The Endangered Species Act continues to thrive in courtrooms. But lawmakers on Capitol Hill have targeted it for extinction.
In a highly anticipated ruling June
30, the U.S. Supreme Court rejected arguments by the timber
industry that the 1973 law mostly exempted private lands. By a 6-3
count, the justices overturned a lower court ruling in the case,
Babbitt vs. the Sweethome Chapter of Communities for a Better
Oregon, which had held that the law could not require private
landowners to protect the habitat of the northern spotted
Plaintiffs argued that the law only banned
actions that directly killed or injured the bird, but only three
justices agreed: Chief Justice William Rehnquist, Antonin Scalia
and Clarence Thomas.
"The court recognized what
every fourth-grader knows," says Nick Boutis, a spokesman for the
300-member Endangered Species Coalition. "You can't protect the
species if you don't protect the habitat."
Environmentalists also cheered a second ruling
in June, by the 9th Circuit Court of Appeals, regarding the
endangered Bruneau Hot Springs snail. It lives only in thermal
springs along a five-mile stretch of the Bruneau River in southwest
Idaho, which farmers tap to irrigate crops.
December of 1993, the Idaho Farm Bureau and Idaho Cattlemen's
Association convinced a federal judge that the snail could be
removed from the list of endangered species because the U.S. Fish
and Wildife Service had illegally delayed its listing. Two Idaho
conservation groups appealed the decision, and on June 30 a
three-member panel of judges unanimously overturned it and
reinstated the mollusk on the list.
members of Congress seized on the court decisions as more evidence
that the current Endangered Species Act hurts private landholders
and must be overhauled.
"The federal government
has been running roughshod over property rights, and the courts
have made it clear that only Congress can fix the problem," said
Sen. Phil Gramm of Texas, a candidate for the Republican
No champion of reform
looms bigger than Sen. Slade Gorton, Republican from Washington
state. Earlier this year Gorton introduced a bill that would change
the ESA's definition of harm, prohibiting only those actions which
result in the direct death or injury of a species. His bill, S.
768, would also allow the Interior secretary to set recovery goals
for endangered species, regardless of the scientific
"It creates an unchallengeable,
one-person God Squad," says David Wilcove, a biologist with the
Environmental Defense Fund. "The first James Watt that gets in can
destroy the habitat."
Wilcove says he is
dismayed that Gorton's bill, which has attracted just a dozen
sponsors, would allow the U.S. Fish and Wildlife Service to delay
listings and allow other federal agencies such as the Forest
Service to avoid consultation with federal biologists. Although he
has been criticized by public interest groups for allowing industry
to write the bill, Gorton says S. 768 is a reasonable reform that
puts a human face on the law.
"It's hard to imagine a more extreme bill. The Gorton bill takes
the act, rips it with a sharp knife from throat to belly, pulls out
the innards and leaves a shell."
Species Act is also attacked on other fronts in Congress. The House
of Representatives is working on an Interior Department
appropriations bill that would extend a moratorium on all
endangered species listings until September 1996. Critics in
Washington say this is a less-than-subtle way of pressuring key
members of Congress to rush ahead with a reform bill.
But the fast-acting House has fallen well behind
its own time frame for reauthorizing and revamping the act. Despite
promising a House floor vote on legislation this summer, Resource
Committee Chairman Don Young, R-Alaska, has yet to produce a bill.
That could push the debate into 1996, and may signal that the
Republicans do not yet have a unified approach to the issue.
Some environmentalists welcome the delay. Says
Wilcove, "Anything that could provide for more public discourse is
Pam Eaton, an endangered species
specialist for the Wilderness Society in Denver, says
environmentalists will use any extra time to convince members of
Congress that the law needs fine-tuning, rather than a complete
"We don't need reauthorization (as a
method) to create incentives for private landholders to protect
endangered species," she says. "What we need is money."
Paul Larmer is
associate editor of High Country