American Geological Institute

Government Affairs Program

Government Affairs Report: The Endangered Species Act: A Double Edged Sword (6/98)

The following column by GAP Senior Advisor John Dragonetti is reprinted from the June 1998 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.

The battle to protect endangered species while minimizing the impact on private property continues to rage. Given the level of hostility among the several sets of combatants -- including affected landowners; property rights champions; conservationists; environmentalists; mining, timber, and grazing industries; federal agents; and Congress -- it is interesting to note that there is essentially universal agreement that the Endangered Species Act (ESA) is in need of substantial revision.

In an effort to blunt criticism, Interior Secretary Bruce Babbitt recently announced that 29 species would be removed from the list of endangered and threatened species in the next two years. By contrast, only a handful have been delisted in the quarter century since the ESA was enacted. The ESA defines "endangered" as on the brink of imminent extinction, and "threatened" as facing extinction in the foreseeable future.

Species extinction as a legislated federal concern is relatively recent. Prior to the 20th century, wildlife conservation was a state responsibility. The roles began to change in 1900 when Congress passed the Lacey Act prohibiting interstate commerce of state-banned wildlife products. Since most state laws only protected individual species, it was not until 1966 with passage of the Endangered Species Preservation Act (P.L.89-669) that the entire grouping of threatened species was marked for protection.

As the nation moved into the 1970's and the environmental age dawned, it was recognized that many plant and animal species faced extinction. Congress reacted to the predicament in 1973 with passage of the Endangered Species Act (P.L.93-205). The ESA placed the responsibility for protection of terrestrial species with the Department of the Interior's Fish and Wildlife Service, and for marine species with the National Oceanic and Atmospheric Administration's (NOAA) National Marine Fisheries Service in the Department of Commerce. The law empowered these federal agencies to unilaterally designate a plant or animal as being in danger of extinction and further to assure that land development did not imperil endangered or threatened species or harm critical habitats. Once designated, it became a federal offense to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect species listed as threatened or endangered. It also became a crime to possess, sell, import or export any listed species as well as any product made from or part of such a species.

Perhaps the case most famous (or infamous, dependent upon one's evaluation system) was the snail darter discovery that halted construction on the multi-million dollar Tellico Dam and Reservoir on the Little Tennessee River. This diminutive three-inch member of the perch family was reportedly unknown to the world until it was uncovered after dam construction had begun. The court decided in TVA v. Hill that construction of the Tellico Dam threatened the snail darter's habitat. In 1978, the lower court decision made its way to the Supreme Court where the finding was upheld by the justices who ruled that Congress intended to arrest species extinction irrespective of the costs. Later, Congress amended the ESA to require the Interior Secretary to weigh the economic consequences of protecting habitats and also enacted legislation to allow completion of the Tellico Dam.

Reauthorization Bills in Congress

Congress has been attempting to reauthorize the ESA since 1992. Many believe the most balanced attempt to date to rewrite the act is S. 1180, introduced by Senator Dirk Kempthorne (R-Idaho). The bill, entitled the "Endangered Species Recovery Act of 1997," is the result of many months of negotiations and the joint effort of members of the Senate Environment and Public Works Committee including Chairman John Chafee (R-Rhode Island), ranking Democrat Max Baucus (Montana), Fisheries and Wildlife Subcommittee Chair Kempthorne, and subcommittee ranking Democrat Harry Reid (Nevada). Negotiations also heavily involved federal, state, and local government representatives and other stakeholders. The bill has passed the Environment and Public Works Committee and is awaiting consideration by the full Senate.

Senator Kempthorne contends his proposal would correct the Act's most critical weaknesses. These are: the existing Act does not require scientific data to support federal decisions, the Act has not resulted in the recovery of any endangered species, and the mandated consultation process has proven to be too cumbersome and costly. The principal modifications to the existing Act contained in S. 1180 include:

Despite bipartisan support that includes the Clinton Administration, most environmental groups favor H.R. 2351, introduced by George Miller (D-California), the ranking Democrat on the House Resources Committee. The Miller bill, which has 102 cosponsors, differs from S. 1180 in several important respects:

Although there is overwhelming public support for the protection of endangered species, federal designations of critical habitats have often generated significant objections. Opponents of such habitat classifications claim that the Fish and Wildlife Service has identified critical habitats where no endangered species have ever been seen or been known to exist. Property rights advocates point out that 70 per cent of the species judged endangered inhabit private property. They argue that the takings clause in the fifth amendment to the U.S. Constitution - "nor shall private property be taken for public use without just compensation" -- requires the federal government to compensate landowners when an action diminishes the value of private property or places unreasonable limitations on its use. Private property advocates maintain that such damages are unconstitutional takings and should be decided without the need for extensive and expensive litigation. This issue of whether private citizens are entitled to payment for partial takings has been at the center of a broader debate in Congress over the rights of property owners.

Washington Briefing Addresses Issue

The nature and scope of the endangered species debate was explored in late March when Women in Government Relations and Women in Mining cosponsored an ESA briefing at the Rayburn House Office Building in Washington, D.C. A panel consisting of representatives from Senator Kempthorne's office, NOAA, the Environmental Defense Fund, the U.S. Public Interest Research Group (PIRG), and the Defenders of Property Rights presented opinions regarding S. 1180 and the general problems associated with endangered species protection.

Senator Kempthorne's staffer affirmed the indisputable need for ESA reform and characterized S. 1180 as a pro-species, non-bureaucratic endeavor to treat landowners fairly while protecting endangered species. The NOAA representative reported the federal government's support for S. 1180, describing the existing ESA as a weak tool requiring federal agencies to create regulations to accomplish their mandated tasks. The representative from U.S. PIRG opposed S. 1180 for a host of reasons, favoring what they consider the more environmentally sensitive Miller bill. Although the Environmental Defense Fund spokesman credited S. 1180 for moving in the right direction, several weaknesses in the proposal were identified in the recovery plan process. The Defenders of Property Rights representative stated that their primary concern was for land owners who have been unconstitutionally deprived of the use or sale of their property simply on the suspicion that endangered species might be affected. The Defenders group feels that the focus of S. 1180 is misplaced on habitat protection, rather than the more fitting concept of species recovery.

In this recent airing of the difficulties in reaching agreement on how endangered species and their habitats can be most effectively preserved, there were two points of consensus. First, the ESA is badly in need of revision; and the second, Congress has too many pressing issues and too little time in its 105th session to act upon reauthorization of the Act. Yet the issue is obviously a key concern of several stakeholders including the mining industry, and is a prominent environmental priority of the executive and legislative branches. Consequently it is destined to be with us into the foreseeable future.

The Government Affairs Column is a bimonthly feature written by John Dragonetti. John Dragonetti is the Senior Advisor the American Geological Institute's Government Affairs Program.

This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by John Dragonetti, AGI Government Affairs.

Posted August 10, 1998

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