Wildlife
CHAPTER FOUR
"The possibility of a healthy relationship between people and the rest of the natural world has been steadily pulled apart."
The Land Report
The Land Report
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For the most part, the laws and regulations governing wildlife treat animals, birds and fish as harvestable resources, much like trees: you can only take so much at one time, leaving just enough to continue the reproduction process.
The following acts have been significant in federal wildlife legislation:
Many authorities believe the most far-reaching legislation protecting wildlife and habitat has been the federal Endangered Species Act of 1973 (ESA). Though more than 20 years old, this legislation remains controversial.
In enacting the Endangered Species Act, Congress addressed the question of why we should spend money to save non-human species. In the preamble to the ESA, Congress stated that "species of fish, wildlife and plants are of aesthetic, ecological, educational, historical, recreational and scientific value to the Nation and its people."(3) Scientists, conservationists and others concerned with the disappearance of wildlife have argued that all living things are part of a web in which each living creature plays a vital role: the loss of one can be detrimental to the whole. Moreover, conservationists and others agree that the smallest creature - even a slug - could benefit mankind by yielding scientific knowledge, even cures for diseases. They point out that it was a fungus that produced penicillin, the bark of the Yew tree holds a possible cure for some forms of cancer, and an Asian viper might contain a stroke prevention medicine. Plants and small creatures also benefit agriculture: farmers use insects, plants and other animals as alternatives to synthetic chemicals for pest and predator control. Aside from these utilitarian and anthropocentric reasons to preserve earth's species, many believe that every creature has intrinsic value and a right to live no matter what its relationship to humankind or its economic value.
In the United States about 10 percent of the major medical drugs used today have as the primary active ingredient a compound still extracted from plants, and more than 25 percent of our common medicines contain at least some compounds obtained from plants. Source: Simpson, Beryl Brintall and Molly Conner
Orogzaly, Economic Botany: Plants in Our World, 2nd edition. (New York: McGraw-Hill, Inc., 1995), 376.
The key elements of the Endangered Species Act are:
In addition to listing species as "endangered" or "threatened," the U.S. Fish and Wildlife Service can also designate critical habitats, that is, habitat necessary to recover the endangered species. "Critical habitat consists of those areas of land, water, and air space that an endangered or threatened species needs to survive and recover. Critical habitat may be one or more large geographic areas, or just a small area depending on the needs and distribution of the species."(5) There are a number of steps the Service must take before a critical habitat designation is made: 1) wildlife biologists identify the areas of importance to the species; 2) the Service analyzes the economic and other impacts of designating the area as a critical habitat; 3) the Service prepares a list of proposed areas and publishes it in the Federal Register and formally notifies federal, state and county governments and citizens seeking their comments; 4) after the public review period, the Service makes necessary changes; and, finally, 5) the Service officially designates the critical habitat.
Designating a critical habitat has two dominant impacts. Federal agencies must consult with the Fish and Wildlife Service if any of their activities affect the critical habitat, such as building a highway or reservoir. Because the Endangered Species Act prevents any federal action that adversely affects critical habitat, the activity contemplated might have to be altered. The same holds true for any activity or project that requires a federal permit or involves federal funding. The second impact is to make people aware that the area is important to the survival of an endangered species.
"Designation of critical habitat does not provide for federal government review of private land use, unless the landowner is planning a project that requires a federal permit or uses federal funds." (6) However, the protection afforded the "taking" of an endangered species under the Endangered Species Act are not changed by the designation of critical habitat.
Though the permitting process has been available since 1982, the first permit was not issued in Texas until 1992. Because of population growth patterns and the location of endangered species and critical habitats in Central Texas, the USFWS located in Austin is the only Texas office that has furnished incidental-taking permits. It has not denied any request for incidental-taking permits, though all the permits require some form of mitigation activities.
Source: U.S. Fish and Wildlife Service, Austin: June 1995.
Relying on English common law, the federal Endangered Species Act has treated plant species as different from wildlife. Plants are considered to be a part of the real estate on which they grow, and thus they are legally treated as a part of private property. Animals, however, are part of the public trust and not owned by the property owner.
The Endangered Species Act has received its share of criticism from both environmentalists and landowners. Environmentalists claim that high profile species (what some call the "charismatic megafauna" or the "cuddly factor"), such as the bald eagle and grizzly bear, receive disproportionate funding for recovery while plants and invertebrates disappear. Some ESA detractors also suggest the Act is a crisis-based approach to species protection because it was designed to save species already on the verge of extinction, rather than foster a strategy that protects habitat. According to these critics, habitat or ecosystem management would provide a preventive approach to species protection. Meanwhile, others worry that the population of a species gets fundamentally reduced while the species waits to be listed as endangered. For example, the golden-cheeked warbler was identified as endangered in 1976 but was not listed by the Service until 1990. Others note that the Endangered Species Act has been more successful in recovery of species on public lands than on private lands. In the United States, 51 percent of endangered and threatened species are found on private lands.
Some private landowners, who in Texas own approximately 97 percent of the land, argue that the Endangered Species Act has burdened them with the major responsibility of protecting endangered species without any compensation. These landowners claim that the Endangered Species Act lowers property values, and because of a cumbersome permit process, their ability to sell their property is hindered. Some private landowners further assert that the ESA is an assault on the Fifth Amendment private property right.(7) Farmers and ranchers who oppose the ESA claim they have been the best stewards of the land and can manage it in an ecologically sound manner without federal guidance.
Regrettably, in Texas and elsewhere, the Endangered Species Act has become the target for special interest debate when in fact, it should be, as one adherent stated, "a common interest debate."(8) Both landowners and conservationists do seem to agree that species - not just endangered species - and habitat protection is important and cannot be achieved solely through government regulations. In Texas and across the country, states, municipalities, conservation groups, and landowners are proceeding to fashion new cooperative approaches and economic incentives for wildlife and habitat protection that address the concerns of both conservationists and landowners. Because 95 percent of the land in the United States (97 percent in Texas) is privately held, most approaches consider the interests of private landowners in preserving wildlife habitat. For example, the U.S. Fish and Wildlife Service and Texas Parks and Wildlife Department have programs that provide rural landowners with technical assistance on how to preserve wetlands and enhance other types of wildlife habitats. These ideas will be discussed later in this section.(9)
*Note: Developed areas include rural, residential and industrial areas.
Source: World Resources Institute, The 1994 Information Please Environmental Almanac. From Curtis H. Flather, Linda A. Joyce and Carol A. Bloomgarden, Species Endangerment Patterns in the United States (USDA Forest Service, General Technical Report RM-100, December 31, 1992), Table 5, n.p.
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