For over twenty years the Endangered Species Act (ESA) has been a powerful animal protection/conservation law, providing the critical umbrella under which threatened animals and plants receive the protection necessary for their future stability.

In 1967, 78 species were given formal protection in the United States under the relatively weak Endangered Species Preservation Act signed by President Johnson. As of March 1, 1995, a total of 955 U.S. species (430 animals) receive protection by the United States Department of the Interior's Fish and Wildlife Service (FWS) under the ESA, as modified in 1973 and in subsequent reauthorizations. Additionally, over 4,000 species are identified as "'candidates" awaiting actual listing as threatened or endangered.

The 1973 law, as amended, makes it unlawful to import listed species into the U.S. without a permit, take (defined as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect") a listed species within the U.S. or upon the high seas, possess, sell, or transport a listed species, among other restrictions.

As a result of the prohibition on these consumptive uses of endangered wildlife, the ESA boasts numerous success stories, helping stabilize declining populations, and in some instances, recovering the species completely.

American alligators in the Southeast, gray whales off the West Coast, and bald eagles throughout the Southwest have all benefited from protection under the Act. Each state has one or more success stories attesting to the law's importance and efficacy. According to FWS estimates, "nearly 40% of listed species are stable or improving." This is especially significant since protection under the Act comes at a critical stage in the decline of species' population. FWS Director Mollie Beattie, appropriately dubbed the ESA "the emergency room of conservation policy."

Animals deserve protection because they have an intangible individual worth and unknown value to their ecosystems and the varied inhabitants within them – including humans. Numerous plants (some threatened themselves, others found in critical habitat for other listed species) have proven medicinally useful. For example, the Madagascar periwinkle has aided in the treatment of lymphocytic leukemia, and the Pacific yew has been crucial in the fight against ovarian and breast cancers; countless undiscovered species may hold the answers to the ills that plague humankind. Although less charismatic than most animals, plant conservation is vital to human health and our planet's future.

Esteemed Harvard University Professor Edward 0. Wilson co-authored a letter to members of Congress highlighting the pressure that humans are putting on the earth's biota and the deleterious effect it may ultimately have on our own species:

"...the loss of species today is due almost entirely to human-caused environmental disturbances, principally, habitat destruction. Moreover, the extinction of species and races represents an irreversible loss to the planet's biological diversity, depriving us of the ecosystem services species provide, as well as their enormous values, known and yet to be discovered, for medicine, agriculture, industry, recreation, and our spiritual well-being."

Opponents of the ESA, however, are inexplicably blind to these compelling conservation arguments in their unswerving quest to weaken the Act.

The ESA has come under mounting criticism by a powerful force in America, the "wise use" movement, which promotes the unfettered consumptive use of wildlife and natural resources. The movement and its spokespeople threaten to eviscerate the Act, undermining years of diligent work by Congress and compassionate citizens, and erasing countless species from the planet.

GHOST TOWNS AND WILDFIRE

Lack of support for the Act may stem from its broadened scope, not only protecting charismatic megafauna such as elephants and whales, but increasingly aiding obscure fish and other non-mammalian species. The arguments of the law's detractors are fueled by unqualified horror stories surrounding the ESA and the purported threat it poses to private property rights in America.

Two specific scenarios exemplify the hyperbolic creationism of ESA opponents: the 1990 listing of the spotted owl in the Pacific Northwest and the tragic 1993 California wildfire.

For years the battle has raged over whether the ESA and environmental laws cause forestry unemployment or if automation and the export of raw logs were the main culprits, as wealthy logging companies cut their employees out of jobs. The 1990 "threatened" listing of the northern spotted owl caused an enormous uproar in the timber community, generating doomsday predictions of the end of an American industry.

In October, 1994, however, The New York Times published a story beginning "By now, the timber communities of Oregon were supposed to be ghost towns." The report continues: "Three years into a drastic curtailment of logging in federal forests, the top timber-producing state has posted its lowest unemployment rate in a generation, just over 5 percent." Timber worker retraining and high technology-industry relocation to Oregon have helped positively mediate the impact of protecting owls and the ecosystems on which they and a myriad of other species depend. Springfield, Oregon, Mayor Bill Morrisette summed it best when he admitted, "Owls versus jobs was just plain false."

A similar scenario unfolded south of Oregon, in California. After 29 homes were destroyed by sweeping fires near Riverside, ESA opponents alleged that protection afforded the endangered Stephens' kangaroo rat was to blame for the unfortunate devastation. As part of the plan to protect the species' habitat, "disking" land for weed abatement (turning the soil to reduce vegetation surrounding homes and provide a protective barrier from wildfire) was prohibited – but other forms of weed abatement, such as mowing, were allowed.

When asked to determine the facts surrounding the loss of homes during the California fire, the United States General Accounting Office (GAO) concluded: "No data or evidence exists to conclusively determine why the fire destroyed each of the 29 homes. ...weed abatement by any means would have made little difference in whether or not a home was destroyed in the California fire."

Congressman Gerry Studds (D-MA), a long-time supporter of the ESA and champion of strong reauthorization legislation the last two sessions of Congress, issued a press release entitled, "The Rat Didn't Do It," asserting: "The GAO report should quiet those who, in the aftermath of the fire, seized upon the personal tragedies of these California homeowners to advance their own agenda to eviscerate the Endangered Species Act."


THERE'S A NEW SHERIFF IN TOWN

The Act faces a strenuous congressional reauthorization battle this year as its champions are forced to defend the law as an effective measure against species extinction. Leading the pack determined to dismantle the ESA is Republican Congressman Don Young of Alaska, the newly crowned Chairman of the House Natural Resources Committee (which now has jurisdiction over the Act). In an interview with the Bureau of National Affairs, Young expressed that "priority number one was be a revision of the Endangered Species Act...," which he hopes will be accomplished by late summer.

Congressman Young is steadfast in his opposition to the existing ESA and its supporters, calling Washington, D.C., environmentalists "the self-centered bunch, the waffle-stomping, Harvard-graduating, intellectual bunch of idiots that don't understand that they're leading this country into environmental disaster." To the contrary, ESA advocates are shrewd enough to know that without the ESA as a final protective option for the survival of threatened and endangered species, they will disappear so fast that an environmental catastrophe may be unavoidable.

COMMON SENSE CONSERVATION?

It is with great dismay that one will not find a strong ESA reauthorization bill yet introduced in either the House of Representatives or Senate.

While we wait, the destruction has begun. Under the faulty rubric of putting common sense into the Act, America's political leaders are promoting legislation that would dismantle the law's basic mechanisms.

On April 10, 1995, President Clinton signed the multi-billion dollar Department of Defense supplemental appropriations bill. Attached to the fiscal replenishment was an amendment that cuts $1.5 million from the FWS budget for listing species and identifying the habitat critical for their survival. It also prohibits using any of the meager remaining funds for "making a final determination
that a species is threatened or endangered or that habitat constitutes critical habitat." For the remainder of this fiscal year, species on the "candidate" list will languish, and possibly disappear forever, before the primary mechanism for their survival call be put into motion.

Three days after President Clinton signed the bill, a New York Times report revealed that ESA reauthorization legislation introduced by Senator Slade Gorton (R-WA) was written by lawyers representing the "timber, mining, ranching,, and utility interests that have been most critical (and most affected) by the law." Gorton is quoted as saying, "I don't think that's how good public policy should be made, but I'm perfectly willing to get the free services of good lawyers..."

The bill empowers a designated political appointee (ostensibly the Secretary of the Interior) with the authority to decide if and how to save a species. If a single job could be lost by protecting that species, protection could be withheld. The law would also be retroactive, allowing the designee to eliminate existing species protection. Gorton noted further, "It doesn't undo everything that's being done. But I suspect it would end up having that effect."

Listed in 1974, the red kangaroo was removed from the list in March, 1995. Due to current harmful factors, the Fish and Wildlife Service will monitor their populations.	Falcon populations in the lower 48 states have increased dramatically due to rearing programs leading to reintroduction into the wild.
	After being listed for twenty years, American alligators were pronounced fully recovered in 1987.

HOME SWEET HOME

Although the legislative branch has thus far been uncooperative, the judicial branch has emerged an unlikely ally. The Supreme Court of the United States decided on June 29, 1995, that destroying habitat necessary for species survival does, in fact, "harm" the species, and is a prohibited action under the law. The 6-3 decision in Babbitt, Secretary of the Interior, et al. v. Sweet Home Chapter of Communities for a Great Oregon, et al., enforces the notion that it is not only vital to protect individuals of a species, but also to preserve the habitats on which the species depends for its long-term survival.

Writing for the majority, Justice Stevens asserts that "the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid." Justice O'Connor, in a concurring opinion, suggests that "Breeding, feeding, and sheltering are what animals do. If significant habitat modification, by interfering with these essential behaviors, actually kills or injures an animal protected by the Act, it causes 'harm' within the meaning of the regulation."

Justice Scalia's dissent on behalf of the Chief justice and Justice Thomas politicizes, rather than interprets, the ESA. It exemplifies the misguided rationale of the pro-use community. Scalia writes: "The Court's holding that the hunting and killing prohibition incidentally preserves habitat on private lands, imposes unfairness to the point of financial ruin – not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use." The three dissenting Justices seem to have fallen prey to the myth that the ESA causes rampant abuses of the right to own private property.

MINE, MINE, ALL MINE!

Though no federal court has ever found that, as a result of the ESA, private property has been "taken" as defined by the Fifth Amendment to the Constitution, numerous bills have been introduced to guard against the perceived improper applications of the law. The introduced legislation reads like a list of headlines from industry propaganda: "Farm, Ranch, and Homestead Protection Act of 1995," "'Private Property Restoration Act," "Private Property Rights Litigation Relief Act of 1995," etc. These bills focus the citizens' reactionary distaste for governmental bureaucracy and regulatory structure on the ESA and similar environmental laws.

If the private property advocates in Congress succeed in their dismemberment of the Act, the threat of development and pollution could become financially profitable. A landowner merely expressing interest in building a shopping center or turning property into a toxic landfill, but prevented in doing so because that portion of the land is habitat designated for an endangered animal, could claim that the property has been "taken," requiring monetary compensation by the U.S. Government – at taxpayers' expense!

ESA detractors often cite alleged and potential conflicts with project development and use of land as a reason to weaken the law. A 1992 study by the World Wildlife Fund, however, reveals that for the five year period between 1987 and 1991, 2,000 projects underwent formal consultations with the FWS to determine whether or not they would conflict with protection for a listed species. Ultimately, only 18 activities were blocked, cancelled or terminated – a less than 1% rejection rate. If the Service's scientific work is funded and performed expeditiously to discover where "at risk" species are and how many individuals remain, well-intentioned property owners will know the status of their property and how to proceed legally with minimal impact on their plans.

Under the existing law, developers can get a special permit to allow the "incidental take" of individuals of a species, provided the landowner takes certain steps to ensure the long-term conservation of the species.

Ultimately, the Act should reward landowners who actively work to conserve listed species. For instance, funds should be made available through Habitat Conservation Plans (HCPs) to assist in the acquisition of additional property. These funds will enable property owners to set aside an area of existing property which is home to a listed species and continue developing without burdensome restrictions by borrowing the money necessary to purchase additional land. This and other conservation incentives may prevent potential "trainwrecks," as Interior Secretary Babbitt refers to them, between landowners and the law – a proactive, rather than reactive approach to conservation.

The Act works effectively when citizens are willing to work with the Act.

AN INEXPENSIVE, BOUNTIFUL LEGACY

Upon signing this landmark law in 1973, President Nixon commented, "Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans."

Twenty-two years later we are again confronted with the question of how much effort to expend to protect America's magnificent wildlife. The Department of the Interior 1996 budget request is roughly $89 million dollars for the implementation and enforcement of the ESA. Conservatively, that is 36 cents per U.S. citizen – a small price to pay for our natural heritage and possibly our future. If we are unwilling to make this modest investment, our collective conscience will surely make cowards of us all.

Animal Guardian Volume 8, No. 3, 1995, p. 5-8, 15.

Reprinted with permission from the Animal Guardian, Doris Day Animal League
http://www.ddal.org