A tough law meets tough foes

  • Aldo Leopold

    State Historical Society of Wisconsin, WHI (X3) 12857
  • Cartoon showing vote to oppose or extend Endangered Species Act

    Steve Greenberg
  • Sketch of eagle in flight

    Diane Sylvain
  • Cartoon of spotted owl carrying the last logger away in its talons

    Jack Ohman

Note: this article is one of several in this issue about the Endangered Species Act.

In his classic 1940s essay, "Round River," Aldo Leopold made the case for conserving biological diversity: "saving all the parts' of the natural world. "To keep every cog and wheel is the first precaution of intelligent tinkering," Leopold wrote.

That powerful statement, along with the Earth Day-generated environmental fervor of the early 1970s, led Congress to pass the Endangered Species Act of 1973 by an overwhelming majority. President Richard Nixon signed it into law, making Leopold's lofty goal the law of the land.

The act was enormously popular because it seemed focused on saving big and glamorous predators such as bald eagles and grizzly bears. What most congressmen and senators overlooked as they demonstrated their environmental credentials was the magnitude of their action. They had approved the most unequivocal environmental law ever written.

In other laws, federal agencies are required to provide protection "where practicable." But supporters of the act argued that those two words had prevented the Endangered Species Act of 1966 from stopping the decline of eagles, whales and whooping cranes.

Four federal officials made sure "where practicable" was purged from the final version of the 1973 law: Interior Secretary Charles "Chip" Bohlen, Frank M. Potter Jr., counsel to the House Merchant Marine and Fisheries Committee, Lee M. Talbot, a senior scientist at the Council on Environmental Quality, and Earl Basinger, a U.S. Fish and Wildlife Service biologist.

The law they wrote made protecting endangered species the highest legal priority of government, for it handed two agencies, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, ultimate veto power over all other federal agencies as well as over other activities funded or regulated by the federal government.

"It was only some time after its passage that people realized its implications," Bohlen said in the new book about the act, Noah's Choice, by Charles Mann and Mark Plummer. "We certainly didn't advertise it, why should we have? It was not our intent to ring alarm bells."

"It wasn't a matter of skulking around in the back hall putting in words that nobody read," Talbot added, "but rather to openly strengthen it to the maximum."

Despite its extraordinary powers, the act's absolute mandate to conserve species has survived nearly intact for 22 years. Political pressure and bureaucratic tentativeness have held back agencies from flexing their muscle so that enforcement rarely prompted spirited opposition.

Then came 1976 and the Supreme Court's ruling on the Tellico Dam, that work had to be halted to protect the snail darter. Congress responded by establishing an exemption process, which allowed species protection to be waived by a committee dubbed the "God Squad."

Now, more than any other time in 22 years, the law faces major revisions that could scale back the federal government's commitment to Leopold's logic. First, the 1994 election washed away Democratic control of the House Natural Resources Committee. Rep. Don Young, R-Alaska, a vocal critic, replaced Chairman George Miller, D-Calif., one of the act's staunchest defenders. Republicans eliminated the Merchant Marine and Fisheries Committee, which had been headed by supporter Gerry Studds, D-Mass.

Second, environmentalists chose a risky strategy when the act came up for reauthorization in 1992: delays out of fear of the surging "wise-use" movement and its logger and timber company adherents. Two years later they delayed again, fearing that "takings" provisions might be attached to the act requiring the government to pay landowners for losses it caused. But the climate grew more hostile to the act.

The first hundred days of the 1995 House session saw environmental protection go into free fall across the board. The House-passed Contract for America included bills to compensate landowners when the value of any portion of their property is reduced by 20 percent or more by the Endangered Species Act or the Clean Water Act's wetland rules. It also would put in place a regulatory cost-benefit analysis that would put on hold for 45 days all regulations with an economic impact of $100 million or more.

Last month, President Clinton signed a moratorium on all new listings of threatened or endangered species through September. The legislation was attached to a defense spending bill by Sen. Kay Bailey Hutchison, R-Texas, and won a surprising 60 votes in the Senate.

Warnings such as that of Heather Weiner, a counsel for Defenders of Wildlife, were ignored: "There are species that will go extinct in the next six months."

The tide had definitely turned. A year ago Interior Secretary Bruce Babbitt said the Endangered Species Act did not need a major overhaul, as he pressed federal agencies to take a more flexible approach. Then this March, Babbitt expressed a new view about reform before a Senate subcommittee.

"I think the time is ripe, and I think we come to table with some very helpful experience," he said.

Babbitt outlined his plan for reform, which includes exempting property owners with less than five acres from the act and granting more authority to the states to manage endangered species. Environmentalists reacted coolly.

"Five acres can be the world to some species," said Jim Waltman, the Wilderness Society's director of refuges and wildlife.

"It's the endangered species that will be the big losers," added Randall Snodgrass, director of Wildlife Policy for National Audubon. "State governments would like nothing more than to manage endangered species."

He pointed to the Wyoming Legislature's recent bill which would have placed a $1,000 bounty on endangered wolves as an example of the kind of management that could be expected from states.

Many environmentalists say Babbitt's major mistake was caving in so early in the process. Now Babbitt's plan appears to have become the floor on which changes pushed by opponents will be built.

Before Congress acts, however, the U.S. Supreme Court may decide how restrictive the Endangered Species Act can be on private and state land. On April 17, the court heard arguments on "Babbitt vs. Sweet Home Communities for a Greater Oregon."

The case came from the U.S. Appeals Court of Washington, D.C., which decided last year that the act's prohibition against "harm" of a listed species does not include habitat destruction. If the appellate court is upheld, federal power to prevent habitat modification on state and private land will be severely limited.

When the act passed in 1973, Congress said no one could "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" the animals protected by the law. The U.S. Fish and Wildlife Service adopted a regulation two years later that spelled out "harm." It meant habitat destruction such as logging, farming or housing development.

Along came the owl

No one seemed to care until the northern spotted owl came along.

Once the owl was listed as threatened in 1989, the Fish and Wildlife agency told private landowners and the state of Washington they had to keep their saws off at least 40 percent of old-growth forest within a 1.8-mile radius of an owl nest.

That totaled 600,000 acres of private forest lands and another 100,000 acres of state land. Private landowners, unhappy with the restrictions, sued in federal court and lost. The decision was appealed and the appeals court ruled 2-1 last year that the prohibition against "harm" applies only to "direct application of force" against a listed creature.

Judges pointed to an obscure legal doctrine, noscitur a sociis, which is Latin for the maxim that a word is known by the company it keeps. Harm shares a sentence with harass, pursue, hunt, shoot, wound, kill, trap, capture and collect, they said, and all refer to direct action against an endangered species. That means Congress intended to define harm as an action against an animal, not its habitat, the judges said.

The Supreme Court vote is expected to be close; a decision should be announced this June.

If the federal government loses, some of the political pressure to relieve private landowners from restrictions will dissipate. That will place an even greater burden for protecting biological diversity on the millions of acres of federal lands in the West, where the most polarized battles have taken place.

On Forest Service and BLM land, the law is the linchpin of federal policy. Its protection of the northern spotted owl and Snake River salmon dictates management over millions of acres in the Pacific Northwest, and grizzly bears, wolves and caribou depend on millions of acres of still mostly wild lands in the northern Rockies. Restrictions on hydroelectric dams and water use have extended the act into every home and farm in the region.

"It was never the intent of Congress that this law should dictate the entire management of natural resources with a single goal - recovery of every species no matter what the cost to society," said Sen. Dirk Kempthorne, R-Idaho, who chairs the Senate subcommittee that will rewrite the act.

Rick Johnson, executive director of the Idaho Conservation League, said the failure of federal agencies to enforce laws such as the National Forest Management Planning Act, the Clean Water Act, and the Northwest Power Planning Act, has put extraordinary pressure on the Endangered Species Act.

"Emergency-room procedure is being used for an entire ecological health care program," he said. "You can't do all health care in the emergency room."

Without the act and its tough enforcement restrictions, there would be little left to force federal and state agencies to protect species like salmon, grizzly bears and the habitat on which they and hundreds of other species depend, Johnson added.

"Once the shield is gone there is nothing. You have no hospital, no emergency room ... you'll lose entire ecosystems," Johnson said.

Former federal official Talbot said the problem has not been with the Endangered Species Act but with the weakness of other environmental laws. He shares the view of Rick Johnson and many critics of the act that it has been used too much.

"One of the things that has concerned me over the years is that people use the act to stop actions they want to stop for other reasons," he said.

It wasn't until the late 1980s that environmental groups began taking the federal government to court, using the act's absolute mandate as a sword to reform forest management and stream protection. Today, even critics like Kempthorne acknowledge that many of the economic costs attributed to the act could have been avoided if more serious action had been taken to protect species earlier.

But these same critics bridle at the act's restrictions on logging, mining, ranching and other economic activities. Northwest senators such as Slade Gorton, R-Wash., and Bob Packwood, R-Oregon, have vowed to weaken the law's powers over the region's economy.

Calling on Noah

Kempthorne, who says he supports protecting biological diversity, said it is unrealistic to believe we can prevent all extinctions. He refers to Noah's Choice authors Mann and Plummer, who advocate restoring "practicability" to the act.

Fast becoming the critics' handbook, the book says the law must move away from the principle that all species have a right to exist. The authors say the nation already makes decisions on what species will survive or go extinct based on budget priorities, aesthetics and simple negligence. They call for an ethical, reasoned and responsible process for playing Noah, recognizing the inevitable role of politics.

"Crying 'no more extinctions' produces a noble sound, but does nothing to stop extinction," they write. "And it has the potential to worsen the plight of biodiversity, because demanding the perfect can prevent us from obtaining the merely good."

In place of the mandate, Mann and Plummer suggest Congress establish a Biodiversity Trust Fund, an idea of free-market environmentalist John Baden. The fund would provide for biodiversity projects much as foundations provide funding today. Landowners would apply to a national advisory board made up of distinguished biologists.

While Mann and Plummer's book lays out a logical plan for protecting endangered species on private lands, they hardly touch the challenges faced on federal lands or with federal projects. Even they recognize that when "where practicable" language was included in the 1966 bill it allowed federal managers to ignore the law's mandate to protect species. But they hope open debate will lead to national consensus for preventive care.

Talbot, now a professor at George Mason University in Virginia, is no fan of Mann and Plummer. He says they make it appear that preserving other species always conflicts with human activities. And if we are going to back off our commitment to save all the parts we must recognize what it means.

"We're saying the survival of a species should take second consideration to short-term economic benefit," Talbot said.

Jim Jontz is a former Indiana congressman who now heads the Endangered Species Coalition of 192 groups. Despite the odds, he said he is confident that environmentalists can stop the gutting of the act and preserve its mandate to protect all species. Polls continue to show strong national support for species protection, and with more than half the prescription drugs derived from plants and animals, he goes back to Leopold's logic about saving all the parts to defend the act.

"We can hold our ground on that point," he said.

Jontz said Republicans and Democrats will soon introduce a reform bill environmentalists will support. Environmentalists also pin their hopes on Republicans like Sen. John Chaffee, R-Rhode Island, who chairs the Environment and Public Works Committee that must approve any ESA reauthorization. Ultimately, they hope President Clinton will veto a bad bill.

Talbot sees the current anti-environmental wave in Congress as the natural swing of the pendulum from the great environmental victories of the 1970s. In most cases, the environment is resilient enough to survive these swings, he said, but it's different with endangered species.

"Undoubtedly there will be a counterrevolution but there will be much less to play with at that point, and we will have lost a great deal."

Rocky Barker is the author of Saving All The Parts: Reconciling Economics and the Endangered Species Act, published in 1993 by Island Press. He writes for the Idaho Falls Post-Register.

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