ENVIRONMENT : Use of U.S. Wildlife Safety Net Abroad Faces High Court Test

In 1981, Amy Skilbred visited the Mahaweli River Valley in Sri Lanka, hoping to see elephants and leopards in the wild.

Five years later, Joyce Kelly went to the Nile River in Egypt, similarly intent upon getting a glimpse of its famous crocodiles.

Neither was successful. Skilbred’s disappointment has since been attributed to the construction of dams on the Mahaweli River, with the support of the U.S. Agency for International Development; Kelly’s to rehabilitation work on Egypt’s Aswan dam, with help from the U.S. Bureau of Reclamation.

From the two incidents, which involved members of the environmental group Defenders of Wildlife, has arisen an issue with life-and-death implications for endangered wildlife species and, potentially, for billions of dollars worth of development projects in the Third World.

The question posed in both cases is whether the United States’ Endangered Species Act applies to federal government activities overseas. The matter will be argued before the U.S. Supreme Court today, with the government seeking to overturn an appeals court opinion stating that the 1973 act does, in fact, apply worldwide.

BACKGROUND: Under the Endangered Species Act, federal agencies are obliged to consult with the Interior Department whenever their actions might jeopardize a threatened or endangered species. A jeopardy finding by the U.S. Fish and Wildlife Service can lead to a project’s cancellation. But in more than 99% of cases over the years, consultations have found ways for planned projects to continue, with provisions for protection of the endangered wildlife.

From 1973 until 1986, the act was interpreted as applying to U.S. agency activities abroad as well as at home. But then, Interior Secretary Donald P. Hodel ruled that the consultation requirement applied only within the United States and at sea, where protection of threatened marine species is under the jurisdiction of the National Marine Fisheries Service.

Contending that Hodel’s ruling put the United States in the position of exporting extinction, Defenders of Wildlife filed suit, citing the experiences of its members, Skilbred and Kelly.

The suit was rejected by a federal court in Minnesota on grounds that Skilbred and Kelly lacked the standing to challenge the directive--meaning they had shown no direct damage from the 1986 regulation, nor indicated how their situation would be remedied by having it overturned.

Last year, however, the lower court was reversed by the U.S. 8th Circuit Court of Appeals. The government then appealed to the Supreme Court, on the issue of standing.

THE ISSUE: Supported by briefs from other major wildlife conservation organizations as well as a dozen states, including California, and seven cities, including Los Angeles, the Defenders of Wildlife case contends that much more is at stake than endangered species in foreign countries.

In many instances, jurisdictions within the United States see their efforts to protect endangered creatures as being undercut by a policy that ignores the U.S. law beyond its own boundaries.

Numerous migratory species make regular journeys across international boundaries. Some species, such as the Mexican wolf, that are extinct in the wild in the United States can recover only from foreign stocks.

A friend of the court brief filed by cities and states cites the endangered golden-cheeked warbler to illustrate the dilemma to be argued before the court:

Assiduously protected in its Texas habitat in the spring and summer, the warbler migrates to Guatemala in the autumn. There it is jeopardized by heavy pesticide spraying underwritten by the U.S. Animal and Plant Health Inspection Service.

The international question has divided U.S. agencies, just as the famed spotted owl case has put the U.S. Fish and Wildlife Service at odds with the Bureau of Land Management.

In the Defenders case, the agencies charged with wildlife protection find themselves at odds with overseas development interests in the State Department, the Army Corps of Engineers and the Agency for International Development.