In a highly anticipated ruling June 30, the U.S. Supreme Court rejected arguments by the timber industry that the 1973 law mostly exempted private lands. By a 6-3 count, the justices overturned a lower court ruling in the case, Babbitt vs. the Sweethome Chapter of Communities for a Better Oregon, which had held that the law could not require private landowners to protect the habitat of the northern spotted owl.
Plaintiffs argued that the law only banned actions that directly killed or injured the bird, but only three justices agreed: Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas.
"The court recognized what every fourth-grader knows," says Nick Boutis, a spokesman for the 300-member Endangered Species Coalition. "You can't protect the species if you don't protect the habitat."
Environmentalists also cheered a second ruling in June, by the 9th Circuit Court of Appeals, regarding the endangered Bruneau Hot Springs snail. It lives only in thermal springs along a five-mile stretch of the Bruneau River in southwest Idaho, which farmers tap to irrigate crops.
In December of 1993, the Idaho Farm Bureau and Idaho Cattlemen's Association convinced a federal judge that the snail could be removed from the list of endangered species because the U.S. Fish and Wildife Service had illegally delayed its listing. Two Idaho conservation groups appealed the decision, and on June 30 a three-member panel of judges unanimously overturned it and reinstated the mollusk on the list.
Conservative members of Congress seized on the court decisions as more evidence that the current Endangered Species Act hurts private landholders and must be overhauled.
"The federal government has been running roughshod over property rights, and the courts have made it clear that only Congress can fix the problem," said Sen. Phil Gramm of Texas, a candidate for the Republican presidential nomination.
No champion of reform looms bigger than Sen. Slade Gorton, Republican from Washington state. Earlier this year Gorton introduced a bill that would change the ESA's definition of harm, prohibiting only those actions which result in the direct death or injury of a species. His bill, S. 768, would also allow the Interior secretary to set recovery goals for endangered species, regardless of the scientific evidence.
"It creates an unchallengeable, one-person God Squad," says David Wilcove, a biologist with the Environmental Defense Fund. "The first James Watt that gets in can destroy the habitat."
Wilcove says he is dismayed that Gorton's bill, which has attracted just a dozen sponsors, would allow the U.S. Fish and Wildlife Service to delay listings and allow other federal agencies such as the Forest Service to avoid consultation with federal biologists. Although he has been criticized by public interest groups for allowing industry to write the bill, Gorton says S. 768 is a reasonable reform that puts a human face on the law.
Wilcove disagrees: "It's hard to imagine a more extreme bill. The Gorton bill takes the act, rips it with a sharp knife from throat to belly, pulls out the innards and leaves a shell."
The Endangered Species Act is also attacked on other fronts in Congress. The House of Representatives is working on an Interior Department appropriations bill that would extend a moratorium on all endangered species listings until September 1996. Critics in Washington say this is a less-than-subtle way of pressuring key members of Congress to rush ahead with a reform bill.
But the fast-acting House has fallen well behind its own time frame for reauthorizing and revamping the act. Despite promising a House floor vote on legislation this summer, Resource Committee Chairman Don Young, R-Alaska, has yet to produce a bill. That could push the debate into 1996, and may signal that the Republicans do not yet have a unified approach to the issue.
Some environmentalists welcome the delay. Says Wilcove, "Anything that could provide for more public discourse is beneficial."
Pam Eaton, an endangered species specialist for the Wilderness Society in Denver, says environmentalists will use any extra time to convince members of Congress that the law needs fine-tuning, rather than a complete remake.
"We don't need reauthorization (as a method) to create incentives for private landholders to protect endangered species," she says. "What we need is money."
* Paul Larmer
Paul Larmer is associate editor of High Country News.
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