The Endangered Species Act at Thirty

Vol. 1: Renewing the Conservation Promise

Dale D. Goble, J. Michael Scott, Frank W. Davis, Dale D. Goble, J. Michael Scott, Frank W. Davis

• Publisher: Island Press
• Year: 2012
• Print ISBN:
  9781597260091
  9781597260084
• eBook ISBN:
  9781597266000
• Topic: Biological Sciences
• Subtopic: Zoology
• Index: Biological Sciences

The Endangered Species Act at Thirty is a comprehensive, multidisciplinary review of issues surrounding the Endangered Species Act, with a specific focus on the act's actual implementation record over the past thirty years. The result of a unique, multi-year collaboration among stakeholder groups from across the political spectrum, the two volumes offer a dispassionate consideration of a highly polarized topic.

Renewing the Conservation Promise, Volume 1, puts the reader in a better position to make informed decisions about future directions in biodiversity conservation by elevating the policy debate from its current state of divisive polemics to a more-constructive analysis. It helps the reader understand how the Endangered Species Act has been implemented, the consequences of that implementation, and how the act could be changed to better serve the needs of both the species it is designed to protect and the people who must live within its mandates. Volume 2, which examines philosophical, biological, and economic dimensions of the act in greater detail, will be published in 2006.

As debate over reforming the Endangered Species Act heats up in the coming months, these two books will be essential references for policy analysts and lawmakers; professionals involved with environmental law, science, or management; and academic researchers and students concerned with environmental law, policy, management, or science.

Part I What Have We Protected?

One measure of the Endangered Species Act can be captured in numbers: the number of species listed; the number of species recovered, improving, stable, declining, extinct; the number of consultations completed, biological opinions delivered, jeopardy decisions made; the number of conservation agreements. The chapters in part 1 examine the numbers and the processes that have produced them. Together, they are one report card on the first thirty years of implementing the act.

1 Introduction

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 specie...

Table of contents

• About Island Press
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Part I What Have We Protected?
• Part II Achieving On-the-Ground Conservation
• Part III Prospects
• No tes
• References
• Contributors
• Index
• ISLAND PRESS BOARD OF DIRECTORS