The History of the Endangered Species Act

Inspired by the plight of the whooping crane, Congress passes the Endangered Species Preservation Act. The law authorizes the Secretary of the Interior to make a list of endangered domestic fish and wildlife and allows the Fish & Wildlife Service to spend up to $15 million per year to buy habitat for listed species. It also directs federal land agencies to preserve endangered species habitat on their lands "insofar as is practicable and consistent with their primary purpose." Other agencies were encouraged, but not required, to protect species.

The Fish & Wildlife Service buys its first endangered species habitat: 2,300 acres in Florida for the National Key deer.

Pressured by the growing movement to save the whales, Congress writes a new Endangered Species Conservation Act. The revised law allows the Secretary of the Interior to list foreign species and prohibits imports of products made from such species.

The Pentagon, which uses sperm-whale oil in submarines, protests the listing of sperm whales as endangered, arguing that the species was not in any immediate danger of extinction. The Secretary of the Interior lists it anyway, but the fight convinces Interior officials that a new, stronger law is needed.

With the support of the Nixon administration, Congress almost unanimously passes a completely rewritten Endangered Species Act. The new law distinguishes threatened from endangered species, allows listing of a species that is in danger in just part of its range, allows listing of plants and invertebrates, authorizes unlimited funds for species protection, and makes it illegal to kill, harm, or otherwise "take" a listed species. In effect, the law makes endangered species protection the highest priority of government.

The Supreme Court rules that the Endangered Species Act requires that construction of Tellico Dam be halted. The arguments that $78 million had already been spent on the dam or that the endangered snail darter was only a tiny fish do not impress the court. The "plain intent" of the law, say six of the nine members, is to save all species "whatever the cost."

Congress responds to the court ruling by creating the "god squad": a committee that could exempt selected species from protection.

The first meeting of the god squad decides, with the Supreme Court, that the snail darter should take precedence over Tellico Dam.

The Tennessee congressional delegation responds by slipping a rider into an appropriations bill exempting Tellico Dam from the Endangered Species Act. The rider narrowly passes. The Tennessee Valley Authority completes the dam, presumably extirpating the snail darter.

More snail darters are found and the species turns out not to be in such danger after all.

The Fish & Wildlife Service proposes to list a plant known as the San Diego mesa mint. One of the three known populations of this plant is in a planned subdivision that would be partly built with a Veterans Administration loan guarantee.

The Veterans Administration informs the developer that, if the mint is listed, it would not be able to make the loan guarantee. A few days before the plant is protected, the developer bulldozes the plants. The loan guarantee goes through.

Recognizing that the law created an unintentional incentive for private property owners to harm rare species, Congress amends the act to allow landowners to write habitat-conservation plans for listed species. When approved by the Fish & Wildlife Service, such plans would allow property owners to "take" endangered animals provided the species was protected elsewhere.

The Fish & Wildlife Service lists the spotted owl as a threatened species. Over the next three years, the Endangered Species Act is, somewhat inaccurately, credited (or blamed) for a precipitous decline in national forest timber sales. Environmentalists respond by deluging the Department of the Interior with petitions for more species listings.

In response to continuing criticism that the law gives landowners incentives to harm wildlife habitat, the Clinton administration approves several new policies. One exempts small landowners from prosecution for harming threatened species habitat on residential properties or properties of five acres or less. A second exempts landowners whose conservation work attracts listed species to their property from prosecution should future activities harm or drive away those animals. Another policy guarantees that participants in a habitat conservation plan will suffer no further restrictions without compensation, even if the species continues to decline.

In the "Sweet Home [Oregon] decision," the Supreme Court affirms, by a six-to-three vote, that alteration of a listed species' habitat is considered a "taking" of that species and can be regulated by the Fish & Wildlife Service. The court does not rule on whether such regulation requires compensation.

Congress places a moratorium on further listings of species. This effectively denies whatever protection the act provides, including funding for habitat improvement, to many species that meet the legal definitions of "threatened" or "endangered" species.

The Fish & Wildlife Service says that, in addition to 952 listed species, 139 are proposed for listing, 179 are candidates likely to need listing, and nearly 4,000 more are "species of concern": species that need monitoring but about which too little information is known to decide whether listing is needed.
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