On 25th Anniversary, Endangered Species Act Elicits Admiration, Ire

It’s been called the noblest and most powerful of environmental laws, and also the most despised and feared.

When the Endangered Species Act became law 25 years ago, few lawmakers imagined the controversy it would unleash: fights pitting the protection of plants and animals against the rights of humans to own and manage their land, perform their jobs and meet the needs of a growing population.

“It’s the most visionary environmental law that has ever been passed,” says Interior Secretary Bruce Babbitt.

Yet even as they celebrate the law, Babbitt and many environmentalists agree new ways must be found to address the natural conflict between landowners and species.

Passed by Congress with hardly any opposition--92-0 in the Senate and 355-4 by the House--the law protecting imperiled species was signed by President Nixon on Dec. 28, 1973.

Strangely, it received only scant attention at a time when the country grappled with an oil embargo, long gasoline lines and a president threatened with impeachment.

It seemed only right then to protect an array of dwindling birds and animals: the majestic bald eagle, the powerful grizzly, the picturesque whooping crane, the condor with 10-foot wingspan and the feared alligator.

Few realized it also would protect the snail darter, kangaroo rat, Delhi fly, black-spored quillwort and much-maligned furbish lousewort (a flowering plant in Maine).

When Nixon signed the bill, there were 109 species believed to need protection. Today there are 1,177 species under the law’s umbrella, six of every 10 of them plants.

But while the number of protected species has grown dramatically, only a handful have recovered or are even moving toward recovery. Only 27 species have been removed from the list, and of those, 16 disappeared or had been listed by mistake.

These numbers have been used by critics as evidence of the law’s failure.

“This law is being judged by its intentions and not by its results,” argues Rob Gordon, founder of the National Wilderness Institute, which advocates property rights.

But most environmentalists maintain the recovery figures are no accurate barometer, either. The law, they say, has prevented the disappearance of hundreds of species and changed public attitudes.

“It’s been the catalyst for a profound change in how we view and treat the land,” says Mark Van Putten, president of the National Wildlife Federation.

Rodger Schlickeisen, president of Defenders of Wildlife and a Senate staffer when the law was passed, marvels at its vision. It demanded that species be protected on the basis of science, not politics, and sought to protect from ecological harm “future generations that don’t vote today.”

In its history, the law has on more than a few occasions raised the blood of those in its line of sight.

“It’s done violence to property rights,” says Rep. Helen Chenoweth (R-Idaho), who considers the law unconstitutional even though it’s passed Supreme Court muster a number of times.

Rep. Richard Pombo (R-Calif.), who headed a legislative task force that urged a top-to-bottom overhaul, sees its reach as “de facto federal control of private property.”

It was only a few years after its virtually unanimous endorsement by Congress that the first sign of strife emerged--in the fight over a Tennessee dam and the snail darter.

The Tennessee Valley Authority was building a dam on the Tellico River in 1977 when the project suddenly was blocked by an endangered species--the snail darter--found in the river. Congress overrode the law, and eventually the dam was finished.

But no longer was anyone under the delusion that the law was meant to protect only grizzlies and whooping cranes.

“It was not the best poster child for the Endangered Species Act,” says conservationist Van Putten. The confrontation “gave an image of an inflexible act.”

In 1982, Congress put flexibility into the law. It allowed landowners or developers to get a permit for “incidental” killing of species or their habitat on a case-by-case basis.

Nevertheless, over the years the law began to symbolize to some the worst of big government.

In the Northwest the battle was over the spotted owl, an endangered species. Logging was halted across vast stretches of forest, and critics blamed the law for loss of loggers’ jobs. Environmentalists argue the restrictions helped protect valuable old-growth forests, which include the Pacific yew, whose bark is valuable in treating certain cancers.

And when scores of homes were destroyed by wildfires in southern California, critics said the homes were lost because of the kangaroo rat, which the law protects.

Homeowners, the word was, were prevented from cutting down brush near their homes, feeding the fires. Investigators later said the fires, driven by 80 mph winds, were so intense they would have destroyed homes even if brush had been removed.

Today, along the New Mexico-Arizona border, attempts to reintroduce the endangered Mexican gray wolf have been stymied by what investigators believe is systematic killing. So far five of the first 11 freed wolves have been shot, and another disappeared.

And atop Vail Mountain in Colorado, arsonists set fire to three buildings and ski lifts this fall to protest the loss of habitat for the lynx, a small bobcat being considered for protection. Although mainstream environmental groups denounced the fire, a small band of militants claimed responsibility.

Though not as incendiary, other confrontations dot the landscape:

* In Pennsylvania, concern over the endangered Myotis sodalis, known as the Indiana bat, is blocking a $500-million extension of an interstate highway.

* Monterey, Calif., has yet to learn whether it must pay a developer $1.4 million because it moved to protect plants that are home to the endangered Smith Blue butterfly.

* People around Lubbock in west Texas wonder if the black-tailed prairie dog may soon be added to the endangered list. The rodent seems plentiful in Lubbock, but environmentalists say it is heading toward extinction.

Since 1993, Babbitt has sought ways to negotiate with landowners in contractual agreements that would allow development of land, but still provide species protection.

“Without positive incentives, the act’s goals are unlikely to be achieved,” says Michael Bean of the Environmental Defense Fund.

Bean believes fear of the law has prompted landowners to quietly destroy imperiled species or their habitat when found or--at the very least--do little to promote protection.

Babbitt’s “habitat conservation plans” allow landowners to harm some species and habitat while they use the land. In turn, the landowner agrees to set aside land and develop plans to protect certain species.

Currently there are 243 such agreements, covering 6.2 million acres in 16 states.

To spur such plans, Babbitt has offered landowners a promise of “no surprises” for the contract’s life, meaning no new requirements to protect additional species in the future.

Many environmentalists criticize such assurance because of the uncertainties that might develop years from now.

But Babbitt argues the plans are a way to avoid train wrecks. “There is flexibility and strength in the law, and it can be made to work,” he insists.