Rocky Barker: The Endangered Species Act survives, but not all species will

Idaho StatesmanDecember 30, 2013 

Male sage grouse drum on their mating grounds in southeast Oregon in 2007.

IDAHO STATESMAN FILE

CORRECTION: Jim McClure was in the Senate, not the House, at the time the Endangered Species Act passed.

Aldo Leopold’s seed of wisdom grew into the law that has become the foundation of ecosystem protection for 40 years.

President Richard Nixon signed the Endangered Species Act into law Dec. 28, 1973. It put into U.S. statutes what Leopold’s classic 1940s essay, “Round River,” called for — saving all the parts of the natural world.

“To keep every cog and wheel is the first precaution of intelligent tinkering,” Leopold wrote.

The law remains widely supported today, protecting more than 2,100 plants and animals in the U.S. and around the world. It has brought back from the brink of extinction the likes of the bald eagle and the peregrine falcon, due to its restrictions and its support of private conservation efforts by groups like Boise’s Peregrine Fund.

But its limitations on development and private property rights have made it a target for many who wonder whether biodiversity deserves the priority that the law gives it.

Today, nearly every side acknowledges that Leopold’s lofty goal is no longer possible, if it ever was. Rapid climate change, caused by greenhouse gases in the atmosphere from the burning of fossil fuels, is expected to send 20 to 40 percent of all of Earth’s species into extinction in the next century.

The last time the law was reauthorized was in 1982. Congress has been unable to find common ground on how to reform or update the law that has become one of the most polarizing in the nation. That has meant changes are made piecemeal, through court decisions, settlements and rule changes often written in the middle of dramatic economic conflicts. Here in Idaho, for instance, Congress voted to delist the wolf in 2011 after a bitter court battle.

The legal fight over how to protect 12 stocks of salmon and steelhead in the Pacific Northwest has gone on for more than 20 years, with some improvement for the wild stocks, but no recovery. Idaho and nine other Western states are struggling with the Bureau of Land Management to come up with plans that will keep sage grouse off the endangered species list by the 2015 deadline set by U.S. District Judge B. Lynn Winmill of Boise.

Congress passed the law four decades ago by a wide majority. Idaho conservative Republican Sen. Jim McClure told me years later he never would have voted for the Endangered Species Act had he known how it would be used.

Lawmakers in 1973 created the clearest, most unequivocal environmental law ever written. In other laws, federal agencies are required to provide protection “where practicable.” It was those two words that had prevented the Endangered Species Act of 1966 from stopping the decline of eagles, whales and whooping cranes.

Four men made sure “where practicable” was purged from the final version of the 1973 law. They were Interior Undersecretary E.U. Curtis “Buff” Bohlen; House Merchant Marine and Fisheries Committee counsel Frank M. Potter Jr.; Lee M. Talbot, a senior scientist at the Council on Environmental Quality; and Earl Basinger, a U.S. Fish and Wildlife Service biologist.

Their work made protecting endangered species the highest legal priority of government. The law handed the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (now NOAA Fisheries) ultimate veto power over all other federal agencies and other activities funded or regulated by the federal government.

“It was only some time after its passage that people realized its implications," Bohlen is quoted saying in “Noah's Choice,” by Charles Mann and Mark Plummer. “We certainly didn’t advertise it. Why should we have? It was not our intent to ring alarm bells.”

But the four were not trying to mislead anyone, Talbot told me in 1995.

“It wasn’t a matter of skulking around in the back hall putting in words that nobody read, but rather to openly strengthen it to the maximum,” Talbot said.

The one minor exception was initiated in 1976, after the Supreme Court ruled that Tellico Dam on the Tennessee River had to be halted to protect the snail darter, a small fish. Congress established an exemption process, under which species protection could be waived by the Endangered Species Committee, frequently called the “God Squad.”

The God Squad has not chosen to act, when faced with making Noah’s choice. But the reality of climate change means society is going to be forced to make those choices, either by default or on purpose.

Rocky Barker: 377-6484

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