Interdisciplinary Minor in Global Sustainability
Senior Seminar
University of California, Irvine June 1997 


The Endangered Species Act: To Be or to Be Reformed

By: Steven Bekedam

Dr. Bowler (Bio 191B) Issue Paper 2/2/97

Introduction:

Long-term survival of a species depends on its ability to adapt to changing environmental conditions (Murphy, 1994). Genetic diversity within a species, which has taken 3.5 billion years to evolve, makes adaptations to these changing environments possible. Unfortunately, the rate of extinction of genetically diverse organisms is rapidly increasing, thus reducing this needed biodiversity, largely due to the human impacts of development and expansion. What was an average of one extinction per year before is now one extinction per hour and extinct species numbers are expected to reach approximately one million by the year 2000 (WWW site, Bio 65). As a result governmental and societal action must be taken immediately!

Endangered Species Act History:

The date was December 28, 1973 and the U.S. Congress proudly submits and successfully passed one of its largest pieces of environmental legislation ever: the Endangered Species Act. This act was signed by Richard Nixon into law and passed with a staggering 355 to 4 vote. The law was hailed by proud legislators as the right action, and, if anything, long overdue (Dwyer, Ehrlich, & Murphy, 1995). This act prohibits many activities involving endangered species. These prohibitions include: importation into and exportation from the U.S.; taking of species within the U.S. and its territorial seas, this includes all land areas public and private; selling, possessing, carrying, shipping, or delivering any such species unlawfully taken within the U.S., and selling or offering for sale of species in interstate or foreign commerce (WWW site, ESA). Taking includes harassing, harming, pursuing, hunting, shooting, wounding, trapping, killing, capturing, or collecting any of the listed species. The only exceptions to these prohibitions are those incidents of scientific, propagative, or economic hardship involving these endangered or threatened species. The penalties involved in violation of these laws include fines up to 100,000 dollars and one year in prison. Organizational violations include 200,000 dollar fines and confiscation of all equipment used (WWW site, ESA). Since its induction, the Endangered Species Act (ESA) has entered 967 species on its list and has 421 more labeled as possible candidates and 4,000 others as (species of concern (WWW site, What is..). Over the years, only 22 species have been removed with a third of them becoming extinct regardless, a third recovering fully, and a third put on mistakably (WWW site, What is..). In terms of the taking aspect of the law is where the controversy begins. The Takings Clause of the fifth amendment states, nor shall private property be taken for public use, without just compensation (Pendley, 1995). This means that any endangered species on an owner's private land must be compensated for. Regrettably, the ESA of 1973 fell short of its high expectations and has completely failed up to this point from a multitude of discovered flaws in the authorization of the law from the start.

Problems with the ESA of 1973:

The problems which have arisen since 1973 seem to be endless. First of all, the time needed to put an endangered species on the list is much too long. By the time most species get on the list, they are on the brink of extinction. Second, private land owners have no real incentive, the right thing to do isn't enough, to prevent endangered species extinction. Private land owners have deliberately eliminated species and/or habitat for these species from their property before they are listed so as to avoid any legal conflict (WWW site, EDF). Third, funding for the improvement of the endangered hot spots is slow to be appropriated. Congress has been sluggish in coming up with the funds for general recovery programs. Another problem has been with the Fish and Wildlife Service and its regulation. The Fish and Wildlife service has had poor record on considering cumulative effects and future planned impacts on species and habitat (O'Connell, March 1992). Finally, the most important problem with the ESA of 1973 is the numerous nicks and cuts it has received from the past 20 years of added legislation to weaken its power.

20 Years of Legislation:

Throughout the 1970ís, the ESA was successful and went on virtually unchallenged. Although some of the imposed legislation actually improved the ESA, they were minute in comparison. To begin, tensions rose and in 1982 Ronald Reagan signed the first of many Endangered Species Act Amendments. This legislation resulted in the following: it prohibited economic considerations in the listing process, established time tables to ensure that petitions for listing were dealt with quickly, adopted procedures for shortening the consultation process, and specified that good faith actions taken by a private entity to minimize takings may be exempted from the prohibition against incidental takings (WWW site, Legis. Hist.). A later legislation improved the ESA's implementation in 1988. These public law amendments: appropriated funds, improved monitoring of candidate and de-listed species, increased maximum penalties, improved procedures for the development and implementation of recovery plans, and gave the Fish and Wildlife Service authority to monitor importation and exportation of protected plants (WWW site, Legis. Hist.). Although these laws improved the ESA, only four years passed with these improvements and, in September of 1992, the ESA expired leaving only annual appropriations for the Departments of Commerce and the Interior to implement it. In 1995, various small bills were passed postponing any additional listings of endangered species and/or habitats relating to them until reauthorization of the ESA is implemented. Of these smaller bills, a moratorium (Hutchinson) was imposed by Bill Clinton in April of 1995 so no new species are added. Then, came the budget cuts of 1995 in July and August and the moratorium was extended until September of 1996, or until reauthorization occurs (WWW site, Legis. Hist.). The next month, September of 1995, the infamous Endangered Species Act Reauthorization Bill was introduced by Congressmen Young and Pombo and quickly approved by the House Resources Committee in October. Other smaller reauthorization bills were introduced in the upcoming months and in April of 1996, Clinton lifts the moratorium saying that it would cause egregious environmental damage (WWW site, Legis. Hist.). Reauthorization of the ESA has stricken much heated controversy within the scientific and political communities with very different views on the subject.

Those in favor of the ESA Reauthorization Bill and others

The political and private land owning communities have taken a large stand towards the approval of the ESA Reauthorization Bill, and all of those pertaining to it. The bill states that:

-private property will be protected (compensation for lost use of property will be provided for devalue of 20% or more), and landowner consent prior to the declaration of property as critical habitat will be required.

-incentives will be created to improve species conservation by authorizing habitat reserve grants, establishing a general permits program, and provides for a technical assistance program to aid private conservation efforts.

-it will restore the original balance of the ESA by removing the supremacy of the ESA over other laws and recognizing that conservation efforts must be balanced with economic stability and the protection of private property.

-listing standards will be strengthened by setting better information standards, eliminating artificial deadlines, requiring peer reviews, and increasing public participation.

-it will reform ESA Conservation Programs by reinstituting the distinction between threatened and endangered species and increase participation in conservation planning by State and local governments (WWW site, H.R. 2275).

This bill and others have a 100% approval rate by all of those in the political realm and are valued to be important pieces of legislation in the 105th Congress coming in the very near future.

Those opposed to the ESA Reauthorization Bill and others:

Those that are opposed to the bill are mainly those in the scientific communities which feel that endangered species should be of more importance. They feel that yes, reauthorization is necessary, but in a more species first fashion. These skeptics of the ESA Reauthorization Bill state that the bill would gut the protection of species and cost the taxpayers millions (WWW site, ESA Reauth.). It would replace recovery goals with a conservation objective that could be as minimalist as affording endangered species no protection other than against intentional killing (WWW site, ESA Reauth.). They also inform that the bill redefines the take of species so as to protect only against those activities that directly kill or injure wildlife (WWW site, ESA Reauth.). This would mean that habitat destruction wouldn't be recovered. Also, and most importantly to the public at large, the new bill would require taxpayers to pay half the cost of ESA compliance, meaning that the taxpayers pay for 50% of any actual implemented mitigated area for lost habitat. Finally, they state that the bill would eliminate the Fish and Wildlife Service's authority of consultation by federal agencies (WWW site, Eroding..). They insist on a more streamline proposal with a mere few changes to the already existing act, with more of an emphasis on habitat preservation, not just species within them. These changes would be:

-providing important protection to declining species before they have reached the point where they need to be listed.

-providing financial incentives that reward private landowners for actions that benefit species so that they may volunteer to help the ESA's effectiveness by doing more than what the law requires.

-speeding up the progress in implementing recovery plans for listed species.

-and providing mechanisms for developing plans to protect natural communities, habitat types, and ecosystems upon which many species depend.

Conclusion:

To conclude, the 105th Congress must include these topics when considering the reauthorization of the ESA: citizen participation, fairness to property owners, equal access to the courts, cost effective recovery plans, good science, and shared burdens (WWW site, Principles..). It is obvious that the concept of private property landowners is the most important aspect for discussion. They must receive valid incentive for their actions taken for the proliferation of endangered species on their lands. This seems to be the common ground between the opposing communities and their proposed legislation. Overall, we must think of the biological diversity itself and put that as a top priority. The species themselves should have the highest precedence. We must realize that the proliferation of these species, and even those that are not close to extinction, is for the betterment and growth of our well being. The protection of these species isn't just for the preservation of their biological diversity but for ours as well. A strong ESA will preserve these various resources on which our children and their grandchildren depend and therefore must be reauthorized in the near future.

Literature Cited:

Books:

Pendley, William Perry. War on the West - Government Tyranny on America’s Great Frontier. 1995. Regnery Publishing, Inc. pgs.169- 170.

Journals:

Murphy, Dennis. On Reauthorization of the Endangered Species Act. March 1994. Conservation Biology. V8.N1:1-3.

O’Connell, Michael. Response to: "Six Biological Reasons Why the Endangered Species Act Doesn’t Work and What to Do About It." March 1992. Conservation Biology. V6.N1:140-143.

Netscape Web Sites:

Biology 65: Biological Conservation (lecture 1-Introduction):

http://mamba.bio.uci.edu/~pjbryant/bio65/lec01/b65/lec01.htm

EDF Letter: Moratorium Ends, but Wildlife Needs a Better Law:

http://www.edf.org/pubs/EDF-Letter/1996/Jul/l_mbean.html

Endangered Species Act:

http://ash.lab.r1.fws.gov/cargo/es.html

Endangered Species Act Reauthorization:

http://www.nj.com/life/audubon/conalert/opinions/95aut.html

Eroding Animal Protection:

http://envirolink.org/arrs/paws/win96/b_nwsero.htm

Literature Cited-(continued):

H.R. 2275--Young/Pombo Amendment in the Nature of a Substitute:

http://www.neserc.org/2275des.htm

Legislative History of the Endangered Species Act:

http://www.nesarc.org/endang.htm

Principles for ESA Reform in the 105th Congress:

http://www.nesarc.org/princip.htm

What is the Endangered Species Act?:

http://www.nesarc.org/act.htm

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