The Endangered Species Act of 1973 (ESA) is one of the most cherished and reviled laws ever passed. It mandates protection and preservation of all the nation's species and biodiversity, whatever the cost. It has been a lightning rod for controversy and conflicts between industry/business and environmentalists. The year 2023 marks the 50th anniversary of this law, and provides an opportunity for a measured and thorough evaluation thereof. We cannot know today's challenges and opportunities without understanding their histories. This book is the most comprehensive history of the ESA ever published, and the first to consider the entire history of the law from all angles in a single volume. The history of the ESA has been one of increasing impact, complexity, and controversy. In 1978, the Supreme Court declared that Congress intended for the U.S. government to save all species at any cost, and thereafter application of the ESA became steadily more controversial, as seen in the example of the northern spotted owl and the timber wars in the Pacific Northwest in the late 1980s and early 90s, and then everywhere as the ESA became a political football in the highly partisan environment of the late 1990s and amendments to the law ceased. This book is not only a history, but a call to action. It will take more conservation, more funding, and more innovative solutions if we are to save our wildlife and biodiversity. It will take the engagement to every American to muster the collective will to meet this challenge. The hope of this book is that we will be able to look back and say that we accomplished more in the second 50 years of the ESA than we did in the first.
Lowell E. Baier is an attorney and a legal and environmental historian and author. He has worked in Washington, D.C. throughout his fifty-eight-year career as a tireless advocate for natural resources and wildlife conservation. Baier was recognized as the Conservationist of the Year by the National Fish and Wildlife Foundation in 2008, by Outdoor Life Magazine in 2010, and by the Association of Fish and Wildlife Agencies in 2013. In 2016, the National Wildlife Federation awarded him their highest honor, the Jay N. "Ding" Darling Conservation Award for a lifetime of conservation service. He is the author of numerous books, including Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America's Lands, Endangered Species, and Critical Habitats; Saving Species on Private Lands: Unlocking Incentives to Conserve Wildlife and Their Habitats; and Federalism, Preemption, and the Nationalization of American Wildlife Management: The Dynamic Balance Between State and Federal Authority. Baier lives in Bethesda, Maryland.
List of Illustrations Guide to Acronyms and Terms Foreword Prologue: Peril and Promise Dedication Part I: The Evolution of the Endangered Species Act Chapter 1: The Evolution of Wildlife Management and the Extinction Crisis Prior to 1973 Wildlife in Early American History Sportsmen Emerge as the Driving Force for Wildlife Conservation Post-Civil War Views of Wildlife Protective Actions After 1900 The Development of Professional Wildlife Management The Early Days The Leopold Era The American Game Policy of 1930 Education, Funding, and Federal Aid The Evolution Towards Wildlife Protection Wildlife and Environmental Laws from the 1960s to Today 1973: A Watershed Year for Wildlife Management Chapter 2: The Creation of the Endangered Species Act - 1966, 1969 and 1973 The Endangered Species Preservation Act of 1966 The Endangered Species Conservation Act of 1969 Endangered Species Legislation: 1971 Endangered Species Legislation: 1972 The House - 1972 The Senate - 1972 1973 - The House 1973 - The Senate 1973 - Conference Committee and Final Approval Chapter 3: Implementing the Endangered Species Act of 1973: 1974-1980 The Nixon Administration and Passage of the Endangered Species Act The Ford Administration and Implementation of the Endangered Species Act Regulating Threatened Species Implementing Section 6: Cooperation with the States The 1976 Scrimshaw Amendment The Carter Administration and the End of the Environmental Consensus of the 1960s Continuing to Implement the Endangered Species Act Under the Carter Administration The 1977 Section 6 Amendment and an Ominous Congressional Omission The Infamous Tellico Dam and the Snail Darter Congress and the Tellico Dam The Endangered Species Committee Completing the Tellico Dam Further Amendments in 1978 Section 7 Consultation Listing Procedures and Critical Habitat Recovery Plans Other Significant Amendments in 1978 Minor Amendments in 1978 1979: Additional Minor Amendments to the Endangered Species Act The Endangered Species Act at the End of the 1970s. Chapter 4: The Endangered Species Act and the Reagan Administration: Reversals and Progress: 1980-1988 The Reagan Revolution The Reagan Administration in Action The Endangered Species Act Under Reagan 1982: A Second Major Amendment to the Endangered Species Act New Statutory Deadlines for ESA Functions Minor Amendments to Sections 4 and 6 Amendments to Section 7 New Provisions in 1982: Experimental Populations, Habitat Conservation Plans and a Foundation for the Future Experimental Populations Habitat Conservation Plans Endangered Species and International Trade: Implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1979-1982: CITES and the Bobcat Controversy Fleshing out Endangered Species Act Regulations New Tools for Conservation Under Reagan The Reagan Administration and Management of Controversial Species Black-footed Ferrets and California Condors The Reagan Administration and Wolves 1985-1986: Wolf and Predator Management Controversies in Congress 1988: The Last Major Amendment to the ESA Provisions of the 1988 Amendment The Endangered Species Act After Reagan Chapter 5: The Northern Spotted Owl and the George H.W. Bush Administration: 1986-1994 The Northern Spotted Owl George H.W. Bush and Environmental Policy George H.W. Bush and the Endangered Species Act The Northern Spotted Owl and the Timber Wars The Timber Wars Continued - Managing Old-growth Forests and Spotted Owls The Timber Wars Saga - Failures of Planning Partisanship, Radicalization, and Legislative Gridlock 1992: Failure to Reauthorize the Endangered Species Act The 1992 Presidential Election The Northwest Forest Plan The Legacy of the Spotted Owl Chapter 6: The Clinton Administration: Partisanship and Partnership: 1992-2000 The Clinton Administration and the Environment The Endangered Species Act on the Defensive in the 104th Congress The Clinton Administration on the Defensive Improving the Endangered Species Act: "No Surprises" For Habitat Conservation Plans The Ten Point Plan Safe Harbor Agreements Candidate Conservation Agreements with Assurances The Policy for Evaluation of Conservation Efforts When Making Listing Decisions Crisis in the Listing Program: The 1995-1996 Government Shutdown and the Listing Moratorium The 1996 Presidential Election The Sweet Home Case Distinct Population Segments of Vertebrate Species The Clinton Administration and Wolves Improving Application of the Endangered Species Act The ESA in Congress in the Late 1990s The Endangered Species Act at the Turn of the Century Chapter 7: Litigation and Collaboration: The George W. Bush Administration: 2000-2008 The 2000 Presidential Election President George W. Bush and the Environment The Bush Administration's Conservative Approach to Environmental Protection The Bush Administration and Forest Management Conserving Endangered Species Through Cooperation The Threatened and Endangered Species Recovery Act of 2005: Congress' Most Serious Threat to the ESA Critical Habitat on Department of Defense Lands Controversy Surrounding Implementation of the Endangered Species Act Under George W. Bush Listing Species Under the Endangered Species Act Delisting Gray Wolves The Greater Yellowstone Ecosystem Grizzly Bear Listing the Polar Bear The Endangered Species Act in Transition: A Retrospective of the Bush Years Chapter 8: Progress, Reversals, and Uncertainty: Obama, Trump, and Biden: 2008-2021 The 2008 Presidential Election President Barack Obama, Congress, and the Environment The Obama Administration and the Endangered Species Act The Multidistrict Litigation and Listing and Delisting Species The Multidistrict Litigation Settlements and Collaborative Conservation: The Lesser Prairie Chicken Facilitating Collaborative Conservation: The Greater Sage-Grouse Embracing Compensatory Mitigation The Future of the Greater Sage-Grouse Formalizing Species Status Assessments and Conserving Pollinators Improving the Listing Process The "Significant Portion of Its Range" Policy and Other Endangered Species Act Issues The 2016 Presidential Election The Donald J. Trump Administration Environmental Policy Under Trump Revising Greater Sage-Grouse Management Plans Listing and Delisting Species Major Regulatory Changes to the ESA The 2020 Presidential Election The Biden Administration Biden Administration Appointees Biden's Wildlife Policies Fifty Years of Implementing the Endangered Species Act Part II: Contemporary Issues of the Endangered Species Act Chapter 9: Federalism and Preemption: The Nationalization of American Wildlife Management and the Origins of State-Federal Tension Under the Endangered Species Act The Evolution of Federalism and Preemption From the Mayflower Compact to the US Constitution, 1620-1787 Defining the New Government and the Separation of Powers: 1787-1835 Westward Expansion, the First Industrial Revolution, Dual Sovereignty, and the Public Trust Doctrine: 1835-1861 The Civil War, Reconstruction, the Advent of the Second Industrial Revolution, the Enduring Public Trust Doctrine, and State Ownership of Wildlife: 1861-1896 America's Changing Culture: Market Hunting, the Lacey Act, the Migratory Bird Treaty Act, and the Beginning of the Progressive Era: 1896-1910 The Ethos of the Industrial Revolution Drives the Progressive Movement into America's Social Fabric and Laws: 1910-1919 Prohibition and Reform: The Emergence of the Administrative State: 1919-1933 The Great Depression, FDR's New Deal, and a "New" Supreme Court Overwhelms States' Rights: 1933-1941 The Competing Ideologies that Characterized the Progressive Movement and Beyond: 1890-1940 The Stone Court and the Development of the Presumption Against Preemption in Rice: 1941-1946 The End of the State Wildlife Ownership Doctrine Following World War II: 1946-1969 The Burger Court - State Ownership of Wildlife Declared a Legal Fiction and Anachronism: 1969-1986 The Rehnquist Court: A Continued Swing Towards Conservative Federalism and Preemption: 1986-2005 The Roberts Court and the Development of Area-Specific Jurisprudence: 2005-2022 The Future of Federal Preemption of State Authority Over Wildlife, and the Presumption Against Preemption Doctrine in Wildlife Cases The Endangered Species Act of 1973 and Federalism: The Interpretation and Application of Section 6 The Legislative History of Section 6 of the ESA The House Bill - H.R. 37 The States' Role under H.R. 37 as Introduced House Committee Debates and Amendments The Senate Bill - S. 1983 The States' Role Under S. 1983 as Introduced Senate Committee Debates and Amendments Conference Reconciliation and Presidential Approval The Erosion of the States' Cooperative Role 1975 Regulatory Interpretation of Section 6 Section 6 ESA Amendments, 1976-1978 The 1979 Regulatory Interpretation of Section 6 Section 6 ESA Amendments, 1980 - 1982 Section 6 ESA Amendments - 1988 1994 Section 6(a) Policy 2016 Section 6(a) Policy Judicial Interpretation of Section 6 Confusion over the Extent of the ESA's Preemption in 1992 Alaska's Section 6(a) Claim The Future of State and Federal Cooperation and Coordination under the Endangered Species Act Contemporary Challenges for Federalism and State-Federal Cooperation in Wildlife Management Funding Endangered Species Conservation: The Achilles Heel of the ESA Chapter 10: The Constitutional Foundations of the Endangered Species Act The Commerce Clause Principles Nos. 1, 2 and 3: The Substantial Effect, Economic Principle, and Rational Basis Tests Principle No. 4: The De minimis and Aggregation Principle Principle No. 5: Habitat Modification/The Proximate Cause Test Principle No. 6: A Substantial Relationship to the National Interest The Treaty Clause The Spending Clause The Property Clause Chapter 11: Endangered Species Recovery and Delisting: Principles, Application, and Obstacles: Part I - Definitions and State and Private Programs Recovery Under the Endangered Species Act Standards for Recovery and Delisting Early Recovery Planning and Legislative Amendments Contents of a Recovery Plan Recovery in the Courts Case Study: Whooping Crane Recovery: Charting New Waters State and Private Leadership in Recovery Plan Development and Implementation Case Study: The Delmarva Fox Squirrel Case Study: The Kirtland's Warbler Case Study: Private Conservation Efforts: The Peregrine Falcon Case Study: The California Condor Chapter 12: Endangered Species Recovery and Delisting: Principles, Application, and Obstacles: Part II - Federal Programs, Accomplishments, and Challenges Recovery Efforts by Federal Agencies National Wildlife Refuges The National Park Service The U.S. Forest Service and the Bureau of Land Management The Department of Defense The Sikes Act Case Study: The Red-Cockaded Woodpecker Red-Cockaded Woodpeckers and the Department of Defense Additional Woodpecker Conservation Efforts The Readiness and Environmental Protection Integration Program The Sentinel Landscapes Program The Record of Recovery Under the Endangered Species Act Case Studies in Rapid Recovery Case Study: Bald Eagle Case Study: American Alligator Post-Delisting Monitoring Downlisting Recovery Challenges: Inadequate Recovery Funding Case Study: Black-Footed Ferret Recovery Challenges: Inadequate Data and Planning for Recovery Recovery and Ecosystem Conservation Recovery and Delisting of Conservation Reliant Species Recent Progress and Future Prospects for Improvements to Recovery Planning Reflections on Fifty Years of Recovery Chapter 13: Collaborative Conservation: An Alternative to the Endangered Species Act: Part I - Collaborative Conservation Across America Collaborative Conservation Defined Early Collaboration in Conservation Tools of Collaborative Conservation Legal Mechanisms of Collaborative Conservation Farm Bill Funding for Collaborative Conservation Programs and Resources for Landowners Regulatory Certainty for Landowners Under the Endangered Species Act Collaborative Conservation in the Malpai Borderlands Region Collaborative Conservation and Grizzly Bear Recovery The Blackfoot Challenge: Managing Human/Wildlife Conflicts Through Partnership The Louisiana Black Bear The Black Bear Conservation Committee Louisiana Black Bear Conservation Louisiana Black Bear Recovery Innovative Approaches to Protecting Migration Corridors Voluntary Conservation in Maine The Pingree Forest Partnership Katahdin Woods and Waters National Monument The Atlantic Salmon The Downeast Salmon Federation The Downeast Lakes Land Trust The Penobscot River Restoration Trust The Longleaf Forest The Gopher Tortoise Chapter 14: Collaborative Conservation: An Alternative to the Endangered Species Act: Part II - Case Studies and Lessons Learned Greater Sage-Grouse Beginnings of Greater Sage-Grouse Conservation Planning Greater Sage-Grouse Conservation Federal Land Management Planning and Greater Sage-Grouse The Greater Sage-Grouse and Partisan Politics The Natural Resources Conservation Service's Sage Grouse Initiative Other Sage-Grouse Conservation Programs Greater Sage-Grouse Conservation Success The Greater Sage-Grouse's Future The Bi-State Sage-Grouse The Gunnison Sage-Grouse New England Cottontail The New England Cottontail Conservation Strategy New England Cottontail Conservation Partners New England Cottontail Results Forging a Future of Collaboration: Conservation Without Conflict Lessons of Collaborative Conservation The Promise of Collaborative Conservation - A Roadmap for Our Future Chapter 15: Wildlife Conservation and Biodiversity Fifty Years After the Endangered Species Act The Present Crises The Role of the Endangered Species Act Landscape-Scale Conservation The Record of the Endangered Species Act: Successes and Limitations People: The Missing Ingredient in Wildlife Conservation The Endangered Species Act: Funding and Incentives Improving the Endangered Species Act Accessing Funding Increasing Flexibility Enabling Partnerships The Present Opportunity Acknowledgements Appendix 1: Federal Environmental and Consumer-Protection Statutes and Agencies Established during the 1960s and 1970s Green Revolution Appendix 2: The Endangered Species Act of 1973, As Enacted Appendix 3: The Endangered Species Act of 1973, As Amended Today Bibliography Index
