The Codex of the Endangered Species Act

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