Oh, for the Days of Nixon and Plentiful Beasts

It all seemed so simple back in the early days of the Nixon Administration. Everyone knew from biology class that humans had wiped out entire species, like the dodo bird. But, we were told, these were done by ignorant people of past centuries. Surely, we wouldn't let that to happen again, would we? And with that line of thinking, the Endangered Species Act passed congress, with surprisingly little opposition.

One of the reasons why there was little debate was that many congressmen could hold up their vote for the act as proof that they were environmentalists. They may not have voted for clean air and water, but at least they'd protect those fuzzy little animals. And best of all, voting for the act wouldn't alienate labor unions or businesses.

Now, however, after a generation, the defects of what was passed so hastily are evident. While there are many problems with the Endangered Species Act, I will mention only four, then show how the law has collided with common sense.

First, the law never said how low the numbers of a species must fall before they can be considered endangered. Is it 1,000, 100, 10 or two? Ecologists might say you can't get an exact number, since it depends on the species, their habitat, weather and many other factors. So what we get is a committee that sits in Washington and decrees that the number for Species X is 50. Another committee sitting in Utah might say it is 500. So, who is right? Nobody knows. I do know that the minke whale is considered endangered, although it has an estimated population of about one million.

A second problem is that of subspecies. When the law was passed, Congress thought it was dealing only with species, which are defined in every elementary biology book. But somehow subspecies have become part of the law, as well. For example, consider Gray Bird X, which numbers in the millions. Suppose there is a subspecies of Gray Bird X with black wingtips that is found only in tiny numbers in a Nevada canyon. Should the subspecies be considered endangered, when the species itself is not?

Third, its hard to count animals. Finding the exact numbers of a species is difficult, if not impossible. So decisions have to be made based on iffy statistics.

Fourth, the law is designed to "protect" endangered species. Exactly what does that mean? Giving them enough land and water to live? Sounds reasonable. But suppose small numbers of a hypothetical blue-faced rat were found in New York City. Does this mean New York must be leveled to provide adequate habitats for this subspecies?

The most prominent recent example of the law defying common sense took place in the Klamath Valley in Oregon. There, 1,400 farmers have been denied vital irrigation water to protect the bottom-feeding suckerfish. Losses are estimated to be in the millions of dollars.

Congress back in 1973 was thinking of cuddly creatures like harp seals, or majestic ones like the bald eagle when it passed the Environmental Species Act. Suckerfish--forget it. But the law didn't, and couldn't, since it was drafted so broadly.

Another way in which the ESA was poorly drawn up was in giving private groups so-called legal "standing" to sue the Fish and Wildlife Service (FWS), which oversees implementation of the ESA. In the old days, you had to be given permission to sue the government about a law you didn't like. For example, if I didn't like some provisions of Social Security, I would have to get the government to agree to be sued. Fat chance.

With the ESA, anyone can sue, without asking permission. As a result, the FWS has been deluged with a barrage of lawsuits from environmentalists. The federal agency is now so tied up in court that they don't have the manpower to deal with real endangered species.

There are all sorts of other horror stories. A man in New York State wanted to build a stone wall around his factory to keep the snakes out. The state filed suit. It charged, among other things, that the snakes would be "worried" and "disturbed" by the fence. It isn't enough not to shoot or poison endangered species--we must also look to their psychological well-being.

With all the lawyers we have in Washington, surely someone can come up with a better version of the Endangered Species Act, one that would protect people as well as animals.

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