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The Endangered Species Act at Thirty
Renewing the Conservation Promise Volume 1
By Dale D. Goble, J. Michael Scott, Frank W. Davis
ISLAND PRESSCopyright © 2005 Island Press
All rights reserved.
J. Michael Scott, Dale D. Goble, and Frank W. Davis
Conserving the biological infrastructure that makes life possible is crucial to the survival of the human species. Providing the material requirements of the human population is a fundamental imperative. This is the dilemma of our time: how do we reconcile the preservation of nature with increasing human population and consumption?
This book examines one legislative effort to resolve the dilemma, the Endangered Species Act of 1973 (ESA 1973). The ESA was an idealistic and perhaps naive attempt to preserve humanity by preserving other species in the ecological support system that makes life possible. In the words of the House report accompanying the bill:
A certain humility, and a sense of urgency seem indicated.... One might analogize the case to one in which one copy of all the books ever printed were gathered together in one huge building. The position in which we find ourselves today is that of custodians of this building, and our choice is between exercising our responsibilities and ignoring them. If these theoretical custodians were to permit a madman to enter, build a bonfire and throw in at random any volume he selected, one might with justification suggest that others be found, or at least that they be censored and told to be more careful in the future. So it is with mankind. Like it or not, we are our brothers' keepers, and we are also keepers of the rest of the house. (U.S. Congress 1973, 4–5)
Species conservation was already a difficult challenge in 1973. The human population of the United States had increased from less than 4 million in the first census of 1790 to roughly 212 million by 1973 (Census Bureau 2000). This increase was accompanied by even more dramatic increases in per capita consumption of resources. The combination of population growth and increased consumption has driven a precipitous loss of nonhuman species that continues today: more than five hundred species formerly found in the United States are presumed to be extinct and an additional 47 percent of the species unique to this country are at risk (Master et al. 2000).
It has been thirty years since the ESA was signed into law on December 28, 1973, and the task of conserving at-risk species is more complex than ever. Societal pressures on wildlife habitat have increased. The U.S. population has increased nearly 40 percent since 1973 to 293 million (Doremus, this volume), and our gross domestic product is nearly eight times greater (Census Bureau 2004a). These increases have resulted in additional habitat loss and increased numbers of invasive, nonnative species, the two biggest threats to endangered species (Wilcove et al. 1998; Wilcove et al. 2000; Cox 1999).
The thirty years have produced a record that allows a preliminary evaluation of the extent to which the act's goals have been achieved. This book begins with an examination of what the Endangered Species Act has protected, focusing on species listed as either threatened or endangered. The second part, "Achieving On-the-Ground Conservation," examines the act's record viewed through the lenses of different land use systems and institutional actors. The third part, "Prospects," offers several perspectives on how the ESA could be strengthened while reducing its negative social impact.
First, however, we briefly review the evolution of at-risk species conservation and the legal requirements of the ESA.
The Evolution of the Conservation of At-Risk Species
The Endangered Species Act stands at the confluence of two strands of wildlife protection law. The first is nearly a millennium of common and statutory law intended to conserve game species. This is the traditional "hook-and-bullet" wildlife management that relies on take restrictions, such as closed seasons and bag limits, to maintain huntable populations of game species (Goble and Freyfogle 2002; Bean and Rowland 1997). The second strand of law—habitat protection—is equally ancient. Both the king in Parliament and colonial American legislatures routinely restricted land uses to conserve wildlife habitat (Goble and Freyfogle 2002). Although the tools—take restrictions and habitat protection—are ancient, the act's objectives are not. Indeed, the idea that it is important to save all the pieces is, in the sweep of things, a new perspective—and one that remains intensely contested.
From Game Protection to Endangered Species Preservation
Although legal protection of wildlife in the United States dates back to the colonial period (Goble and Freyfogle 2002), the post–Civil War period—with the near-extermination of the American buffalo (Bison bison) and the looming extinction of the passenger pigeon (Ectopistes migratorius)—produced a new urgency (Hornaday 1889). The massive, often-wasteful slaughter of wildlife that characterized the end of the nineteenth century produced a coalition of scientists, Audubon societies, and hunters that sought to conserve wildlife by closing down markets (Barrow 1998; Dorsey 1998; Doughty 1975; Dunlap 1988). Congress responded by enacting the Lacey Act, the first federal wildlife protection statute, in 1900 (Act of May 25, 1900). When that proved insufficient, the federal government negotiated a treaty with Great Britain (acting for Canada) to protect migratory birds (Dorsey 1998). Congress ratified the treaty (Convention with Great Britain for the Protection of Migratory Birds 1916) and enacted the Migratory Bird Treaty Act (Act of July 3, 1918), imposing a federal regulatory scheme for hunting migratory birds, and the Migratory Bird Conservation Act (Act of February 18, 1929), authorizing the creation of a refuge system for migratory birds. Apart from migratory birds—and a 1940 statute nominally protecting the bald eagle (Haliaeetus leucocephalus) (Act of June 8, 1940)—the federal government remained largely uninvolved in wildlife conservation; the wildlife management system created during the Progressive Era lasted until the 1960s.
This wildlife management system was focused primarily on game species. There was, however, some recognition that species threatened with extinction also required special management. In 1936, Aldo Leopold—as always, at least a step ahead—published a short article entitled "Threatened Species" in which he argued that preservation of species such as the grizzly bear (Ursus arctos horribilis) and the ivory-billed woodpecker (Campephilus principalis) was "a prime duty of the conservation movement" (Leopold 1936, 230). In 1937, the Bureau of Biological Survey—enjoying a brief golden age of funding under the leadership of J. N. "Ding" Darling—acquired the Aransas National Wildlife Refuge in Texas to protect the wintering grounds of the critically imperiled whooping crane (Grus americana) (Allen 1952; McNulty 1966). And in 1942, a committee drawn from the U.S. Fish and Wildlife Service (USFWS) and the National Park Service produced a book entitled Fading Trails: The Story of Endangered American Wildlife. The book was written
to show how certain forms of wildlife have approached the brink of extinction.... It attempts to explain the poor economy of allowing any wildlife species to pass completely from being, if it is possible for such disaster to be averted. All forms of animal life, whether they be game species, fur bearers, predators, or what, are valuable in nature's enduring battle for perfection. Each form of life does its bit to help maintain the elusive "balance" between all living things. (Beard et al. 1942, ix)
A gangly looking but graceful bird emerged as a potent symbol of a species on the brink. The whooping crane had been in trouble since the end of the nineteenth century as a result of agriculture, drainage, settlement, and hunting: by 1912 its population numbered fewer than ninety birds; ten years later it was less than half that number; by 1938, when the Aransas Refuge was established, there were fewer than twenty remaining (Allen 1952, 80; Lewis 1995). Only then did the whooping crane's perilous situation catch the attention of the public, symbolizing what America stood to lose by ignoring the growing numbers of endangered native species. By the middle of the 1950s, the USFWS was holding press conferences and newspapers were reporting the annual count of whooping cranes (McNulty 1966), which gradually rebounded to 325 birds in the summer of 2005 (Tom Stehn, USFWS whooping crane coordinator, pers. comm.). The cranes contributed to the broadly based environmental consciousness that was beginning to stir in the United States.
Two decades after the publication of Fading Trails, the Department of the Interior created the Committee on Rare and Endangered Wildlife Species (Yaffee 1982). Two years later in 1966, the committee published a preliminary list of 331 species divided into three categories of concern: 130 species considered either rare or endangered; 74 species at the edge of their range (and therefore at risk); and 127 species of "undetermined" status (Committee on Rare and Endangered Wildlife Species 1966). This list, known as the Redbook, lacked any legal force; indeed, it contained one species, the Utah prairie dog (Cynomys parvidens), that another federal agency was trying to eradicate. The Redbook did, however, increase awareness of the risk of extinction.
The first legislative response to increasing public concern for endangered wildlife came in 1963. Acknowledging that habitat loss was a significant cause of extinction, Congress included a provision in the Land and Water Conservation Fund Act (Act of May 28, 1963) allowing monies to be used in "the acquisition of land, waters, or interests in land or waters ... [f]or any national area which may be authorized for the preservation of species of fish or wildlife that are threatened with extinction" (Act of May 28, 1963, sec. 460l-9(a)(1)). This language embodied two fundamental changes that reflected the increased scientific and popular awareness of ecology: first, it provided for the preservation of wildlife rather than the management of game species and, second, it specified that protection was to be accomplished through habitat preservation rather than take regulation. Zoo specimens—like the Victorian curio cabinet—were no longer sufficient: wildlife was to be preserved in the wild.
The first federal endangered species act was the Endangered Species Preservation Act of 1966 (ESPA 1966). As with the Land and Water Conservation Fund, the ESPA focused on habitat protection. This focus on habitat, however, ignored the impact of taking and commercial activities on wildlife populations. It also ignored the international aspect of extinction: the American market was often the cause of problems elsewhere in the world. The failure to regulate these activities was partially remedied in 1969 when Congress extensively supplemented the ESPA and renamed the combined statute the Endangered Species Conservation Act (ESCA 1969). The ESCA provided a more comprehensive but still limited program that emphasized the regulation of interstate and foreign commerce in species listed by the secretary of the interior as endangered.
In the ESCA, Congress instructed the secretaries of the interior and state to call an international conference on protecting endangered species. The conference finally convened in Washington, D.C., in February 1973 and drafted the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES 1973), a multilateral treaty that was signed in March 1973. CITES established an international system of import and export permits that created a control structure to regulate international commerce in species designated for protection.
The enactment of the ESA reflected a broad consensus that existing federal law was inadequate to preserve at-risk species. In his 1972 environmental message, President Richard Nixon concluded that federal law "simply does not provide the kind of management tools needed to act early enough to save vanishing species" (Nixon 1972, 223–24); congressional leaders offered a similar analysis (Dingell 1973). The act was among the least controversial bills enacted by Congress in 1973: the bill was passed by the Senate 92–0; an even more stringent bill passed the House 390–12. Following a conference to resolve the differences, the Senate passed the bill without dissent on a voice vote and the House adopted it by an overwhelming 355–4 (Yaffee 1982).
The Endangered Species Acts
The central substantive and procedural requirements of the Endangered Species Act are set out in five sections:
Section 4 establishes procedures for listing species as either threatened or endangered, for designating critical habitat, and for preparing recovery plans for listed species.
Section 7 requires federal agencies that authorize, fund, or carry out an action—"federal action agencies"—to consult with the U.S. Fish and Wildlife Service in the Department of the Interior or with the National Marine Fisheries Service in the Department of Commerce—the "federal fish and wildlife agencies"—to "insure that actions authorized, funded or carried out by them do not jeopardize the continued existence" of listed species.
Section 9 prohibits any person from taking or engaging in commerce in endangered species.
Section 10 provides exemptions, permits, and exceptions to section 9's prohibitions.
Section 11 specifies the civil and criminal penalties applicable to the violations enumerated in section 9.
As this outline suggests, the ESA envisions a linear process: when a species is at risk of extinction, it is listed as either endangered or threatened and its critical habitat is designated. The USFWS prepares a recovery plan for the species that specifies how the threats to its continued existence will be removed or mitigated so that the species no longer requires protection under the act. In the interim, the species is protected under the provisions of sections 7 and 9 from all activities not exempted or permitted pursuant to sections 10 and 11.
The act also includes a "cooperative federalism" provision in section 6(c) that authorizes the secretary to enter into a cooperative agreement with any state that established "an adequate and active program for the conservation of" listed species that is "in accordance with" the act and a list of criteria (ESA sec. 6(c)). Despite the breadth of the provision, it has had little impact on the evolution of the protection at-risk species. In part, this reflects state reticence, since most species that reach the point of being listed have been subject to long periods of state management. In part, it also reflects the continuous underfunding of conservation in this country.
The ESA in its first incarnation embodied "prohibitive policy"—in Steve Yaffee's apt phrase (Yaffee 1982). For instance, in Tennessee Valley Authority v. Hill (1978, 74), the Supreme Court noted that the prohibitions on jeopardizing a listed species "admit to no exception"; the Court could have written the same phrase about the prohibition against "take," which was defined far more expansively than "kill" (ESA sec. 3(18)). While people continue to speak of the "Endangered Species Act of 1973," the current version of the act is markedly different than the original. It is useful to think of these changes as embodying four ESAs—the original 1973 version, the ESA that emerged from the 1978 and 1979 amendments, the ESA of the 1982 amendments, and the fourth version, the product of the administrative amendments of the 1990s. This combination of legislative and administrative amendments has transformed the act from a prohibitive law into a flexible, permitting statute (Houck 1993; Fischman and Hall-Rivera 2002; Greenwald et al., this volume; Suckling and Taylor, this volume), as demonstrated by the following three examples.
Excerpted from The Endangered Species Act at Thirty by Dale D. Goble, J. Michael Scott, Frank W. Davis. Copyright © 2005 Island Press. Excerpted by permission of ISLAND PRESS.
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