Congress and charismatic megafauna: a legislative history of the Endangered Species Act.

The last; word of ignorance is the man who says of an animal or plant: `What good is it?' ... If the biota, in the course of aeons, has built something we like but do not understand, then who but a fool would discard seemingly useless parts? To keep every cog and wheel is the first precaution of intelligent tinkering.(1)

--Aldo Leopold

I would be in favor of undertaking tremendous costs to preserve the bald eagle, and other major species, but that kind of effort is out of proportion to the value of the woundfin minnow, or the snail darter, or the lousewort, or the waterbug, or many others that we are attempting to protect.(2)

--Senator Jake Garn (R-Utah)

I. INTRODUCTION

Today, the Endangered Species Act of 1973 (ESA)(3) stands among the strongest of environmental laws. The U.S. Supreme Court has described it as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."(4) The ESA is also unique among environmental laws because its link to the protection of human health and quality of life is most tenuous. For this reason, historian Roderick Nash has called it "the strongest American legal expression to date of environmental ethics."(5) Secretary of the Interior Bruce Babbitt describes the ESA as "undeniably the most innovative, wide-reaching, and successful environmental law which has been enacted in the last quarter century."(6) But while the ESA may be the "crown jewel of the nation's environmental laws,"(7) it is also the "pit bull of environmental laws."(8)

The power of the ESA rests primarily in three sections: section 4, section 7, and section 9.(9) Together, these sections form the substantive foundation of the Act, and the source of most controversy over the ESA today. The ESA also includes a citizen suit provision that has served as a powerful tool for environmental groups to expand and enforce the powers in sections 4, 7, and 9.(10) Indeed, litigation has played a crucial role in expanding the scope of the Act and provoking controversy. Although many other sections of the Act provide significant protection for species, these three sections are the most important.

Section 4 instructs the Secretaries of the Interior and Commerce to list species as either threatened or endangered "solely on the basis of the best scientific and commercial data available.(11) The Secretary of the Interior, responsible for avian, terrestrial, and freshwater species, has delegated this power to the Fish and Wildlife Service (FWS), while the Secretary of Commerce, responsible for marine and anadromous species, has delegated the power to the National Marine Fisheries Service.(12) The ESA defines the term "species" to include subspecies of fish or wildlife or plants, and distinct population segments of vertebrate fish or wildlife, that interbreed when mature.(13) Endangered species are those in danger of extinction throughout all or a significant portion of their range, while threatened species are those likely to become endangered in the near future.(14) Species eligible for listing include all plants, mammals, fish, birds, amphibians, reptiles, mollusks, crustaceans, arthropods, or other invertebrates.(15) Section 4 precludes any consideration of economic factors when determining whether or not a species should be listed as threatened or endangered.(16)

Labeled "Interagency Cooperation," section 7 commands federal agencies not to take any action that might harm a listed species. Specifically, it directs all federal agencies to consult with the Secretary to ensure that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species."(17) Originally twelve lines long, this section has since expanded to several pages, beginning with a series of amendments starting in 1978.(18) The power of section 7 came not from amendments, however, but from the judiciary. In Tennessee Valley Authority v. Hill,(19) decided in 1978, the U.S. Supreme Court interpreted section 7 as an absolute bar against any federal action that might jeopardize a listed species.(20) The Court's decision in that case halted the completion of Tellico Dam on the Little Tennessee River to protect the endangered snail darter, a small fish.(21)

Section 9 prohibits the taking of endangered species.(22) The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(23) In 1975 the Secretary of the Interior promulgated a regulation interpreting "harm" to include activities that result in "significant environmental modification or degradation."(24) Under this definition, the ESA may limit land use activities on private property that might indirectly harm a listed species, making the ESA "perhaps the most powerful regulatory provision in all of environmental law."(25) The courts consistently have upheld this broad interpretation of section 9.(26)

The ESA's very strength, however, threatens its future. Some critics claim that while the ESA was "[o]nce lauded as the salvation of the bald eagle and the grizzly bear, the law often thwarts individuals and businesses from using their property in order to protect little-known birds, rodents, and insects."(27) In 1995 the newly elected conservative Congress pledged to "rethink, not repair" environmental laws.(28) Newt Gingrich (R-Ga.), Speaker of the House at that time, said that it made little sense to spend money on species protection because extinction is "the way life is."(29) That same year, Congress succeeded in placing a temporary moratorium on ESA listings.(30) Since the spotted owl controversy in the early 1990s, Congress has deadlocked over the Act, and attempts to weaken it by amendment have failed.(31) Nevertheless, the fate of the ESA remains uncertain.

This Note, however, does not analyze the current debate over the ESA or propose ways to improve the Act. Instead, it examines the Act's past, particularly its legislative history, in an attempt to demonstrate what Congress intended when it passed the Act in 1973. This Note concludes that the Act has had unanticipated consequences. Specifically, it argues that Congress did not intend to pass a law that would protect seemingly insignificant species irrespective of economic considerations, halt federal development projects, and regulate private property. Instead, most in Congress believed the Act to be a largely symbolic effort to protect charismatic megafauna representative of our national heritage, like bald eagles, bison, and grizzly bears. Congress believed it could accomplish this simply by preventing the direct killing of endangered species and by halting the international trade in such species.

But if this was the case, then how did the ESA eventually become one of the most powerful and controversial of environmental laws? There are two reasons. First, Congress and the affected economic interest groups simply lacked the foresight to anticipate how environmental groups might use the relatively plain language found in sections 4 and 7 to force the listing of obscure species without economic consideration and to halt federal development projects. Second, scientific developments after 1973, especially the popularization of ecology and the emergence of the idea of biodiversity, led scientists and environmentalists to a more expansive interpretation of what it meant to "take" a species under section 9 and to "jeopardize" a species under section 7. These developments in scientific understanding transformed section 9 from essentially a ban on hunting to a powerful provision for the regulation of land use, and justified the rigorous application of section 7 to save critical habitat. In 1973 it would have been difficult, if not impossible, for Congress to anticipate such a fundamental change in circumstances.

Despite its conclusions, this Note does not argue that the ESA should be weakened or repealed. Nor does it advocate that the courts should adhere to the original intent of the legislators who enacted the ESA. Instead, it merely attempts to provide a historical context for discussion about the future of endangered species policy. This story of unanticipated consequences, while not new, typifies much legislation, and Congress should occasionally be reminded of it. Finally, this Note will demonstrate the important role that Congress, the administration, and the courts played in shaping the modern environmental movement.

II. PROTECTING SPECIES BEFORE THE ESA

A. Saving Individual Species

Prior to the twentieth century, the federal government played a minor role in wildlife management. It limited its efforts primarily to the conservation of natural resources that lay outside of state jurisdictions. For example, in 1868 Congress passed a law prohibiting the killing of certain furbearing animals in the territory of Alaska.(32) Three years later, it created the Office of the U.S. Commissioner of Fish and Fisheries to conserve fisheries along the coasts and navigable waterways.(33) Congress also took indirect steps to secure wildlife habitat when it passed the Forest Reserve Act of 1891,(34) which authorized the President to establish national forests out of the public domain to protect timber, water, and wildlife resources from overexploitation.(35) However, the various states assumed the primary responsibility for protecting wildlife during the nineteenth century.

Whether regulation originated from the states or the federal government, the economic logic of conservation motivated early efforts to protect wildlife. Conservationists like President Theodore Roosevelt and the first Chief of the U.S. Forest Service, Gifford Pinchot, believed that natural resources needed to be managed for sustainable use so as to provide the greatest good to the greatest number of people over time.(36) Conservationists turned to practical sciences, like forestry and eventually game management, to meet their utilitarian goals.(37) In contrast, preservationists, like John Muir, founder of the Sierra Club, believed that nature should be protected for its own sake, rather than merely conserved for human use.(38) Later in the twentieth century, environmentalists awkwardly embraced the ideas of both conservationists and preservationists.(39)

Conservationist thought dominated natural resource policy throughout the late nineteenth century, but the annihilation of the bison on the Great Plains during the 1870s aroused some preservationist sentiment. To prevent extinction and preserve a remnant of frontier heritage, Congress passed a bill in 1874 to outlaw the slaughter of buffalo in the federal territories.(40) However, President Grant pocket-vetoed the bill. Two years later, the House passed a similar bill, but it died in Senate Committee.(41) In 1894, in part to protect the remaining herds of bison, Congress prohibited hunting within Yellowstone National Park.(42) Nevertheless, throughout the nineteenth century federal involvement in the conservation and preservation of wildlife remained minimal.

Instead, the states assumed the primary responsibility for wildlife management. State laws, however, were not intended to protect species per se, but usually took the form of fish and game regulations designed to guard the interests of sport hunters.(43) In 1896, the Supreme Court validated the states' power to regulate wildlife in Geer v. Connecticut.(44) In that decision, the Supreme Court held that the states have the "undoubted authority to control the taking and use of that which belonged to no one in particular but was common to all."(45) But almost as soon as the courts articulated this state ownership doctrine, it began to erode.

Early in the twentieth century, progressive conservationists began to wrest control of wildlife management from the states. The first significant direct step toward national wildlife regulation came when Congress passed the Lacey Act of 1900.(46) The inability of states alone to prevent species extinctions motivated the Act's sponsor, Representative John Lacey (R-Iowa).(47) The Lacey Act prohibited interstate commerce in animals, birds, or their products killed in violation of state law, and required the Secretary of Agriculture to take measures to ensure the preservation, introduction, and restoration of game animals and birds.(48) The Act recognized the national scope of species protection problems and marked the beginning of federal involvement in species preservation.

Three years after its passage, President Theodore Roosevelt created the first national refuge explicitly for the protection of wildlife on Florida's Pelican Island.(49) Roosevelt also extended federal involvement in wildlife management indirectly by greatly expanding the U.S. forest reserves.(50) The federal government thus extended protection to species both directly and indirectly.

In 1914, the last passenger pigeon, a species that had once covered the skies in flocks numbering in the millions, died in a zoo in Cincinnati.(51) Partly in response to this tragedy, the United States signed the Migratory Bird Treaty of 1916(52) with Canada, recognizing for the first time the international scope of the extinction crisis.(53) Two years later, Congress ratified this treaty with the Migratory Bird Treaty Act of 1918.(54) The state of Missouri, however, promptly challenged the constitutionality of the law under the Tenth Amendment, invoking the state ownership doctrine to claim exclusive state regulation of wildlife. In the landmark decision of Missouri v. Holland,(55) the Supreme Court upheld the Act based on the federal treaty making power and rejected outright the contention that the state ownership doctrine precluded federal regulation.(56) In 1929, Congress extended bird protection with the Migratory Bird Conservation Act.(57)

New Deal conservationists took more indirect--but potentially more effective--steps to slow extinctions. In 1934, Congress passed the Fish and Wildlife Coordination Act.(58) It directed the Secretary of the Interior to investigate the effects of "domestic sewage, trade wastes, and other polluting substances on wild life."(59) It also encouraged dam-building agencies to consult with the Bureau of Fisheries about the potential impact on fish before a dam would be built.(60) The voluntary nature of these two provisions doomed them to failure, but they were nonetheless significant because they recognized the connection between habitat degradation and wildlife health. The Fish and Wildlife Coordination Act also called for federal and state cooperation to conserve and rehabilitate wildlife and proposed that federal lands be set aside to protect wildlife habitat.(61) This third provision realized some success through the expansion of national forest reserves, national wildlife refuges, and the national, park system. In 1940 Congress passed the Bald Eagle Protection Act(62) to save the nation's symbol from extinction.

While Presidents and Congress made tentative steps to protect wildlife during the first half of the twentieth century, ecology emerged as an independent discipline. Aldo Leopold helped popularize this knowledge, teaching Americans to care about the land and the "wild things" that live on it.(63) About the passenger pigeon, he eulogized: "Our grandfathers were less well-housed, well-fed, well-clothed than we are. The strivings by which they bettered their lot are also those which deprived us of pigeons. Perhaps we now grieve because we are not sure, in out hearts, that we have gained by the exchange."(64) Leopold, known as the father of modern wildlife management, merged science, philosophy, and plain writing into his classic bestseller, A Sand County Almanac, published posthumously in 1949.(65)

By the 1960s, a growing awareness of environmental problems, including species extinction, fostered a national environmental movement. In 1962, Rachel Carson, a former biologist with FWS, published Silent Spring.(66) It described how the nation's growing addiction to pesticides, herbicides, and insecticides poisoned wildlife and threatened human health.(67) The image of songbirds falling dead from suburban trees provided a graphic symbol of environmental destruction with which people could identify and empathize.(68) More than any other single factor, Carson's book acted as a catalyst for the modern environmental movement.(69)

B. Toward Comprehensive Species Protection

The environmental movement raised public awareness about the modern extinction crisis, prompting the passage of comprehensive endangered species legislation. But first, in 1964, Congress created the National Wilderness Preservation System, which indirectly provided crucial habitat for endangered species.(70) That same year, the Department of Interior's Bureau of Sport Fisheries and Wildlife, later renamed the U.S. Fish and Wildlife Service, created a Committee on Rare and Endangered Species.(71) Comprised of nine biologists, it published the first federal list of species known to be threatened with extinction.(72) Called the "Redbook," the 1964 edition included sixty-three wildlife species.(73)

In 1966 Congress passed the Endangered Species Preservation Act (1966 Act),(74) the first comprehensive legislative response to the modern extinction crisis. The 1966 Act directed the Departments of Interior, Agriculture, and Defense to protect threatened species "insofar as is practicable and consistent" with the primary purposes of the services, bureaus, and agencies within their departments.(75) It also charged the Department of the Interior with the duty to consult with and "encourage" all other federal agencies to conform to the purposes of the Act "where practicable."(76) In addition, it instructed the Department of the Interior to continue compiling lists of endangered species.(77) Most important, the 1966 Act created the National Wildlife Refuge System out of a hodgepodge of federal lands, and authorized funds for the maintenance and expansion of this system.(78) Finally, the 1966 Act prohibited the "taking" of a species or its product within these wildlife refuges without a permit.(79)

But the 1966 Act suffered from several serious weaknesses. First, the 1966 Act applied only to domestic vertebrate species of fish and wildlife, and did not extend to plants, subspecies, or population segments.(80) Second, the language of the Act made agency cooperation explicitly voluntary, and thus contrasted with the present interpretation of section 7 under the ESA.(81) Most important, the restriction against the taking of a species applied only within the National Wildlife Refuges.(82) Moreover, this meager prohibition did not extend to activities that indirectly harmed a listed species. Nevertheless, the 1966 Act directed the Department of the Interior to better identify endangered species and provided funding to acquire wildlife habitat.(83)

Three years later, Congress supplemented the 1966 Act with the Endangered Species Conservation Act of 1969 (1969 Act).(84) The 1969 Act explicitly recognized the international scope of the extinction crisis, authorizing the expansion of the Redbook to include those species threatened worldwide.(85) Most importantly, it banned the importation of any product of a species listed as endangered,(86) which, for example, curtailed the market in leopard, jaguar, and ocelot fur coats that, between 1968 and 1970, accounted for 18,456 leopard skins, 31,105 jaguar skins, and 249,680 ocelot skins,(87) Furthermore, the 1969 Act extended the Lacey Act by prohibiting the selling or transporting of any listed species or its product taken illegally to include reptiles, amphibians, mollusks, and crustaceans.(88) Finally, the 1969 Act expanded the definition of "fish or wildlife" to include amphibians, reptiles, and invertebrates, and called for an international convention to protect endangered species from extinction.(89)

That convention and two other species protection acts followed in the wake of Earth Day on April 22, 1970.(90) First, in 1971 Congress passed the Wild Free-Roaming Horses and Burros Act(91) to preserve what Congress called "living symbols of the historic and pioneer spirit of the West."(92) A year later, Congress approved the Marine Mammal Protection Act,(93) which prohibited the taking or importation of endangered marine mammals.(94) In the spring of 1973, the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES)(95) established an elaborate scheme of import-export restrictions for endangered species. Significantly, both the Marine Mammal Protection Act and CITES recognized a management classification for species threatened with being endangered but not yet depleted enough to be called endangered, a system later incorporated into the ESA.(96) The inadequacy of the 1966 and 1969 Acts and a growing appreciation for the scope of the extinction crisis led many to push for more potent legislation for species protection.

Early in 1972, President Nixon called for the adoption of a stronger law to protect endangered species. Nixon claimed that "even the most recent act to protect endangered species, which dates only from 1969, simply does not provide the kind of management tools needed to act early enough to save a vanishing species."(97) In this address, Nixon also announced the promulgation of an executive order barring the use of poisons to control predators, like grizzly bears and gray wolves, on all public lands.(98) The same day of the President's address, Representative John Dingell (D-Mich.) introduced in the House endangered species legislation endorsed by the Nixon administration.(99) Ten days later, Senator Mark Hatfield (R-Or.) submitted identical legislation to the Senate.(100) Congress, however, failed to pass new species legislation in 1972.

III. THE ENDANGERED SPECIES ACT OF 1973

A. Passage of the ESA

Early in 1973, the 93rd Congress, dominated by Democrats, reconsidered four new endangered species bills. On January 3, Representative John Dingell (D-Mich.) introduced H.R. 37, co-sponsored by seventy members of the House of Representatives.(101) On June 12, Senator Harrison Williams (D-N.J.) introduced S. 1983.(102) The newly re-elected Nixon administration also supported a stronger endangered species law, and had its own bills introduced in both the House and the Senate, where they found bipartisan support.(103) Congress eventually approved the Democrat-sponsored bills, H.R. 37 and S. 1983, which differed little from the administration's proposal.(104)

Congress debated little over the various provisions of these bills. Moreover, the few congressional concerns centered not on sections 4, 7, or the application of the section 9 prohibition to habitat modification, but on issues relatively inconsequential to later developments. The most significant topic debated was the potential preemption of traditional state authority to manage wildlife. Senator Theodore Stevens (R-Alaska), for example, observed that "the bill is drawn on the basis of making the Federal law preemptive[,]" and unsuccessfully proposed an amendment to bolster state authority under the ESA.(105) The only conservation organization to oppose the ESA, the Wildlife Management Institute, did so because it believed that the Act would usurp state power.(106)

Debate over the preemption of state authority arose from section 9, although this debate had nothing to do with whether habitat modification fell within the definition of the take prohibition. Under the 1966 and 1969 Acts, the federal prohibition against taking a listed species extended only to species taken within the National Wildlife Refuge System, and, through the Lacey Act, to any taking or trade in listed species contrary to any existing state law.(107) No independent federal prohibition against killing or otherwise directly harming listed species existed outside of the National Wildlife Refuge System.(108) Section 9 of the ESA changed this, making it a federal crime to take any listed species anywhere within the United States.(109) By doing so, the ESA necessarily intruded on state prerogative.

Proponents of the ESA successfully assuaged concerns over federal preemption. Representative James Grover (R-N.Y.) observed, "we have adequately protected legitimate State interests, powers, and authorities, in H.R. 37 by providing for concurrent Federal/State jurisdiction and permitting the States to enact their own, more restrictive laws, if so desired."(110) Outside of Congress, ESA supporters tried to justify the need for federal authority because few states adequately protected endangered species. The Washington Post, for example, argued that "the ultimate authority" for species protection should rest with the federal government rather than with the states.(111) Representative Dingell stressed that the ESA would not preempt the states from enacting their own endangered species legislation.(112) Senator Williams stated simply that the act "in no way limits the power of any State to enact legislation or regulations more restrictive than the provisions of the act."(113)

These concerns, however, were minor, and congressional support for the bills soon became widespread and enthusiastic. In the Senate especially, debate over the ESA was almost nonexistent. Even Senator Stevens, who initially expressed concern over the bill's potential impact on state authority, rose to speak in support of S. 1983, stating that while "the bill is not perfect, I believe it takes a major step in the protection of American endangered and threatened species."(114) The bill's supporters also included those who would later regret their decisions, including Bob Dole (R-Kan.), Jesse Helms (R-N.C.), Howard Baker (R-Tenn.), Bob Packwood (R-Or.), and Mark Hatfield (R-Or.).(115) On July 24, 1973, the Senate approved S. 1983 unanimously, ninety-two to zero, with eight Senators not voting.(116)

House support for H.R. 37 was also strong. Representative Grover observed, "I know of no opposition to H.R. 37 and urge its immediate passage."(117) Representative Dingell remarked that in the month since the committee report on the House bill(118) had been available for review, he had "yet to hear a whisper of opposition to its passage at the earliest opportunity."(119) On September 18, 1973, the House of Representative passed H.R. 37 by a vote of 390 to 12, with 31 not voting.(120) None of the twelve who voted against the bill voiced their opposition during congressional deliberations just prior to the vote.(121)

The House and Senate bills then proceeded to the conference committee. That committee essentially adopted the Senate version of the bill, although it incorporated a few elements from the House bill. The conference report explained what it believed to be all the significant differences between the Senate and House bills, but it failed to mention at least one major difference.(122) For the purposes of the section 9 prohibition against the take of a listed species, S. 1983 defined the term "take" to include actions that might "harm" a listed species, while H.R. 37 only included actions that would directly injure or kill a listed species.(123) Despite its importance to later developments, this difference went unnoticed or, at least, it provoked no comment or debate. For the most part, however, the House and Senate bills were remarkably similar, including the parts of section 4 and section 7 relevant to subsequent controversies over the ESA. The topic most discussed during the conference concerned the relatively minor point of the division of administrative duties between the Secretaries of the Interior and Commerce.(124)

The ESA emerged from the conference committee even more popular than it had been before. On December 19, the Senate agreed to the conference report, again unanimously.(125) The next day, while the House considered the conference report Representative Dingell observed, "It would be no exaggeration to say that scarcely a voice has been heard in dissent."(126) The House agreed to the conference report by a vote of 345 to 4, with 73 representatives not voting.(127) Those four who voted against the Act included Robin Beard (R-Tenn.), Harold Gross (R-Iowa), Earl Landgrebe (R-Ind.), and Robert Price (R-Tex.).(128) None of them articulated their opposition to the report on the floor of Congress.

The bill then proceeded to the desk of the President. President Nixon supported the bill even though it was not precisely the initiative introduced by his administration. During the signing ceremony, he concluded, "Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed."(129) On December 28, 1973, President Nixon signed the ESA into law.(130)

B. Why?

The ESA received such overwhelming support for a variety of reasons. First, when Congress considered new endangered species legislation, environmentalism enjoyed a level of popularity unknown today. Indeed, the ESA arrived on the "peak of [the environmental] wave" and represented the "quintessential environmental issue."(131) The year before its passage, Tom Garrett, wildlife conservation director for Friends of the Earth, noted that environmental legislation, particularly wildlife protection, was "a richly rewarded political issue."(132) The Washington Post editorialized that there was strong public sentiment supporting increased protection for endangered species.(133)

Many politicians sought to capitalize on this popularity. Some hoped that by doing so they could unite a country divided by civil rights, women's liberation, and the Vietnam War.(134) Nixon himself declared, "The quality of life on this good land is a cause to unite all Americans."(135) Nixon, sinking ever deeper into the morass of Watergate, probably yearned for a little unity by the end of 1973, while the Republicans in Congress may have hoped to rehabilitate their party.(136) Nixon, and perhaps conservatives generally, supported the ESA not so much out of sincere commitment to species preservation, but for self-serving reasons.(137) To many politicians, the ESA seemed to be a win-win situation.

The mutually beneficial nature of the proposed law seemed especially true because no significant special interest group came forward to oppose the ESA. During the Senate hearings in June of 1973, numerous administrative agency experts and every major environmental organization testified in support of the ESA.(138) Even the National Rifle Association urged the passage of a stronger act.(139) The only opposition came from a few groups representing state fish and game agencies, which worried about the preemption of state authority, and from the fur industry.(140) Lack of significant special interest opposition was also evident during the House hearings.(141) With "little open opposition to the bills," there appeared to be no reason, "except congressional inertia, for inaction."(142)

Few at the time opposed the ESA because no one anticipated how the Act might significantly interfere with economic development or personal property interests,(143) One leading advocate of the ESA observed, "since someone does not necessarily have to combat vested economic interests, some politicians use the issue to parade themselves as environmentalists knowing they will not seriously offend corporate interests."(144) The timber industry, other natural resource industries, and private property groups declined to fight the ESA in 1973 because they failed to see how the law might affect their interests. In addition, unlike today, no organized anti-environmental coalition existed to probe and protest proposed environmental legislation.

Members of Congress also failed to anticipate many of the Act's consequences. In particular, they overlooked or underestimated the potential powers of sections 4, 7, and 9, referring instead to relatively minor provisions of the Act. Representative Dingell listed the nine "principal" changes that would be effected by the bill's passage.(145) None of these, however, predicted that section 4 would cause a wide diversity of species to be listed without regard to economic considerations, that section 7 would halt federal projects that might jeopardize species, or that section 9 might result in the regulation of land use on private property.(146) For Representative Dingell, at least, significant aspects of the ESA included its distinction between threatened and endangered species and its ban on the export of listed species.(147)

Others believed that section 6,(148) which provides for federal cooperation with the states, was the most significant provision of the Act. Senator John Tunney (D-Cal.), the Senate manager of the bill, called section 6 "perhaps the most important section" of the ESA.(149) Senator Stevens (R-Alaska) called section 6 "the major backbone" of the ESA.(150) The Senate Report stated that the purpose of the Act was to promote cooperative management between the states and the federal government.(151) Of course, it is difficult to ascertain whether the legislators actually believed this or if they were just trying to assuage the concerns over federal preemption. Nevertheless, Congress either found the inherent powers of sections 4, 7, and 9 unworthy of debate or it underestimated them.(152)

To begin with, Congress failed to recognize the diversity of species protected under section 4. Instead, it displayed a profound bias toward charismatic megafauna.(153)

In the House, Representative Dingell, for example, claimed that his bill would protect American species like the eastern timber wolf, the wolverine, and the eastern cougar, as well as the kangaroo and the elephant.(154) Representative Leonor Sullivan (D-Mo.), the chair of the committee that oversaw H.R. 37, urged the passage of the ESA to protect whales and "spotted cats."(155) No one in the House mentioned mollusks or anthropods, and only a few mentioned plants.(156)

Senators also referred almost exclusively to the need to protect charismatic wildlife. Senator William Roth (R-Del.) urged the passage of the ESA because his constituents in Delaware "admire the graceful and inspiring flight of the few American bald eagles remaining in the state."(157) Senator Williams, the sponsor of the Senate bill, exclaimed, "Most animals are worth very little in terms of dollars and cents. However, their esthetic value is great indeed. The pleasure of simply observing them ... is unmeasurable."(158) These sentiments applied poorly to species like the snail darter and furbish lousewort that later aroused ESA controversy.

Congress's failure to recognize that the ESA would protect plants almost as much as wildlife can perhaps be explained by other reasons, too. When Congress considered the ESA in 1973, the status of plant species was poorly understood. To remedy this problem, Congress included a provision in the ESA, section 12, directing the Smithsonian Institute to study and report on endangered and threatened plant species in the United States.(159) Congress indicated that the results of the study would provide a basis for amending the ESA or writing new legislation, although in the meantime plants would continue to be listed under section 4 according to the same criteria as wildlife.(160) When the report was finally completed in 1974, it did not lead to any amendments in the ESA or to additional legislation.(161) Instead, plants continued to be listed according to section 4. In this way, the strong protections of the ESA apply almost equally to plants.(162)

The Nixon administration shared congressional sentiment regarding the kinds of species the ESA would, or should, protect. Although the Nixon administration bills were in other ways remarkably similar to the bills introduced by the Democrats in Congress, the administration bills explicitly did not extend protection to threatened or endangered plants.(163) During the signing ceremony, Nixon's comments seemed oblivious to the change. "[T]his legislation provides the Federal Government with the needed authority to protect an irreplaceable part of our national heritage--threatened wildlife."(164) Not only did Nixon ignore plants, but his comments reflected the widespread perception of the Act as an attempt to preserve only wildlife that was representative of the nation's heritage.

Congress and the administration's focus on charismatic megafauna reflected the emphasis of the news media, special interests, and, presumably, the public. In June of 1973, The Washington Post wrote an editorial supporting the passage of the ESA. Of the "some 900" animal species threatened with extinction, the editorial specifically mentioned only the cheetah, the Puerto Rican parrot, and the red wolf.(165) A couple of months later, The Washington Post wrote another editorial in support of the ESA, in which it focused on the plight of endangered wolves.(166) In September, The Washington Post published an article on the ESA that featured a picture of a timber wolf. The article indicated that aside from the wolf, the ESA would also protect "the bald eagle, mountain lion, grizzly bear, black footed ferret, cheetah, and other endangered animals."(167) Defenders of Wildlife urged passage of the ESA to protect the endangered eastern timber wolf, American alligator, and grizzly bear.(168)

Even the scientific literature of the time emphasized charismatic megafauna. For example, one treatise on extinct and vanishing animals, originally published in German, began with a summary of the disappearance of the bison from the American Great Plains and proceeded from there to focus exclusively on large, appealing animals.(169) A pictorial work entitled Endangered Species, published in 1972, advocated the role of zoos in species conservation.(170) Of the seventy-five species featured, every one was either an animal or a bird, and most were big animals like the "maned" wolf, the polar bear, and the Rocky Mountain goat.(171) In 1973, the International Union for the Conservation of Nature and Natural Resources published a list of species that had become extinct since 1600.(172) The list consisted entirely of mammals.(173)

Members of Congress almost universally ignored section 7's requirement of interagency cooperation, presumably because they found it relatively unimportant or uncontroversial.(174) There was, however, at least one instance during deliberations over the ESA in which Congress discussed section 7. Senator Tunney, the Senate manager of the bill, described what he thought Section 7 meant:

   [A]s I understand it, after the consultation process took place ... the
   Corps of Engineers would not be prohibited from building such a road if
   they deemed it necessary to do so[;] ... they would have the final decision
   after consultation .... So, as I read the language, there has to be
   consultation. However, the Bureau of Public Roads or any other agency would
   have the final decision as to whether such a road should be built.(175)

According to Tunney, section 7 meant that agencies proposing development projects that might jeopardize listed species must consult with the Department: of the Interior; however, the ultimate decision whether or not to continue with a project rested with the development agency. This would have rendered section 7 largely procedural rather than substantive, much like the requirements for an Environmental Impact Statement found in the National Environmental Policy Act of 1969.(176) Of course, this interpretation differed entirely from the Supreme Court's interpretation of section 7 five years later.(177)

As for section 9, no one in Congress contemplated that the prohibition against taking a listed species might lead to the regulation of land use activities on private property. Congress also failed to make the connection between habitat degradation and the taking of a species as revealed by the silence of the committee reports, floor debates, and congressional hearings on the subject. Furthermore, there is little evidence that environmental organizations believed that section 9 extended to land use regulation. Only one reference by a representative of an environmental organization supported the position that section 9 applied to habitat degradation.(178) No member of Congress questioned him on this point or raised the issue elsewhere.

Despite the emergence of ecology earlier in the century and the rise of the modern environmental movement, congressional ignorance largely reflected the state of scientific understanding at the time. Not until the early 1980s did an appreciation for biological diversity become widespread.(179) Indeed, the word "biodiversity" was not known prior to the 1980s. The very idea of biodiversity "represented a distinct advance in conceptualization" because it stressed the importance of all species and emphasized habitat protection.(180) During the 1990s, scientists began to speak of the need to protect ecosystem health as well as biodiversity. Some even criticized the ESA's emphasis on identifying and protecting individual species as scientifically anachronistic.(181)

Few scientists critical of the ESA today argue that it should be scrapped altogether. Instead, most propose that the ESA merely be reinterpreted and implemented to better conform with current scientific understanding.(182) To a certain extent, this has been the case with section 7 and section 9, where what it means to jeopardize or harm a species differs today from what it meant in 1973.(183)

Congressional inability to predict the potential scope of sections 4, 7, and 9 also reflected an inaccurate assessment of the nature of the modern extinction crisis. For example, Senator Williams, the Senate sponsor of the ESA, stated that overhunting was "undoubtediy" the "major reason" for species extinction.(184) This view supports the argument that Congress was concerned primarily with protecting game species rather than plants and relatively unknown species of fish and wildlife. Moreover, if overhunting was the primary cause for species extinctions, then all that was required to solve the problem was to prohibit hunting and other activities that directly harmed species. Provisions like section 7 and section 9 that extended to habitat modification would not be necessary. Of course, scientists today believe the modern extinction crisis stems primarily from adverse habitat modification associated with human activities, not overhunting.(185)

Congressional scientific knowledge in 1973 also mirrored the popular understanding of the day. An editorial in The Washington Post, for example, blamed the extinction crisis largely on the market in international trade of endangered species.(186) The Washington Post stated, "Big money is at stake for many nations that trade in wild animal skins, in whale oil for cosmetics, in supplying wildlife for zoos, pets and medical research."(187) To take another example, in urging the passage of a stronger ESA, The Washington Post criticized the weaknesses of the 1969 act, but for the wrong reasons. Specifically, the paper criticized the lack of protection for species that were merely threatened with becoming endangered.(188) Although the distinction drawn by the ESA between threatened and endangered species was significant, it was not nearly as crucial to species survival as sections 4, 7, and 9.(189)

Finally, despite the rhetoric over the ESA, most people in and outside of Congress thought the Act relatively insignificant. With the exception of The Washington Post, the national press all but ignored congressional consideration of the ESA during 1973. Moreover, the press barely even mentioned the ESA's enactment. The day after the ESA became law, The New York Times noted its passage as an afterthought in an unrelated article on an act transferring federal job-training funds to the states.(190) The New York Times sandwiched the one-sentence byline about the passage of the ESA between descriptions of an act to build a Lyndon Baines Johnson Memorial grove of trees on the banks of the Potomac and an act to insure mortgage insurance for fire safety equipment in nursing homes. Despite earlier editorials about protecting endangered species, The Washington Post gave no more coverage to the passage of the ESA than did The New York Times.(191) The Los Angeles Times, too, covered the signing of the ESA in one sentence, while The Chicago Tribune ignored the Act altogether.(192)

IV. IN THE WAKE OF THE ESA--THE SNAIL DARTER CONTROVERSY 

For several years after 1973, the scope of the ESA remained untested, and the ESA continued to enjoy almost unqualified support.(193) In 1975, however, FWS listed the snail darter, a three-inch perch, as endangered.(194) Although it had no known commercial or recreational worth, soon after listing a local conservation group brought a suit against the Tennessee Valley Authority (TVA) to halt the completion of Tellico Dam on the Little Tennessee River, the only known habitat of the darter.(195) The suit asserted that the dam would jeopardize the darter, contrary to the ESA's requirement that all federal agencies "take such action necessary to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species."(196) Based on this language, plaintiffs argued that section 7 prevented TVA from completing the dam.(197)

TVA countered that section 7 could not stop the dam because TVA had the final say, after consulting with the Department of the Interior, on whether or not to continue its project.(198) TVA also argued that section 7 did not apply because TVA began construction of the dam before the ESA was enacted and because Congress had demonstrated its support for the dam by repeatedly allocating money for its completion.(199) Finally, TVA stressed that the dam was vital for the economic rehabilitation of the entire region.(200) But in 1978, in the landmark decision of Tennessee Valley Authority v. Hill,(201) the Supreme Court disagreed with TVA's arguments.

The Supreme Court stated that it relied primarily on the plain language of section 7 to reach its decision. Chief Justice Burger wrote for the majority opinion that "one would be hard pressed to find a statutory provision whose terms were any plainer than those in [sections] 7."(202) The Court further concluded that the Act's legislative history revealed that Congress intended to halt and reverse the trend toward species extinction--whatever the cost.(203) In this way, Congress perhaps fell victim to its own rhetoric. In a five to three decision, the Court interpreted section 7 as an absolute bar against any action by any federal agency that might jeopardize a species listed as threatened or endangered.(204)

The Court's decision outraged many in Congress. Representative Robert Duncan (R-Tenn.) claimed that Congress never "intended for this legislation to afford any single-purposed interest [to exercise] a potential veto over virtually any Federally funded or authorized project."(205) Senator Malcolm Wallop (R-Wyo.), worried that the decision would lead to a wave of lawsuits designed "to stop Federal projects as a primary goal and in a way never intended by Congress."(206) Representative Wesley Watkins (D-Okla.) said, "There is a serious possibility that a mutation or long-distant cousin of the snail darter or something in my district will prevent any type of economic growth for our people."(207) Most congressmen believed that the Supreme Court had misinterpreted section 7.

The Supreme Court's ruling also contributed to a popular perception of the Act as inflexible and antidevelopmental. To many, the fact that an almost unknown, unimportant fish could stop a hundred-million-dollar dam in the midst of an energy crisis and rampant inflation seemed ridiculous. The industrial lobby, too, proved to be a growing counter-weight to the environmental lobby, pressuring many in Congress to revise the Act.(208) Ultimately, the Senate voted to amend the ESA 94 to 3, while the House approved the amendments with a vote of 384 to 12.(209) This lopsided vote indicates that most in Congress in 1978 believed that the Supreme Court was wrong and that economic considerations should limit the ESA. Congress designed the 1978 amendments to counteract the Court's expansive interpretation of section 7.(210) The amendments created the Endangered Species Committee (ESC), dubbed the "God Squad," and gave it the power to grant exemptions to federal projects halted by the Act if the economic benefits of those projects outweighed the benefits of species protection.(211) The committee consisted of the Secretaries of the Interior, Agriculture, and Army, the Chairman of the Council of Economic Advisors, the Administrator of the EPA, the Administrator of the National Oceanic and Atmospheric Administration, and an individual nominated by the governor of the affected state and appointed by the President.(212) An exemption could be granted on the approval of five out of the seven members, and Congress anticipated that the ESC would promptly exempt Tellico Dam.(213) Surprisingly, however, the God Squad refused to do this, in part because the dam made no economic sense.(214)

Exasperated, Congress then sought a way around the God Squad's decision. Senator John Chafee (R-R.I.), for example, exclaimed, "We who voted for the Endangered Species Act with the honest intention of protecting such glories of nature as the wolf, the eagle, and other natural treasures have found that others with wholly different motive are using this noble act ... for merely obstructive ends."(215) Senator James Sasser (D-Tenn.) remarked, "I do not believe that most of the Members who voted for that bill ever intended it to be used to halt water resources development."(216) In 1979, Congress approved a nongermane rider to the Energy and Water Development Appropriations Act of 1980, which granted a legislative exemption from section 7.(217) TVA finally finished its dam. Ironically, however, soon after the dam's completion, FWS discovered healthy populations of snail darters in other Tennessee rivers and down-listed the species from endangered to threatened.(218)

The snail darter controversy had several consequences. First, FWS became more cautious about listing species, using its discretion to avoid the mandate of section 4. Section 4 instructs the Secretary of the Interior to list species based solely upon the best scientific knowledge available,(219) but the 1978 amendments that created the God Squad also increased the agency's discretionary power over the Act's implementation.(220) For example, the 1978 amendments required the Secretary of the Interior to designate critical habitat, but the Secretary could delay or withdraw the proposed listing if the critical habitat was not yet determinable. In the wake of Tennessee Valley Authority v. Hill, FWS began to exercise its discretion to avoid controversy, even if that meant circumventing section 4.(221)

The snail darter controversy also altered congressional perception of the ESA. Congress no longer viewed the Act as having relatively no cost in preserving only certain symbolic species. Indeed, the ESA acquired many enemies within Congress, and nationwide, as a result of the snail darter. The controversy also contributed to a general reaction against the environmental movement in the late 1970s and early 1980s.(222)

In 1980, widespread antiregulatory sentiment helped elect Ronald Reagan to the Presidency. Reagan rode into the White House as part of the sagebrush rebellion, an antienvironmental movement originating in the West.(223) Reagan called himself a "Sagebrush Rebel" and pledged "to work toward a Sagebrush solution" for the nation's environmental problems.(224) Reagan appointed James Watt, a known antienvironmentalist, as the Secretary of the Interior.(225)

Watt led, in the words of historian Sam Hays, "a massive assault on environmental programs."(226) Spearheading the sagebrush rebellion in the early eighties, Watt profoundly influenced FWS, virtually halting the ESA's implementation and enforcement. During the first year of the Reagan presidency not one new species was proposed for listing, and, although Watt did not last long as Secretary of the Interior, FWS refused to implement and aggressively enforce the ESA throughout the 1980s.(227) Eventually, however, in a number of cases arising from the controversy over the northern spotted owl, the courts forced the hand of the reluctant administration.(228) As with the snail darter, controversy over the spotted owl during the early 1990s led to hot debate in the halls of Congress over the future of the ESA.(229)

V. CONCLUSION

The ESA is a political response to the modern extinction crisis, which is itself part of a much larger history of evolution. Since life began on this planet about four billion years ago, the number of species has grown steadily, perhaps reaching as many as one hundred million.(230) Our species, Homo sapiens, emerged only about one hundred thousand years ago, at the time of the greatest biodiversity in the history of life.(231) Since then, however, the number of species on this planet has plummeted--especially over the last few centuries--chiefly as a result of human activity.(232) We destroy species in three ways: 1) overhunting or harvesting, 2) introduction of nonnative species to new areas--including the spread of disease, and, most importantly, 3) degradation of habitat.(233) Because of human activity, biodiversity today has fallen to its lowest level in sixty-five million years--about the time the dinosaurs died out.(234)

As the fate of the dinosaurs attests, however, extinctions occurred long before humans evolved. Specifically, scientists have identified five periods of mass extinctions within the last five hundred million years.(235) The most well known of these include the Permian-Triassic extinctions 245 million years ago, the Cretaceous-Tertiary extinctions 65 million years ago, and the Pleistocene-Holocene extinctions only 11,000 years ago.(236) Approximately sixty-five percent of terrestrial species perished during the Permian-Triassic, while ninety percent of terrestrial and marine reptiles, including the dinosaurs, disappeared during the Cretaceous-Tertiary.(237) During the Pleistocene-Holocene, climate change and prehistoric human overhunting killed off many large mammal species like the giant sloth, the mastodon, and the sabertooth tiger.(238) A period of massive species extinction, therefore, is nothing new.

Nevertheless, the modern extinction crisis differs in important ways from earlier events. First, modern extinctions occur at an unprecedented rate, prompting many scientists to conclude the present situation has reached "crisis" proportions.(239) Second, with the possible exception of the Pleistocene-Holocene extinctions, major physical events like climate change precipitated earlier periods of mass extinction while the activities of one species alone have caused the current crisis. Finally, modern extinctions threaten all groups of organisms, not just particular groups like dinosaurs or large mammals.(240) While extinction may be the natural end of evolution, humans have altered and accelerated the process.

The precise rate of modern extinctions, however, is difficult to estimate. Currently, FWS has listed over 1000 animals and more than 600 plants worldwide as either endangered or threatened.(241) In the United States, FWS has listed 924 species as endangered and 255 as threatened.(242) One estimate places the current global extinction rate somewhere between one hundred to one thousand times the prehuman level.(243)

There are many reasons why we should care about the scope and rate of modern extinctions. To begin with, many of our modern drugs derive from plants and animals. For example, the rosy periwinkle, a tropical flower, supplies compounds necessary for a chemotherapy treatment that has increased dramatically the remission rates of certain cancers.(244) Plants and animal products provide medical and pharmaceutical benefits to humans in countless other ways, even though scientists have studied only a small fraction of species for their potential uses. The overall economic value of plant- and animal-derived drugs and pharmaceuticals tops tens of billions of dollars annually.(245)

Biodiversity also preserves genetic diversity, essential for protecting and improving our food supply. Only about 130 plant species supply virtually all of the world's food crops and feed grains.(246) Modern agriculture has achieved unprecedented productivity among these crops, in part because of the uniformity of crop strains.(247) But this uniformity has left modern crops vulnerable to quickly evolving pests and blights.(248) Genetic diversity supplied by the wild cousins of commercial crops helps protect these crops, thus safeguarding our food supply.(249) To cite just one example, scientists added disease-resistant genes from a seemingly useless strain of wild wheat grass from Turkey to commercial wheat in the United States for a savings of $50 million annually.(250)

Furthermore, biodiversity contributes to ecosystem stability, sustaining natural resources and energy flows upon which we all depend. For example, through the process of photosynthesis, plants supply oxygen to the air we breathe. Forests reduce evaporation, limit erosion, and protect our water supplies. Insects and microorganisms feed on the wastes of animals, supplying nutrients to the soil from which we grow the food we eat. Species extinctions erode this ecological foundation. If enough species die out, our planetary ecosystem may collapse to the point where it can no longer support human life.(251)

But biodiversity is important for less ominous reasons. Many people simply enjoy plants and animals and feel extinction causes irreparable loss. "I wish to know an entire heaven and an entire earth," wrote Henry David Thoreau.(252) Less poetically, over one hundred years later Congress declared that species of fish, wildlife, and plants possess "esthetic," "educational,' "historical," and "recreational" value.(253) Even for those who do not take direct pleasure from contact with endangered species, just knowing that wild things thrive in faraway places can provide sufficient reason for preservation.

Finally, many simply believe that species should be protected for their own sake, that life has inherent value. Hindus, for example, hold all life sacred, while Judeo-Christians believe that humans are to be stewards for the Earth and the living things upon it. A1 Gore, for example, interprets the Old Testament story of Noah's Ark as a modern commandment: "Thou shalt preserve biodiversity."(254) For deep ecologists and many environmentalists, the human-caused loss of a species is both incalculable and immoral.(255)

Nevertheless, to many, the need to protect biodiversity seems less obvious than the need to protect other resources, like clean air and water. In part, this is because scientists often cannot quantify the loss of any particular species. No one knows exactly the worth of the snail darter or the spotted owl, or what affect their disappearance may have on human welfare. When confronted with palpable costs--like lost jobs and land use restrictions--enthusiasm for the protection of a particular species often fades. Congress passed the ESA in part to compensate for this scientific uncertainty and to remove the fate of species from the free market. By doing so, Congress sought to protect a common resource and a common heritage.

The ESA is now over a quarter-century old. It remains the "broadest and most powerful law" in the world for the protection of species.(256) Yet it is unclear whether the law has been successful. A recent report by the National Research Council found that the ESA has prevented the extinction of some species and slowed the decline of others, but "that the ESA by itself cannot prevent the loss of many species and their habitats."(257) Despite some ambivalence, the report concluded that the ESA is based on sound scientific principles.(258)

If success means the ESA has halted the global flood of modern extinctions, however, then the Act has failed. FWS claims that between 1968 and 1993, it removed seven species from the list because of extinction, while another eight still listed are probably extinct, awaiting final confirmation of their fate.(259) Yet, since the ESA's passage in 1973, an average of eighty-five species have been added to the list every year.(260) Moreover, scientists believe that sixty species of mammals have died out in the recent past, and that about forty species of freshwater fishes in the United States have become extinct over the last one hundred years.(261) Given the scope of the modern crisis, the ESA may seem to have had a negligible impact on the rate of global extinctions.

Yet these numbers do not tell the whole story. Clearly, endangered and threatened species are better off with the ESA than without it. When originally listed, virtually all species were declining in numbers. After listing, however, many species have stabilized and improved. One statistical estimate concludes that for every year of listing three out of two hundred listed species formerly declining in number began to increase.(262) To date, listing appears to have turned the fortunes of about half of the species protected by the Act.(263) Slowly, the ESA seems to be making a difference in the rate of global extinctions.

Furthermore, if Congress primarily intended the ESA to save charismatic megafauna, then the Act has clearly succeeded. In May of 1998, Secretary of the Interior Bruce Babbitt announced, "In the near future, many species will be flying, splashing and leaping off the list. They made it. They're graduating."(264) The twenty-nine species to be upgraded from endangered to threatened, or removed from the list altogether, include the gray wolf, the Columbian white-tailed deer, and the bald eagle. The graduating class, however, included few species that could not fly, splash, or leap.(265) The ESA may not have halted the flood of global extinctions, but it has helped save those species most representative of our national heritage and dearest to the American people. Despite the Act's unanticipated consequences, perhaps it has achieved what Congress intended it to after all.

(1) ALDO LEOPOLD, The Round River, in A SAND COUNTY ALMANAC AND ESSAYS ON THE CONSERVATION FROM ROUND RIVER 190 (Ballantine ed., 1970).

(2) 124 CONG. REC. 21,331 (July 18, 1978) (statement of Sen. Garn), reprinted in COMMITTEE ON ENV'T & PUB. WORKS, LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, at 1009 (1982) [hereinafter LEGISLATIVE HISTORY].

(3) 16 U.S.C. [subsections] 1531-1544 (1994).

(4) Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).

(5) RODERICK F. NASH, RIGHTS OF NATURE: A HISTORY OF ENVIRONMENTAL ETHICS 175 (1989); see also JOSEPH M. PETULLA, AMERICAN ENVIRONMENTALISM 51 (1980) (comparing the ESA with the Declaration of Independence and its guarantees of life and liberty).

(6) Bruce Babbitt, The Endangered Species Act and "Takings": A Call for Innovation Within the Terms of the Act, 24 ENVTL. L. 355, 356 (1994).

(7) Endangered Species Act Amendments of 1993: Hearings on S. 921 Before Subcomm. on Clean Water, Fisheries, & Wildlife of the Senate Comm. on Env't and Pub. Works, 103d Cong. 2 (1994) (statement of Sen. Graham).

(8) Id.

(9) 16 U.S.C. [subsections] 1533, 1536, 1538 (1994).

(10) Id. [sections] 1540(g).

(11) Id. [sections] 1533(b)(1)(A).

(12) Id. [subsections] 1533(15), 1533(a)(1) (statutory authority to delegate).

(13) Id. [sections] 1532(16).

(14) Id. [sections] 1532(6), (20).

(15) Id. [sections] 1532(8), (14), (16).

(16) Id. [sections] 1533(b)(1)(A).

(17) Id. [sections] 1536(a)(2).

(18) Act of Nov. 14, 1986, Pub. L. No. 99-659, 100 Stat. 3706 (1986); Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411 (1982); Act of Dec. 28, 1979, Pub. L. No. 96-159, 93 Stat. 1225 (1979); Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3751 (1978).

(19) 437 U.S. 153 (1978).

(20) Id. at 173.

(21) Id. at 195.

(22) 16 U.S.C. [sections] 1538(a) (1994). The [sections] 9 prohibition does not automatically apply to threatened species. Rather, threatened species are protected by regulations the Secretary deems "necessary and advisable." Id. [sections] 1533(d).

(23) Id. [sections] 1532(19). This broad prohibition applies only to the taking of fish and wildlife. Weaker prohibitions apply to the taking of plants. Id. [sections] 1538(a)(2)(B).

(24) 40 Fed. Reg. 44,412, 44,416 (Sept. 26, 1975). In 1981 the Secretary revised the original 1975 regulation to emphasize that actual death or injury is required for a [sections] 9 violation. See 50 C.F.R. [sections] 17.3 (1994).

(25) J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve Species, 25 ENVTL. L. 1107, 1115 (1995). Amendments to the ESA in 1982 provided for incidental take permits allowing limited exemptions from the [sections] 9 prohibition, but because the application process is lengthy, expensive, and difficult, few landowners had applied for such permits. See Robert Meltz, Where the Wild Things Are: The Endangered Species Act and Private Property, 24 ENVTL. L. 369 (1994). However, the Clinton administration's "no surprises" policy has dramatically increased the use of the incidental take permit allowance. See Donald C. Baur & Karen L. Donovan, The No Surprises Policy: Contracts 101 Meets the Endangered Species Act, 27 ENVTL. L. 767 (1997).

(26) See Palila v. Hawaii Dep't of Land & Natural Resources, 471 F. Supp. 985 (D. Haw. 1979), affd, 639 F.2d 495 (9th Cir. 1981); see also Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).

(27) James Bornemeier, Bipartisan Bid to Revamp Endangered Species Act Introduced in House, L.A. TIMES, Sept. 8, 1995, at A3.

(28) Heather Dewar, Gingrich Is Going for the Green, Wis. ST. J., Apr. 25, 1996, at 3A.

(29) Id.

(30) See Emergency Supplemental Appropriations and Recissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73, 86 (1995) (including a rider withdrawing all funding from FWS for listing new species as endangered or threatened during the remainder of the fiscal year 1995).

(31) See John H. Cushman, Linking Endangered Species Act to Spending, N.Y. TIMES, Oct. 10, 1998, at Al0 (reporting on the most recent attempts to amend the ESA).

(32) Act of July 27, 1868, ch. 273, [sections] 6, 15 Stat. 240 (repealed 1944).

(33) Act of February 9, 1871, 16 Stat. 593 (repealed 1964).

(34) Act of March 3, 1891, ch. 561, [sections] 24, 26 Stat. 1103 (repealed 1976).

(35) Id.

(36) See SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSERVATION MOVEMENT 1890-1920, at 122-46 (1959).

(37) See id.

(38) See id. at 143, 192-93.

(39) See PETULLA, supra note 5.

(40) See 43 CONG. REC. H2105-09 (daily ed. Mar. 10, 1874); see also Tina S. Boradiansky, Conflicting Values: The Religious Killing of Federally Protected Wildlife, 30 NAT. RESOURCES J. 709, 714-15 (1990).

(41) See 44 CONG. REC. H1237-41 (daily ed. Feb. 23, 1876).

(42) Act of May 7, 1894, ch. 72, 28 Stat. 73 (codified as amended at 16 U.S.C. [sections] 26 (1981)); see generally ALFRED RUNTE, NATIONAL PARKS (2d ed. 1987) (describing .the importance of national parks for wildlife preservation).

(43 See JOHN REIGER, AMERICAN SPORTSMEN AND THE ORIGINS OF CONSERVATION (1975); JAMES TOBER, WHO OWNS THE WILDLIFE? (1982).

(44) 161 U.S. 519 (1896).

(45) Id. at 523.

(46) Lacey Act of 1900, 31 Stat. 187 (codified at 16 U.S.C. [subsections] 701, 3371-3378 and 18 U.S.C. [subsections] 42-44 (1994)).

(47) See 33 CONG. REC. H4871 (1900) (statement of Rep. Lacey) (describing the problem of illegal hunting in one state being trafficked to another state). as 18 U.S.C. [sections] 43 (1994).

(49) See GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAW LAND AND RESOURCES LAW 782 (3d ed. 1993).

(50) See id. at 107.

(51) See JAMES TREFETHEN, AN AMERICAN CRUSADE FOR WILDLIFE 65 (1975).

(52) Convention for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-Gr. Brit., T.S. No. 628 (Great Britain signing on behalf of Canada as overseer of Canadian foreign affairs).

(53) Id.

(54 Migratory Bird Treaty Act of 1918, ch. 128, 40 Stat. 755 (codified as amended at 16 U.S.C. [subsections] 703-712 (1994)).

(55) 252 U.S. 416 (1920).

(56) Id. at 434-35.

(57) Migratory Bird Conservation Act of 1929, ch. 257, 45 Stat. 1222 (codified at 16 U.S.C. [sections]8 715-715s (1994)).

(58) Fish and Wildlife Coordination Act, ch. 55, 48 Stat. 401 (1934) (codified as amended at 16 U.S.C. 88 661-667e (1994)).

(59) Id. [sections] 2.

(60) Id. [sections] 3(b).

(61) Id. 88 1-3.

(62) Bald Eagle Protection Act, ch. 278, 54 Stat. 50 (1940) (codified at 16 U.S.C. [sections] 8 668-668(d) (1994)).

(63) ALDO LEOPOLD, A SAND COUNTY ALMANAC vii (commemorative ed., Oxford 1989) (1949).

(64) Id. at 109.

(65) See id. at xv.

(66) RACHEL CARSON, SILENT SPRING (1962).

(67) Id.

(68) See generally STEVEN YAFFEE, PROHIBITIVE POLICY 37-38 (1982) (on the catalyzing effect of charismatic endangered species on environmental activism in general).

(69) See SAMUEL HAYS, BEAUTY, HEALTH, AND PERMANENCE (1987).

(70) See Wilderness Act of 1964, Pub. L. No. 88-577, 78 Stat. 890 (codified as amended at 16 U.S.C. [subsections] 1131-1136 (1994)).

(71) YAFFEE, supra note 68, at 34.

(72) Id. at 35.

(73) Id.

(74) Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, [sections] l(a), 80 Stat. 926, repealed by Endangered Species Act of 1973 [sections] 14, 87 Stat. 884, 903.

(75) Id. [sections] 1(b).

(76) Id. [sections] 2(d).

(77) Id. [sections] l(c).

(78) Id. [sections]4.

(79) Id. [sections] 4(c).

(80) Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 8 l(a), 80 Stat. 926, repealed by Endangered Species Act of 1973 8 14, 87 Stat. 884, 903.

(81) Id. [sections] l(b).

(82) Id. [sections] 4(c).

(83) Id. [subsections] 1(c), 2(b).

(84) Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275, repealed by Endangered Species Act of 1973 8 14, 87 Stat. 884, 903.

(85) Id. 8 3(a).

(86) Id. 82.

(87) See Tom Garrett, Wildlife, in NIXON AND THE ENVIRONMENT 129, 131 (James Rathlesberger ed., 1972).

(88) Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275 repealed by Endangered Species Act of 1973 8 14, 87 Stat. 884, 903.

(89) Id. [subsections] (2), 5(b).

(90) See Carole L. Gallagher, The Movement to Create an Environmental Bill of Rights: From Earth Day, 1970 to the Present, 9 FORDHAM ENVTL. L.J. 107, 107 (1997).

(91) Pub. L. No. 92-195, 85 Stat. 649 (1971) (codified at 16 U.S.C. 88 1331-1340 (1994)).

(92) Id.

(93) Pub. L. No. 92-552, 86 Stat. 1027 (1972) (codified at 16 U.S.C. 88 1361-1421 (1994)).

(94) Id.

(95) Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 493 U.N.T.S. 293.

(96) Id. at 1092; 16 U.S.C. [subsections] 1361-1362 (1994).

(97) Richard Nixon's Statement on Transmitting a Special Message to the Congress Outlining the 1972 Environmental Program, 50 PUB. PAPERS 183 (Feb. 8, 1972).

(98) Id. at 182-83.

(99) See YAFFEE, supra note 68, at 49.

(100) Id.

(101) See H.R. 37, 93d Cong. (1973); see also 119 CONG. REC. 922 (Jan. 11, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra note 2, at 72.

(102) See S. 1983, 93d Cong. (1973).

(103) See President Nixon's State of the Union Message to the Congress on Natural Resources and the Environment, 44 PUB. PAPERS RS 94, 101; see also H.R. 4758, 93d Cong. (1973); S. 1592, 93d Cong. (1973) (sponsored by Sen. Warren Magnuson (D-Wash.) and Sen. Mark Hatfield (R-Or.)).

(104) See SENATE COMM. ON INTERIOR & INSULAR AFF., 93d CONG., CONG. AND THE NATION'S ENVIRONMENT: ENVIRONMENTAL AND NATURAL RESOURCE AFFAIRS OF THE 93D CONGRESS 561 (Comm. Print 1950).

(105) 119 CONG. REC. 25,769 (July 24, 1973) (statement of Sen. Stevens), reprinted in LEGISLATIVE HISTORY, supra note 2, at 385.

(106) See Endangered Species Act of 1973: Hearings on S. 1592 and S. 1983 Before the Subcomm. on Env't. of the Senate Comm. on Commerce, 93d Cong. 108-11 (1973) [hereinafter 1973 Senate Hearings] (statement of Lawrence Jahn, Vice-President of the Wildlife Management Institute); see also George Wilson, Hill Vote Set on Bill to Save Animals from Extinction, WASH. POST, Sept. 16, 1973, at A2.

(107) See YAFFEE, supra note 68, at 39-40, 42.

(108) Id.

(109) 16 U.S.C. [sections] 1538 (1994).

(110) 119 CONG. REC. 30,165 (Sept. 18, 1973) (statement of Rep. Grover), reprinted in LEGISLATIVE HISTORY, supra note 2, at 199.

(111) Editorial, Protecting Endangered Species, WASH. POST, June 26, 1973, at A22; see also Stephen Seater, Defenders of Wildlife, Protection of Wildlife, WASH. POST, July 4, 1973, at A27 (arguing for federal oversight of endangered species legislation).

(112) 119 CONG. REC. 30,163 (Sept. 18, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra note 2, at 194.

(113) 119 CONG. REC. 30,163 (Sept. 18, 1973) (statement of Sen. Williams), reprinted in LEGISLATIVE HISTORY, supra note 2, at 376.

(114) 119 CONG. REC. 25,670 (July 24, 1973) (statement of Rep. Stevens), reprinted in LEGISLATIVE HISTORY, supra note 2, at 361.

(115) 119 CONG. REC. 25,694 (July 24, 1973), reprinted in LEGISLATIVE HISTORY, supra note 2, at 409-10.

(116) Id.

(117) 119 CONG. REC. 30,165 (Sept. 18, 1973) (statement of Sen. Grover), reprinted in LEGISLATIVE HISTORY, supra note 2, at 200.

(118) H.R. REP. No. 93-412 (1973).

(119) 119 CONG.. REC. 30,164 (Sept. 18, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra note 2, at 196.

(120) 119 CONG. REC. 30,167-68 (Sept. 18, 1973), reprinted in LEGISLATIVE HISTORY, supra note 2, at 200.

(121) See 119 CONG. REC. 30,157-68 (Sept. 18, 1973), reprinted in LEGISLATIVE HISTORY, supra note 2, at 180-205.

(122) H.R. CONF. REP. No. 93-740, at 2 (1973), reprinted in 1973 U.S.C.C.A.N. 3001, 3001-07.

(123) Compare H.R. 37 [sections] 3(11), 93d Cong. (1973) with S. 1983 [sections] 3(15), 93d Cong. (1973).

(124) H.R. CONF. REP. No. 93-740 (1973), reprinted in 1973 U.S.C.C.A.N. 3001, 3001-07; see also 119 CONG. REC. 42,912 (Dec. 20, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra :note 2, at 480.

(125) 119 CONG. REC. 42,535 (Dec. 19, 1973), reprinted in LEGISLATIVE HISTORY, supra note 2, at 474.

(126) 119 CONG. REC. 42,912 (Dec. 20, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra note 2, at 479-80.

(127) 119 CONG. REC. 42,915-16 (Dec. 20, 1973), reprinted in LEGISLATIVE HISTORY, supra note 2, at 483-85.

(128) Coincidentally, three of these four representatives were not re-elected in 1974. See Biographical Directory of the U.S. Congress (visited Dec. 5, 1998) <http://bioguide.congress. gov/>.

(129) President Nixon's Statement on Signing the Endangered Species Act of 1973, 374 PUB. PAPERS 1027, 1027-28 (Dec. 28, 1973).

(130) Endangered Species Act, Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified as amended at 16 U.S.C. [subsections] 1531-.1544 (1994)).

(131) YAFFEE, supra note 68, at 48.

(132) Garrett, supra note 87, at 130.

(133) Saving the World's Wildlife, WASH. POST, Feb. 19, 1973, at A14.

(134) See HAYS, supra note 69, at 57-58.

(135) President Nixon's Statement on Transmitting a Special Message to the Congress Outlining the 1972 Environmental Program, 50 PUB. PAPERS 173 (Feb. 8, 1972).

(136) The consideration and passage of the ESA proceeded the Saturday Night Massacre and the beginning of the fight over the Nixon tapes. Nixon resigned on August 8, 1974. See STANLEY KUTLER, THE WARS OF WATERGATE: THE LAST CRISIS OF RICHARD NIXON 383442, 547- 48 (1990).

(137) See John B. Flippen, The Nixon Administration, Timber, and the Call of the Wild, 19 ENVTL. HIST. REV. 37 (1995) (arguing that Nixon's commitment to the environment was insincere and opportunistic).

(138) 1973 Senate Hearings, supra note 106, at 50-148.

(139) Id. at 122-23 (statement of Maxwell Rich, Executive Vice-President of the National Rifle Association).

(140) Id. at 106, 108, 127 (statements of John Gottschalk, Executive Vice President of the International Association of Game, Fish, and Conservation Commissioners; Lawrence Jahn, Vice President of the Wildlife Management Institute; and James Sharp, attorney for the Fur Conservation Institute).

(141) Endangered Species: Hearings on H.R. 37 and Seven Identical Bills Before the Subcomm. on Fisheries and Wildlife Conservation and the Env't of the House Comm. on Merchant Marine and Fisheries, 93d Cong. 1 (1973) (statement of Rep. Dingell).

(142) Protecting Endangered Species, WASH. POST, June 26, 1973, at A22.

(143) YAFFEE, supra note 68, at 51.

(144) Id.; Garrett, supra note 87, at 130.

(145) 119 CONG. REC. 30,162-63 (Sept. 18, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra note 2, at 193-94. 146 Id. (147) 119 CONG. REC. 922 (Jan. 11, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra note 2, at 72-73.

(148) 16 U.S.C. [sections] 1535 (1994).

(149) 119 CONG. REC. 25,668 (July 24, 1973) (statement of Sen. Tunney), reprinted in LEGISLATIVE HISTORY, supra note 2, at 359.

(150) 119 CONG. REC. 25,670 (July 24, 1973) (statement of Sen. Stevens), reprinted in LEGISLATIVE HISTORY, supra note 2, at 362.

(151) S. REP. No. 93-307, at 1 (1973).

(152) ROCKY BARKER, SAVING ALL THE PARTS 19 (1993); see also YAFFEE, supra note 68, at 54-56.

(153) This phrase was coined by Dennis Murphy, Director, Center for Conservation Biology, Stanford University. Charles C. Mann & Mark L. Plummer, The Butterfly Problem, ATLANTIC MONTHLY, Jan. 1992, at 49.

(154) 119 CONG. REC. 922 (Jan. 11, 1973) (statement of Rep. Dingell), reprinted in LEGISLATIVE HISTORY, supra note 2, at 72-73.

(155) 119 CONG. REC. 30,162 (Sept. 18, 1973) (statement of Rep. Sullivan), reprinted in LEGISLATIVE HISTORY, supra note 2, at 192.

(156) See, e.g., 119 CONG. REC. 25,692 (July 24, 1973) (statement of Sen. Roth), reprinted in LEGISLATIVE HISTORY, supra note 2, at 406.

(157) 119 CONG. REC. 25,693 (July 24, 1973) (statement of Sen. Roth), reprinted in LEGISLATIVE HISTORY, supra note 2, at 407.

(158) 119 CONG. REC. 25,675 (July 24, 1973) (statement of Sen. Williams), reprinted in LEGISLATIVE HISTORY, supra note 2, at 374.

(159) 16 U.S.C. [sections] 1541 (1994).

(160) Id.

(161) SMITHSONIAN INST., REPORT ON ENDANGERED AND THREATENED PLANT SPECIES OF THE UNITED STATES, H.R. Doc. No. 94-51 (1975), expanded and reprinted in EDWARD A. AYENSU & ROBERT A. DE FILIPPS, ENDANGERED AND THREATENED PLANTS OF THE UNITED STATES (1978).

(162) One major difference between the protection offered to plants and the protection offered to wildlife under the ESA is the lack of statutory "take" protection of plants under [sections] 9 of the ESA. 16 U.S.C. [sections] 1538 (1994).

(163) H.R. 4758, 93d Cong. (1973); S. 1592, 93d Cong. (1973).

(164) President Nixon's Statement on Signing the Endangered Species Act of 1973, 374 PUB. PAPERS 1027 (Dec. 28, 1973).

(165) Protecting Endangered Species, WASH. POST, June 26, 1973, at A22.

(166) The Dwindling Wolf Pack, WASH. POST, Aug. 7, 1973, at A18.

(167) George Wilson, Hill Vote Set on Bill to Save Animals from Extinction, WASH. POST, Sept. 16, 1973, at A2.

(168) Stephen R. Seater, Letter to the Editor: Protection of Wildlife, WASH. POST, July 4, 1973, at A27.

(169) VINSENZ ZISWILER, EXTINCT AND VANISHING ANIMALS: A BIOLOGY OF EXTINCTION AND SURVIVAL 1 (Fred & Pille Bunnell trans., Springler-Verlag ed., 1967) (1965).

(170) WOLFGANG ULLRICH, ENDANGERED SPECIES 6 (Erich Tylinek & Isabella Tylinek, trans.) (1971).

(171) Id.

(172) HARRY A. GOODWIN & J.M. GOODWIN, IUCN PAPER NO. 8, LIST OF MAMMALS THAT HAVE BECOME EXTINCT SINCE 1600 (1973).

(173) Id.

(174) See, e.g., S. REP. No. 93-412, at 9 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2997 (analyzing the effects of [sections] 7 in two sentences).

(175) The language referred to in this Senate bill was the identical language adopted in the ESA. 119 CONG. REC. 25,689-90 (July 24, 1973) (statement of Sen. Tunney), reprinted in LEGISLATIVE HISTORY, supra note 2, at 398-99 (responding to a concern that [sections] 7 might stop the Army Corps of Engineers from building a road in Kentucky).

(176) 42 U.S.C. [subsections] 4321-4370(d) (1994).

(177 Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978).

(178) 1973 Senate Hearings, supra note 106, at 80 (statement of Thomas Garrett, wildlife director, Friends of the Earth).

(179) Bryan Norton, Biological Resources and Endangered Species: History, Values, and Policy, in PROTECTION OF GLOBAL BIODIVERSITY 247, 250 (Lakshman D. Guruswamy & Jeffrey A. McNeely eds., 1998).

(180) Id. at 251.

(181) Id.

(182) Id.

(183) See supra notes 19-26 and accompanying text (discussing recent Supreme Court decisions that have redefined the meaning of the terms "harm" and "jeopardy" under the ESA).

(184) 1973 Senate Hearings, supra note 106, at 114.

(185) COMMITTEE ON SCIENTIFIC ISSUES IN THE ENDANGERED SPECIES ACT, SCIENCE AND THE ENDANGERED SPECIES ACT 72-73 (1995) [hereinafter SCIENCE AND THE ESA].

(186) Saving the World's Wildlife, WASH. POST, Feb. 19, 1973, at A14.

(187) Id.

(188) Protecting Endangered Species, WASH. POST, June 26, 1973, at A22.

(189) The ESA defines an "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. [sections] 1532(6) (1994). A "threatened species" is one "which is likely to become endangered species within the foreseeable future throughout all or a significant portion of its range." Id. [sections] 1532(20).

(190) President Signs Manpower Bill, N.Y. TIMES, Dec. 29, 1973, at 13.

(191) Austin Scott, Nixon Signs Bill, to Give States Manpower Funds, WASH. POST, Dec. 29, 1973, at A1.

(192) President Signs Bill Reshaping Federal Manpower Programs, L.A. TIMES, Dec. 29, 1973, at 1.

(193) Act of June 30, 1976, Pub. L. No. 94-325, 90 Stat. 724 (1976) (increasing appropriations $7 million beyond what the Secretary of the Interior requested); see also LEGISLATIVE HISTORY, supra note 2, at 505-11.

(194) 40 Fed. Reg. 47,505-06 (Oct. 9, 1975); see also 50 C.F.R. [sections] 17.11(I) (1976).

(195) Hill v. Tennessee Valley Auth-, 419 F. Supp. 753 (E.D. Tenn. 1976), rev'd, 549 F.2d 1064 (6th Cir. 1977), aff'd sub nom. Tennessee Valley Auth. (TVA) v. Hill, 437 U.S. 153 (1978).

(196) 16 U.S.C. [sections] 1536(a)(2) (1994).

(197) TVA, 437 U.S. at 161.

(198) Id. at 185 n.31.

(199) Id. at 173.

(200) Endangered Species Act Oversight: Hearing Before the Subcomm. on Resource Protection of the Senate Comm. on Env't and Pub. Works, 95th Cong. 279 (1977) [hereinafter ESA Oversight Hearing] (statement of Lynn Seeber, General Manager of the TVA).

(201) TVA, 437 U.S. at 153.

(202) Id. at 173.

(203) Id. at 174-87.

(204) Id. at 173.

(205) ESA Oversight Hearing, supra note 200, at 11.

(206) 124 CONG. REC. 9805 (Apr. 12, 1978) (statement of Sen. Wallop), reprinted in LEGISLATIVE HISTORY, supra note 2, at 922.

(207) 123 CONG. REC. 38,164 (Nov. 30, 1977) (Statement of Rep. Watkins), reprinted in LEGISLATIVE HISTORY, supra note 2, at 637.

(208) See Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act--A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 ENVTL. L. 845, 860 (1997).

(209) 123 CONG. REC. 38,164 (Nov. 30, 1977) (statement of Rep. Watkins), reprinted in LEGISLATIVE HISTORY, supra note 2, at 895-98, 1167-68.

(210) 16 U.S.C. [sections] 1531 (1994).

(211) Id. [sections] 1536(e).

(212) Id. [sections] 1536(e)(3)(G).

(213) Id. [sections] 1536(e)(5)(A).

(214) See Plater, supra note 208, at 858.

(215) S. REP. No. 96-151, at 14 (1979), reprinted in LEGISLATIVE HISTORY, supra note 2, at 1403 (additional views of Sen. Baker).

(216) 125 CONG. REC. 14,573 (June 13, 1979) (statement of Sen. Sasser), reprinted in LEGISLATIVE HISTORY, supra note 2, at 1411.

(217) Energy and Water Development Appropriation Act of 1979, Pub. L. No. 96-69, 93 Stat. 437 (codified as amended at 16 U.S.C. [sections] 1539 (1979)).

(218) 50 C.F.R. [sections] 17.11 (1999).

(219) 16 U.S.C. [sections] 1533(b)(1)(A) (1994).

(220) MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 263-64 (3d ed. 1983).

(221) Amending the Endangered Species Act of 1973: Hearing Before the Subcomm. on Resource Protection of the Senate Comm. on Env't and Pub. Works, 95th Cong. 85 (1978).

(222) HAYS, supra note 69, at 60.

(223) WILLIAM GRAF, WILDERNESS PRESERVATION AND THE SAGEBRUSH REBELLION (1990).

(224) Id. at 231 (quoting Ronald Reagan).

(225) Robust Economy and Buyout Boom Highlighted 1983, WALL ST. J., Jan. 2, 1984.

(226) HAYS, supra note 69, at 59-60.

(227) Endangered Species Act Oversight: Hearing Before the Subcomm. on Envtl. Pollution of the Senate Comm. on Env't and Pub. Works, 97th Cong. 53 (1982).

(228) Id.

(229) Id.

(230) Thomas Lovejoy, Biodiversity: What is It?, in BIODIVERSITY II 7 (Marjorie L. Reaka-Kudla et al. eds., 1997); see also Richard Monastersky, The Rise of Life on Earth, 193 NAT'L GEOGRAPHIC, Mar. 1998, at 54.

(231) Edward Wilson, Threats to Biodiversity, SCL AM., Sept. 1989, at 108; see also SCIENCE AND THE ESA, supra note 185, at 71 (1995) (stating that the number of unclassified living species is thought to be from two to ten times the number that have been identified and named).

(232) SCIENCE AND THE ESA, supra note 185, at 5.

(233) Id. at 35.

(234) Wilson, supra note 167.

(235) SCIENCE AND THE ESA, supra note 185.

(236) Id. at 25.

(237) Id. at viii.

(238) Id. at 27-29; see also, Paul Martin, Prehistoric Overkill, in QUATERNARY EXTINCTIONS 354, 354-403 (Paul S. Martin & Richard G. Klein eds., 1984) (arguing that prehistoric human over-hunting contributed significantly to the Pleistocene-Holocene extinctions).

(239) SCIENCE AND THE ESA, supra note 185, at 1.

(240) Id. at 25.

(241) 50 C.F.R. [subsections] 17.11-17.12 (1997).

(242) U.S. Fish and Wildlife Service, Endangered Species Page (visited Mar. 3, 1999) <http:// www.fws.gov/r9endspp/endspp.html>.

(243) F. Stuart Chapin III et al., Biotic Control over the Functioning of Ecosystems, 277 Sci. 500, 500 (1997).

(244) NORMAN MYERS, A WEALTH OF Wind SPECIES 106-07 (1983).

(245) Id.; see also Ruth Patrick, Biodiversity: Why Is it Important?, in BIODIVERSITY II, supra note 230, at 15-24; STEPHEN R. KELLERT, THE VALUE OF LIFE (1996); Alan Randall, What Mainstream Economists Have to Say About the Value of Biodiversity, in BIODIVERSITY 217, 217-23 (Edward Wilson ed., 1988).

(246) ALBERT GORE, EARTH IN THE BALANCE 132 (1992).

(247) Id.

(248) Id. at 129.

(249) Id. at 129-30.

(250) Id. at 139 (1992); see also CAREY FOWLER, FOOD, POLITICS, AND THE Loss OF GENETIC DIVERSITY (1990).

(251) See PAUL EHRLICH, THE SCIENCE OF ECOLOGY (1987); see also Chapin III et al., supra note 243, at 500-03.

(252) HENRY DAVID THOREAU, THE JOURNAL OF HENRY D. THOREAU 221 (1856).

(253) 16 U.S.C. [sections] 1531(a)(3) (1994).

(254) GORE, supra note 246, at 245.

(255) See ENVIRONMENTAL PHILOSOPHY (Michael Zimmerman et al. eds., 1993).

(256) SCIENCE AND THE ESA, supra note 185, at 1.

(257) Id. at 4.

(258) Id.

(259) U.S. Fish & Wildlife Service, Endangered Species Page (visited Mar. 3, 1999) <http:// www.fws.gov/r9endspp/endspp.html>.

(260) Peter Kendall, Eagle Soaring Off Threatened List, CHI. TRIB., May 7, 1998, at 1.

(261) SCIENCE AND THE ESA, supra note 185, at 33.

(262) Jeffrey J. Rachlinski, Noah by the Numbers: An Empirical Evaluation of the Endangered Species Act, 82 CORNELL L. REV. 356, 383 (1997) (book review).

(263) Id.

(264) Joby Warrick, Babbitt Sets Plan to Pare Endangered Species List, WASH. POST, May 6, 1998, at A3.

(265) Id.

SHANNON PETERSEN, Student, Stanford Law School, J.D. expected May 2000; M.A. in history, University of Montana, 1995; B.A. in environmental studies, University of Montana. The author is also a Ph.D. candidate in history, University of Wisconsin, Madison, working under the direction of environmental historians Arthur McEvoy and William Cronon on his Ph.D. dissertation about the ESA. Prior to college, the author served two years as a Russian linguist in the U.S. Navy. He worked last summer with Perkins Coie in Portland and will spend this summer with Perkins Coie in Seattle.