppressed historical summary concluded that:

"Based on the analysis of collection information for the shiner in Texas, Arkansas River shiner populations in Texas have declined, with the possible exception of one location at Pampa. Past management of the species has not been sufficient to prevent habitat loss or a considerable reduction in population. The remaining populations are crucial to the continued existence of the Arkansas River shiner throughout its historic range.

Considering the declines experienced by the shiner, the need for aggressive protection and restoration, not just monitoring, of existing populations in Texas is indicated. While populations in Texas may now be stable (we have no data to support this, we are only assuming that populations stabilized as the amount of habitat within the riparian zone stabilized), the provisions of the Act are needed to conserve this species in Texas, as well as range wide. One option being considered would involve reclassification as Threatened, if aggressive recovery actions are implemented. Withdrawing the proposed rule, however, does not appear to be a viable option, based on current information."

Complaints from staff biologists about the deceptive TPWD testimony before the Fish and Wildlife Service triggered an internal investigation, one of several focusing on Graham's personal conduct during the period 1993-1996.(19) In this case, however, TPWD allowed McKinney to supervise this investigation of the activities of his own division.(20)

The resulting report disclosed that among other things, Graham failed to acknowledge severe declines in surrounding states, as well as data showing the species to more widely distributed in Texas in the 1950's. He also failed to acknowledge sampling attempts that captured no shiners.(21) This process inflated estimates of the abundance of this species. The report also noted that Graham had failed to provide investigator, Leland Russell, certain data sets sent to Graham by shiner expert, Joe Kraai. In an August 8, 1995 memo, Graham admitted to Larry McKinney that he had received "a more complete set of survey data that did not include any additional positive data. . . " and that ". . . inclusion of the negative data would have biased the sample to under represent shiners." He also suggested that the missing data may have been ". . . filed someplace else." Despite these problems, Graham described as "absolutely false" allegations that he had manipulated data to make the shiner appear more common than it actually was.(22)

Compromise to Avoid Listing Leaves the Shiner High and Dry

After Texas's initial opposition to listing (March 1997), TPWD, Oklahoma, Arkansas, Kansas, and the US Fish and Wildlife Service began discussing the possibility of a Candidate Conservation Agreement in lieu of listing the shiner as endangered. Candidate Conservation Agreements are non-binding, voluntary agreements approved by the Fish and Wildlife Service to justify conserving declining species before there is an urgent need for listing as Endangered or Threatened.(23) At the same time, Texas, Oklahoma, and the Fish and Wildlife Service developed a non-binding Memorandum of Understanding (MOU) designed in part to insure that future listing of the shiner would not impact availability of water for human use, nor impact so-called "traditional agricultural activities".(24) The MOU's other function was to justify a "Threatened" status instead of the original "Endangered" status. One letter sent to the Fish and Wildlife Service by Larry McKinney (May 1997) urged that Fish and Wildlife expedite acceptance of these provisions by minimizing the period of public comment on the proposed rule and Memorandum of Understanding while also proposing immunity for "cities and utilities" against prosecution under the Endangered Species Act.(25)

State Heel-Dragging Triggers Lawsuit to Force Listing

Listing of the Arkansas River Shiner as a Threatened Species finally occurred in November 1998--four years after the initial proposal for increased protection--in response to a lawsuit filed by Center for Biological Diversity and the Sierra Club.(26) This lawsuit forced implementation of the original recommendations of TPWD staff. As the final rule points out, TPWD had even failed to list the Arkansas River Shiner under Texas' own Endangered Species Act.(27) This deficiency provided further justification for judicial intervention since it demonstrated unwillingness by Texas officials to support even the most minimal levels of protection under Texas law. In a final chapter, the Fish and Wildlife Service has now been forced by another Center for Biological Diversity lawsuit to propose protecting 1,600 river miles and 42,600 acres of riparian forest as critical habitat for the shiner.(28)

Bush's TPWD: Protecting Wildlife or Big Business?

Despite obvious concerns about TPWD priorities, McKinney has defended his and Graham's management of this and related endangered species issues.(29) His summation of the investigations of Gary Graham portrays internal endangered species conflicts simply as ideological battles between conservationists and preservationists, with TPWD self-righteously committed to "neutrality" and the translation of ". . . science into natural resource policy." In fact, the paper trail shows TPWD endangered species controversies to be conflicts between honest government scientists doing their best to summarize available information, and dishonest bureaucrats doing their best to please their political bosses.

Tune in to Texas PEER's web site next week for Part Two: The Salamander Wars.

Copies of Public Information Request documents listed in the source cites below may be obtained by contacting Texas PEER. Those documents are identified as image names within []. The images may be downloaded to your computer for viewing from the image name links below. The image files average about 110,000 kb.

  1. Audrey Duff. Jan. 26-Feb. 1, 1996, Take Back Texas' Marshall Kuykendall Says It's Simply a Choice Between...Cowboys & Critters. Austin Chronicle, Vol. 15, Issue 21.
  2. Larry D. McKinney. 1996. Let Texans protect Texas. Austin American Statesman. Dec. 14 Issue.
  3. United States Fish and Wildlife Service webpage with links to copies of the Endangered Species Act and descriptions of the federal role in endangered
  4. Texas Public Employees for Environmental Responsibility (TxPEER). 1999. "Local Control" - Texas Style, Part I; and "Local Control"- Texas Style: Special Favors for Special Interests, Part II.
  5. Texas Public Employees for Environmental Responsibility (TxPEER). 1999. Texas PEER Uncovers Misuse of Federal Funds by Texas Parks and Wildlife Department: Criminal Complaint Filed.
  6. Robert Bryce. October 13, 1995. Heritage Lost, The Austin Chronicle, Volume 15 Number 7; and Sept. 26, 1995 Letter from Andy Sansom to Representative Robert Turner [TURNER1, TURNER2].
  7. January 11, 1995 memorandum from Gary Graham, Chief of TPWD's Endangered Resources Branch to staff. [ESA]
  8. Amendments and changes to the federal Endangered Species Act, A position paper. June 1995. Texas Department of Agriculture.
  9. Letter of June 8, 1995 from Texas Agricultural Commissioner Rick Perry to Governor George W. Bush. [PERRYESA]
  10. Bill Dawson, Environmental Groups Left Out of state's talks: Officials study revisions in Endangered Species Act. Houston Chronicle May 4, 1995.
  11. January 19, 1995 memorandum from State Representative David Swinford to Gary Graham, Chief Texas Parks and Wildlife Department, Endangered Resources Branch. [SWINFORD1, SWINFORD2]
  12. Testimony by Gary L. Graham, Chief Endangered Resources Branch. June 25, 1995. Texas Parks and Wildlife Department. [GRAHAM1, GRAHAM2]
  13. September 30, 1994 letter from Larry McKinney, Director, TPWD Resource Protection Division to Ken Collins, Ecological Services, United States Fish and Wildlife Service. [LKM1, LKM2]
  14. Susan Warren, April 19, 1995, Water Fight: Panhandle residents argue their rights over minnow's. The Wall Street Journal: Texas Journal. April 19, 1995; David Browser. Arkansas River Shiner looking like another big ESA battle. Livestock Weekly. October 20, 1994; and Associated Press. State blasts species prop: Leaders fault U.S. Plan to list minnow as endangered. Dallas Morning News January 25, 1995.
  15. September 23, 1996 letter from U.S. Senator Kay Bailey Hutchison to Secretary of the Interior, Bruce Babbit [KAY1].
  16. Texas Department of Agriculture Media Advisory. January 24, 1995. Listing of Arkansas River Shiner could give Texas a Black Eye. [PERRY1, PERRY2, PERRY3]
  17. Memorandum of March 8, 1995 from Committee on Resources Staff to Members, Endangered Species Act Task Force. Subject: Hearing on the Reauthorization of the Endangered Species Act.
  18. September 22, 1994 memo with attachments from David Bowles, TPWD Endangered Species Biologist to Gary Graham, Chief TPWD Endangered Resources Branch [BOWLES1, BOWLES2, BOWLES3, BOWLES4, BOWLES5, BOWLES6].
  19. Administrative Inquiry 95-005 Concerning actions on communication with two USFWS employees, completion of certain government reports, and personal conduct of Gary Graham (RP). Date of Assignment: January 30, 1995. Date of Completion: December 5, 1995. [INVEST]
  20. May 5, 1995 memorandum from Larry McKinney, Director of TPWD's Resource Protection to Leland Roberts. [LELINVES]
  21. May 24, 1995 memorandum from Leland Roberts, Resource Protection Division, to Larry McKinney, Director, Resource Protection Division. [LELAND1, LELAND2, LELAND3]
  22. August 8, 1995 memorandum from Gary Graham, Chief, Endangered Resources Branch to Larry McKinney, Director, Resource Protection Divison. [GRAHAM3, GRAHAM4]
  23. Barry, D.J. May 11, 1999. Safe Harbor Agreements and Candidate Conservation Agreements With Assurances: Final Rule. Federal Register 64(116):32705-32716, and 50CFR13.21 (Code of Federal Regulations, Title 50--Wildlife and Fisheries, Chapter I--United States Fish and Wildlife Service, Department of the Interior, Part 13--General Permit Procedures.
  24. Memorandum of Understanding among the United States Fish and Wildlife Service, the Oklahoma Department of Wildife Conservation, and the Texas Parks and Wildlife Department (undated). [MOU1, MOU2]
  25. May 6, 1997 letter from Larry McKinney, Director, TPWD Resource Protection Division to Jerry Brabander, Field Supervisor, USFWS. [LKMMOU]
  26. Mary Alice Robbins. March 19, 1998. Federal Suit seeks to save shiner: Conservation groups want to protect minnow's habitat in Panhandle. Amarillo Globe News.
  27. Final Rule to List the Arkansas River Basin Population of the Arkansas River Shiner (Notropis girardi) as Threatened. Federal Register: November 23, 1998 (Volume 63, Number 225)] [Rules and Regulations] [Page 64771-64799] (You will need to select 1998 Federal Register and put in some search criteria like the date or title to retrieve the document from the general search page.)
  28. Proposed Designation of Critical Habitat for the Arkansas River Basin Population of the Arkansas River Shiner. Federal Register: June 30, 2000 (Volume 65, Number 127:40576-40600.
  29. Larry McKinney. Management Review of Endangered Resources Branch. December 5, 1995. [INVEST7 INVEST8, INVEST9].

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