Chapter 9: Conservation in the USA: legislative milestones
Edited by Peter Moyle & Douglas Kelt
By Anne Brasher and Peter Moyle, September 2004
Conservation Biology in the USA has a foundation in many federal (and state) laws that protect wildlife and habitats. The gradual shift in focus of legislation from a narrow spectrum of charismatic and valued vertebrates to nearly all creatures and ecosystems reflects the major changes in knowledge and public attitudes that took place over a roughly 150 year period. Thus. the protective legislation inspired by the wanton destruction of wildlife in the 19th century was the first of a long line of legislative efforts that eventually led to modern endangered species legislation (Table 9.1). In this chapter, we discuss major federal actions in the USA that have given us a broad spectrum of protection, arguably on paper the most extensive protection of wildlife of any country in the world.
Table 9.1 Major federal legislation and actions protecting ecosystems, habitats, and species
1872 Yellowstone National Park founded
1897 Organic Act (Forest Management Act)
1900 Lacey Act
1903 Pelican Island Wildlife Refuge established
1906 Preservation of American Antiquities Act
1911 Fur Seal Treaty
1913 Weeks-McLean Act
1916 Migratory Bird Treaty Act
1916 National Parks Act
1934 Duck Stamp Act
1937 Pittman-Robertson Act
1950 Dingell-Johnson Act
1955 Clean Air Act
1964 Wilderness Act
1966, 1969 Endangered Species Acts
1969 National Environmental Policy Act
1972 Marine Mammal Protection Act
1972 Clean Water Act
1973 Endangered Species Act
1973 Convention on International Trade in Endangered Species
As it became apparent in the late 19th century that relentless exploitation was eliminating wildlife and forests, the first attempts to protect them were made. Yellowstone Park was the first major wild area to be protected by the federal government in good part because it was both still in pristine condition and undeniably spectacular, despite its remoteness. Even it had to be protected from exploitation by the US Army. The first forest reserves were set aside, on paper, by the Organic Act of 1897, which led eventually (through additional legislation) to the founding of the National Forest system. The Lacey Act, sponsored by Representative John F. Lacey of Iowa, was passed by Congress in 1900 as a direct response to public outcry over the slaughter of herons and other birds to furnish plumes for ladies hats. The Lacey Act made interstate transportation of illegally killed game animals a federal offense (see Chapter 2). This effectively curbed market hunting, as the market for the plumes was in the Northeastern states while the birds lived in the Southern states. The Lacey Act also sought to limit importation of exotic wildlife, such as the house sparrow and mongoose whose introductions were detrimental to native wildlife. This law was significant as the first to bring the federal government unequivocally into the business of protecting wildlife. Because of its wide scope, the Lacey Act was supported both by sport hunters and by the increasing number of bird protectionists who were organizing across the country.
As a direct result of the campaign against plume hunting, President Theodore Roosevelt issued an executive order in 1903 declaring a small nesting area in Florida—Pelican Island—as the first federal bird sanctuary. Roosevelt’s order unleashed a flood of nominations of other sites to be protected, and by the end of his first term in 1904, there were 51 wildlife refuges. In 1906, Congress confirmed the President’ authority to set aside areas to protect wildlife and also passed the Preservation of National Antiquities Act, which gave the President power to create National Monuments. Today the National Wildlife Refuge System, originated by Roosevelt, includes almost 450 sites, encompassing nearly 90 million acres in 49 states and 5 trust territories. In California alone there are 32 such refuges. One of the most recent refuges to be established is in the Yolo By-pass, next to Davis (Yolo Basin Wildlife Refuge).
In the 19th and early 20th century, market hunting (large scale shooting of waterfowl for sale) caused major declines in populations of wild ducks and geese. Sport hunters became alarmed at this and began pressing for conservation measures. Federal protection specifically for waterfowl began in 1913 with the Weeks-McLean Act, which established federal control over migratory birds and ended spring waterfowl hunting. This was an important step in protecting breeding birds. The Act allowed the Secretary of Agriculture to set closed seasons when it would be illegal to capture or kill migratory birds. Passage of the Migratory Bird Treaty Act in 1916, signed by the United States and Great Britain, established formal cooperation between the United States and Canada for the protection of both game and nongame birds. In 1937 the Migratory Bird Treaty Act was amended to include Mexico. While this treaty was originally designed to protect waterfowl for sport hunting, a major result was the protection of all other migratory birds.
In 1934 the Duck Stamp Act, passed at request of duck hunters, required all waterfowl hunters to purchase an annual federal stamp. The first Duck Stamps were sold at one dollar each, and a total of 635,000 were sold. Duck Stamps today cost ten dollars each and are bought by stamp collectors as well as hunters. Proceeds from the Duck Stamps are used to protect critical wetlands for breeding, migration stopover, and wintering of waterfowl. The first Duck Stamp was drawn by J. “Ding” Darling, a political cartoonist who frequently focused on environmental issues (Figure 9.1).
Figure 9.1. Cartoons of J “Ding” Darling were a major force in convincing people to protect waterfowl and wetlands.
While market hunting was devastating to many species, sport hunting rarely endangers species and, in fact, provides a good source of revenue for wildlife protection and habitat improvement, as exemplified by the Duck Stamp Act and the Pittman-Robertson Act. The passage in 1937 of the Pittman-Robertson Act, also known as the Federal Aid in Wildlife Restoration Act, created a major source of funds for wildlife restoration by placing a 10% tax on the manufacture of sporting arms and ammunition. Additionally, this act stipulated that all money raised from the sale of hunting licenses must be used for wildlife projects. Prior to the Pittman-Robertson Act, money intended for wildlife conservation often got redirected to fund other local projects such as schools or road repairs.
When federal funds first became available, much of the attention of state wildlife agencies was concentrated on the larger ungulates (hoofed mammals) whose populations had been decimated during the days of market hunting. In the first ten years following the Pittman-Robertson Act, thirty-eight states acquired nearly 900,000 acres of refuges and wildlife management areas. Extensive replantings of trees and grasses were undertaken and massive restocking efforts transplanted deer, pronghorn, elk, mountain goats, and mountain sheep to these restored areas. The Pittman-Robertson Act was so successful that 13 years later the Dingell-Johnson Act of 1950 was modeled after it to generate similar funds for fisheries projects.
THE FUR SEAL TREATY OF 1911
The northern fur seal was nearly exterminated by a century and a half of seal hunting on the Pribolof Islands by Russian, American, Canadian, and British sealers. After the United States purchased Alaska and the Pribolofs from Russia in 1867 there was an attempt to limit harvesting of fur seals, but there was no regulation on the open seas where the hunt continued. In 1911, the Fur Seal Treaty was signed by the United States, Russia, Japan, and Great Britain. The treaty provided protection for fur seals and sea otters on the high seas (outside the 3 mile limit) from the four signatory nations. Each of the countries agreed to prohibit pelagic sealing by its nationals and to manage populations of fur seals within its own territorial waters.
The treaty was upheld until the beginning of WWII when it was terminated by Japan’s entry into the war. From 1942 until 1957 the Pribolof fur seals were protected under a provisional agreement between the United States and Canada. In 1957, the North Pacific Fur Seal Convention was signed by Canada, Japan, Russia, and the United States. This interim treaty, which was similar to the 1911 Fur Seal Treaty, was followed by the Interim Convention on Conservation of North Pacific Fur Seals signed in 1963. These treaties called for intensified research programs and the establishment of a North Pacific Fur Seal Commission to study and make recommendations for management procedures and harvest quotas.
Fur seal populations have benefited from the protection and management provided by these treaties. From a low of about 125,000 in 1911, the population approached its former size of an estimated 2 to 3 million animals (Trefethen 1975). Today less than 2000 animals are harvested each year, entirely by native peoples for subsistence purposes. However, the populations of seals are now threatened by loss of their food supply, because heavy fishing depletes the fish they depend upon.
Figure 9.2 Native American harvest of fur seals; females and pups, Priboloff Islands National Marine Mammal Laboratory, NOAA Fisheries.
THE ENDANGERED SPECIES ACTS OF 1966 and 1969
Although legislation designed to protect birds and game animals has a long history in the United States, the first act specifically focusing on species threatened with extinction was the Endangered Species Act of 1966. This Act was fairly innocuous, simply authorizing the Secretary of the Interior to maintain a list of rare and endangered species. No legal protection or federal aid resulted from the 1966 Act. In 1969, the Endangered Species Conservation Act expanded the original legislation to include all species of vertebrates and some species of invertebrates as well. Importation of endangered species or their products was prohibited, and the addition of foreign species to the United States list was authorized by this legislation. The Endangered Species Act is a landmark in wildlife protection because the legislation was created specifically for the benefit of wildlife rather than for human motives (maintaining populations for sport or future market use, for example).
Figure 9. 3. Examples of endangered species in the United States. Endangered Species Bulletin, USFWS
THE 1973 ENDANGERED SPECIES ACT
Legislation was passed and signed by President Richard Nixon in 1973 that replaced the two previous endangered species laws with a comprehensive and prohibitive policy that went far beyond the earlier versions. Three important things to note about the 1973 Endangered Species Act (ESA) are: 1) the protection of habitat designated as critical to the survival of a species, 2) the inclusion of plants as well as animals as species that can receive federal protection, and 3) the inclusion of subspecies and isolated populations of species regardless of their global status.
In contrast to earlier legislation that provided protection to endangered species only on federal land, the 1973 Endangered Species Act prohibits any taking (a broad term including killing, harming, collecting, trapping, confining, and a whole range of similar activities) of endangered species. The 1973 ESA also extends protection to “almost endangered” species, now referred to as “threatened.” Individual states are permitted to adopt more restrictive legislation.
The 1973 ESA recognizes species as components of ecosystems, and stresses that the integrity of ecosystems must be maintained. The stated purpose of the Act is to protect and enhance populations of endangered species through a variety of conservation steps. These steps include 1) official listing of species as threatened or endangered, 2) prohibition of taking of listed species, 3) acquisition of habitat for listed species, and 4) the development and implementation of recovery plans for listed species. Unfortunately, each of these steps comes with a variety of stumbling blocks that makes the reality of endangered species protection quite different from the theory of the ESA.
According to the 1973 ESA, the Secretary of the Interior is required to establish a list of threatened or endangered species. The criteria for endangerment include any reason—natural or human caused—for the decline of a species. The official status of a species which has undergone a population decline can be divided into three overlapping categories: “endangered,” “threatened,” and “of special concern.” Endangered species are those whose populations have declined to a point where extinction is imminent if action is not taken to protect the species. Threatened species are those whose numbers are declining and are likely to become endangered in the near future if protective action is not taken. Species of special concern are those in decline, or of very limited range, but not known to be faced with extinction in the immediate future.
The process of listing a species may be initiated by any individual, agency, or group by submitting a petition to the Secretary of the Interior. The weight of the supporting evidence supplied by the petitioner is judged by the U.S. Fish and Wildlife Service (USFWS), or if a marine or anadromous species is involved, by the National Marine Fisheries Service (NMFS). Of the 661 species on the endangered and threatened list in 1982, the NMFS had regulatory authority over 14, and the USFWS over the rest. Some criteria for designating a species as threatened or endangered include: 1) habitat destruction, 2) overexploitation, 3) potential eradication due to disease or predation, and 4) inadequate protective regulations.
The formal listing process has four steps. First, a species is nominated for review of its status. The second step is an evaluation of the petition to determine whether it warrants further review. A nomination is then either rejected, which rarely occurs, or is accepted for a second review. This second review is a holding action during which further information is collected and evaluated. This step is often used in controversial cases to slow down the listing process. Third, the agency staff then solicits data and prepares a status report to determine whether a species should be listed, or given a change in status. This report is then evaluated by numerous USFWS offices, and must be approved by each office before further action is taken. The final step in the listing process is a notice of proposed listing which is published in the Federal Register. At least 60 days must be provided for public comment. During this time outside parties can request a public hearing on the proposal. If no further review is required, the species then receives its final listing in the Federal Register.
In theory, listing a species should require a total of 195 to 255 days between the time a petition is received and its final listing in the Federal Register. In practice, listing takes at least two years, sometimes much longer. For many species, the grossly understaffed agencies file a report saying they cannot list the species because they have inadequate time or information to do a proper evaluation.
The 1973 Endangered Species Act mandates that recovery plans be developed for all species listed as endangered. Recovery plans are intended to identify the causes of a species’ decline and to specify actions needed to reverse the decline, including the designation of critical habitats necessary to facilitate their recovery. The ultimate goal of the ESA is the eventual removal of a species from the endangered species list.
During the first 16 years of the Act only 533 species, of more than 3,900 candidates, have actually been listed as threatened or endangered, and only 242 recovery plans were approved (Blair 1989). A mere five species had been de-listed. Two of these species—the brown pelican and the American alligator—have recovered in only parts of their historic range, and the other three species—the Palau dove, Palau fantail, and Palau owl—owe their “recovery” to the discovery of other previously unknown populations, and not to successful recovery efforts. Ten more species have been “down-listed” from endangered to threatened, but for five of these species it was to allow regulated hunting, fishing, or capture, and not because of improvement in their status (Blair 1989). More recent status information is presented in Figure 9.3. Increasingly, species are removed from the list because they have gone extinct.
Interest groups play an important role in the implementation of the ESA. It has been estimated that at least half of the listings since 1973 resulted from the presence of a visible constituency (Tober 1989). Pressure from interest groups has a strong impact on the action taken by the listing agency. In general, if a species is to be put on the protected list, it has to have an advocate within the USFWS or in an environmental or scientific group (Yaffee 1982). When an effective interest group lobbies for a species, it often speeds up the listing process, and may also result in a higher degree of protection for a species than would otherwise have been provided.
TOTAL US ENDANGERED: 985 (388 animals, 597 plants)
TOTAL US THREATENED: 275 (128 animals, 147 plants)
TOTAL US LISTED: 1260 (516 animals***, 744 plants)
* Separate populations of a species listed both as endangered and threatened, are tallied twice. Those species are the argali, leopard, gray wolf, piping plover, roseate tern, chimpanzee, green sea turtle, saltwater crocodile, and olive Ridley sea turtle. For the purpose of the Endangered Species Act, the term ‘species’ can mean a species, subspecies, or distinct vertebrate population. Several entries also represent entire genera or even families.
** There are 446 approved recovery plans. Some recovery plans cover more than one species, and a few species have separate plans covering different parts of their ranges. Recovery plans are drawn up only for listed species that occur in the U.S.
*** Four animals have dual status in the U.S.
Figure 9.3.2 Status report of endangered species in the United States, 1997. From USFWS Endangered Species Update.
The decision to list, or not to list, a species is dependent upon a huge amount of administrative discretion. Although the 1973 ESA states that the values of species to be protected include aesthetic, educational, historical, recreational, and scientific, it is scientific and commercial data that provide the basis for legal protection of a species (Tober 1989). Mathematical models, based upon biological data, are used to predict the future of a species. However, for most endangered species, neither historical nor more recent data exist to adequately describe the basic population biology of the species. Furthermore, an understanding of the species’ role in the ecosystem and its interactions with other species is frequently sketchy, and the impact of human- induced change on it often unknown (Yaffee 1982). Consequently, decisions must be made on the basis of woefully inadequate information. Even seemingly straightforward taxonomic questions, such as: “what makes a species?”, can lead to problems. Grizzly bears, for example, have been reclassified several times. The decision to protect an isolated population of grizzly bears depends upon whether one believes there are eighty-six different subspecies, as some claim, or just two subspecies, as others claim.
The many problems with the ESA have lead to considerable controversy in its reauthorization, which has still not been accomplished as of this writing (1997). The act formally expired in 1992 but has been kept alive by annual congressional appropriations for its continuance. Public opinion polls indicate the ESA is very popular with the American people, who appreciate its success at protecting symbols of the wild such as the bald eagle. However, environmental groups find fault with it because its focus on species makes it too narrow when the problems are so large; a more ecosystem based approach would be preferred. On the other side, some politicians attack the act as interfering with private property rights and economic activity, although such allegations are usually exaggerated. The final revised act that emerges through the reauthorization process is likely to be quite different in many respects from the existing act, for better or worse. A major part of the new act is likely to be a focus on Habitat Conservation Plans.
HABITAT CONSERVATION PLANS
Because the ESA was perceived as seriously interfering with development and use of private lands, in 1982 it was amended to allow the development of Habitat Conservation Plans (HCPs). HCPs are agreements between the federal government and private landowners that allow a landowner to destroy or alter habitat of endangered species in exchange for protecting similar or better habitat elsewhere, or by contributing to a program to restore degraded habitat. HCPs are now being developed at a rapid rate, especially in California. There is widespread agreement that the concept of HCPs is good in that they focus on protecting habitats and can defuse long and expensive court proceedings. They are nevertheless highly controversial because:
- They require long-term decisions on habitat protection to be made using the best available information, which is often very inadequate. HCPs typically are agreements that last 50-100 years.
- They contain a “No Surprises” clause which says that if new information or new endangered species are discovered on the private land covered by the HCP, the landowner is exempt from doing anything about it. If critical habitat for an endangered species is found on private land covered by an HCP, the federal government will have to buy the land, if it wants to save the habitat and the species.
- Most are covered by a “Safe Harbor” policy, which establishes a baseline level for the population of an endangered species on land covered by the HCP. If the numbers rise above the baseline (e.g., by colonization of yet-to-be-developed land), the landowner can remove the “extra” individuals (by transplanting them to another area) without fear of penalty. The purpose of this policy is to eliminate the motivation of landowners to destroy habitats on undeveloped land for fear it will be colonized by an endangered species.
- HCPs are very expensive and time-consuming to set up and monitor. The US Fish and Wildlife Service, the main agency responsible for establishing, monitoring, and enforcing provisions of HCPs, is a small, underfunded agency that does not have the resources for this task.
Perhaps the most ambitious HCP to date is has been established to protect the endangered California gnatcatcher (a bird) and other plants and animals found mainly in Coastal Sage Scrub in southern California. The land this biotic community occupies encompasses areas of five southern California counties and is some of the most valuable real estate in the world. Most of it has been slated for development, to accommodate the sky- rocketing human population of the region. The HCP in this case is being developed through a process established by the state, Natural Community Conservation Planning (fondly known as NCCP). This process has definitely defused the major ESA fight looming between conservationists and developers (although it is highly contentious itself) and is providing protection to some lands that would otherwise be developed. Whether or not the Coastal Sage Scrub community will survive the process is not known, but many regard the likelihood of survival to much higher with the NCCP than without it (Holing 1997).
NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
In 1969 Congress passed the National Environmental Policy Act (NEPA) which requires environmental impact statements (EIS) for all federally funded projects. NEPA directs all federal agencies to prepare an EIS for any federal action that may significantly affect the quality of the human environment. NEPA was designed to insure that information about potential environmental impacts of proposed projects was available to the general public. This marked the beginning of public participation in environmental decision making and provided the impetus for environmental litigation. Ideally, NEPA is intended not only to require evaluation of potential projects but also to encourage critical evaluation of the environmental impacts of possible alternatives. Actual implementation of NEPA has resulted in numerous court cases concerning procedural as well as substantive questions.
NEPA requires that every proposed federal aid project be examined objectively to determine the effects it will have upon the environment. In the first five years of NEPA, federal agencies filed nearly 7000 draft environmental impact statements (Tober 1989). The number of preliminary assessments used to determine the need for the more elaborate analysis of the EIS was many times greater. For example, the Army Corps of Engineers produced approximately 10,000 preliminary assessments in 1975, resulting in 273 environmental impact statements (Tober 1989).
MARINE MAMMAL PROTECTION ACT
The Marine Mammal Protection Act (MMPA) of 1972 was the first national legislation to emphasize the stability of the ecosystem as the primary objective of management. This new law established an indefinite moratorium on the taking of all species of marine mammals, pending review of the status of each by the Secretary of the Interior. The MMPA has established cooperative state-federal research programs with grants to organizations and universities for research into the population status, limiting factors, and general health of all marine mammal populations. Eskimos, Aleuts, and Native Americans are exempted from the taking provision and allowed to obtain meat for subsistence and ivory and hides for traditional cultural uses.
With the Marine Mammal Protection Act, jurisdiction over marine mammals is split between the Commerce and Interior departments. The MMPA also contains provisions for a “depleted” category, which is similar to the threatened category in the Endangered Species Act. Legislation such as the MMPA, NEPA, and the ESA can be seen as beginning to confer basic rights on nonhuman elements of the natural environment (Yaffee 1982). Additionally, passage of the MMPA has provided further international thrust to species protection.
Since the passage of this act, populations of marine mammals have increased rapidly to the delight of the general public. Interestingly fishermen are complaining that the mammals are competing with them for the ever-declining stocks of fish and shellfish. They are also preying on endangered salmon runs. This is leading to major confrontations over enforcement of the act.
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
The Lacey Act of 1900 was the first legislation to restrict international animal trade. However, such activities continued to pose a major threat to wildlife for many decades. First drafted in the mid-1960s, the Convention on International Trade in Endangered Species (CITES) was signed by 87 nations in March 1973, over a year and a half past the date specified in the 1969 ESA. The goal of CITES is to protect the viability and survival of species from threats caused by international trade in those species or in products made from them. Each member nation is required to establish its own agencies to regulate the import and export of endangered or threatened species and to appoint a scientific advisory authority. For participating nations, CITES became effective in 1975. CITES also affects countries which did not choose to sign the treaty, by eliminating the market for illegally obtained species. The signing of CITES also pressured the United States to establish stronger domestic legislation to set an example for other countries, and to develop protocol for implementing such regulations.
CITES, today numbering 102 countries, meets periodically and representatives from member nations decide, among other things, which species should be placed in Appendix I and Appendix II. Appendix I species are considered endangered, and commercial trade is not permitted. Both import and export permits are required. Appendix II species are threatened and could become endangered if trade is not regulated. Export permits are required. A strength of CITES is that the burden of proof is on the exploiter. CITES requires potential exploiters to prove that a species is not endangered before trade in that species will be allowed. CITES has resulted in the fate of many species being played out on the international arena, best known of which is the African elephant.
Estimates of African elephant numbers in 1989 ranged from 550,000 to 700,000, down from 1.5 million just ten years earlier. To satisfy world demand for ivory, an estimated 200 to 300 African elephants were killed every day. A quota system for legal, regulated trade in ivory was authorized in the 1970s by CITES. However, since at least 80% of the world’s ivory trade is believed to occur illegally, the quota system was ineffective. Obviously, the best way to halt the decimation of the elephant populations is to halt the demand for their products.
In June 1989 the United States banned the import of both raw and worked ivory from all countries. This ban is aimed at individual souvenirs purchased abroad by tourists as well as large commercial imports. It will remain in effect at least until adequate sustainable harvest levels are determined and enforceable international ivory trade controls are established. Up until the recent importation ban, the United States imported 10 to 12% of Africa’s annual ivory export for piano keys, jewelry, and trinkets. About 65% of the U.S. imports come from Hong Kong which is the major world ivory dealer and carver. Both the U.S. and Hong Kong are members of CITES. Japan, another member of CITES, is the world’s leading consumer of ivory. In October 1989, CITES moved elephants from Appendix II to Appendix I, resulting in a complete ban on the trade in elephant products. The immediate result has been a 30 to 50% drop in the market value of ivory.
The U.S. ivory moratorium does not prevent sport hunters from importing trophies of African elephants legally taken in the country of origin, providing that the country has a CITES ivory export quota and has issued appropriate export permits. Legal sport hunting has not been a significant factor in the elephant’s decline. Furthermore, the license fees and other expenses associated with legal sport hunting contribute to wildlife management programs and give African countries an additional economic incentive to maintain huntable herds. Interestingly, South Africa and Zimbabwe both have large managed elephant populations, and derive income for wildlife conservation and park management from the sale of ivory.
Figure 9.4. African elephant
Figure 9.5. The Indian rhinoceros is also fading into extinction even though protected by CITES.
The American people are justifiably proud of their record in protecting wild areas and species through governmental action. It is significant that there has been no ground-breaking legislation, however, since the early 1970s, when Republican Richard Nixon was President. Despite the popularity of our parks, monuments, and refuges and despite a public that consistently supports strong environmental laws, there has been a distinct down-turn in protection of endangered species and habitats in the last decade. It is hard to be optimistic when we see enormous economic interests pitted against the under-funded agencies and private organizations dedicated to the salvation of species. Yet progress has been made and at least a few species have been pulled back from the brink of extinction. In the long run, species preservation will depend on us changing our life styles and making sure there continues to be room on this planet for all species.
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