Volume 12, Issue 13 ~ March 25-31, 2004

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by Steve Carr

We Species Stand on Shaky Ground

The Endangered Species Act has come under fire lately from all directions. Established in the early 1970s, the act remains the cornerstone of our modern environmental regulations, propping up virtually every green law on the books. So what’s the problem here? Who could be against saving an animal or plant from extinction?

Like everything else in our lives these days, this is a complicated issue with many twists and turns. A one-size-fits-all federal regulation was bound to run into trouble eventually. After being on the books for three decades, there have been some victories and a few glaring embarrassments.

There are currently 1,260 animals and plants on the list of protected species. Every time someone proposes to construct a house or commercial building, to mine for some mineral, to cut forest land or generally muck about the landscape, the folks from the Fish and Wildlife Service and their counterparts at the state level are there to make sure the activity will not undermine any threatened species. Most of the time this isn’t a problem. But when one of those endangered species pops up on a development site, all hell breaks loose.

Poster Kids for Property Rights
Recently two high-profile lawsuits were filed against the federal government for its enforcement of the Endangered Species Act. The first involved the construction of a much-needed hospital in San Bernardino County, California. When the county went to get its permits for the project, an endangered insect called the Delhi sands fly was found. The fly is a big fan of the many wild flowers that bloom in that area, so the Feds stopped the project cold. A few million dollars later, the courts ruled that the permit could be granted under certain strict provisions.

The second case slowly working its way toward the Supreme Court involves the tiny Southwestern arroyo toad, which is holding up the Rancho Viejo subdivision of 280 homes near San Diego.

The Delhi fly and the arroyo toad have quickly become the poster children for the property rights folks who maintain the Endangered Species Act is out of control and needs to be reined in. Several Congressional committees are studying the Endangered Species Act to determine how best to fix it so that tiny bugs and forgotten little plants don’t get in the way of business and property rights.

The courts haven’t been much help in clarifying the issue; various rulings from around the country have sent mixed messages. What’s really crazy about all this fighting and litigation is how the courts have ultimately framed the legal issue.

As you may or may not know, all legal roads lead to our beloved Constitution. Alas, our Founding Fathers were woefully silent when it came to protecting endangered species. There isn’t a mention of the concept in the Constitution. So, a few years after Congress passed the Endangered Species Act, riled-up property owners began suing the federal government. The courts were forced to figure out what part of the Constitution might have legal jurisdiction over this matter.

I got out my pocket edition of the U.S. Constitution the other day to look for a legal peg on which to hang the Species Act. The only place I could find it was the clause in the Preamble that says the government has the right to “Promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”

Before you laugh at my approach, here’s what the best legal minds in our country came up with. They settled on the Commerce Clause in Section Eight of the Constitution, where it says that the federal government has the right to “Regulate commerce with foreign nations and among the several states, and with Indian tribes.” Go figure.

Endangered Among Us
Closer to home, the state of Maryland and Anne Arundel County list 109 plants and 19 animals on their Rare, Threatened and Endangered Species List. Most of these animals are not household names. They fall into three categories: bugs; birds; amphibians, fish, reptiles. The bugs include a butterfly, beetle, moth and amphipod. Amphibians, fish and reptiles include a darter, several snakes, a turtle and a salamander. The birds include a few better-known critters: peregrine falcon, common moorhen, sora rail and least tern.

The presence of one of these animals or plants can stop a development project dead in its tracks. You would think that would be a good thing. But what I discovered as I looked more closely at this tricky issue is that saving a species is anything but simple or clear cut.

First off, the state and federal governments have their own floating scales to determine how badly an endangered species is doing. The state ranking system goes from the most critical level, which they refer to as Highly State Rare, down the line to State Rare, Rare to Uncommon, Actively Tracked, Apparently Secure, Demonstrably Secure, Accidental, Established but Not Native and on and on. You have to ring the first two bells to stop a project.

Even more confusing, the state also lists each species by its status, starting with Endangered, In Need of Conservation, Threatened, Extirpated, Proposed Endangered, Proposed Threatened and blah, blah, blah. No wonder folks have trouble relating to this stuff.

On the website for the Maryland Natural Heritage Program, I sought inspiration from the folks whose job it is to catalogue and protect Maryland’s endangered species. I discovered there that Maryland is referred to as “America in miniature.” Maryland is the place where north meets south. Throw in the Appalachian Mountains, farmlands of the coastal plain and the marshy tidewater regions of the Delmarva Peninsula, and you have a smorgasbord of life. We are a unique place with an abundance of plant and animal life worth preserving.

Who Can Love a Fly?
Unfortunately, several dark themes percolate out of the current debate surrounding the Endangered Species Act.

The first is that saving endangered plants and animals shouldn’t get in the way of making money. And let’s face it, when it’s a snail darter against a dam, or a sand fly against a hospital, it isn’t a fair fight. Average Americans are going to roll their eyes.

Which brings us to the most troubling aspect of this debate, and that is our tendency to like the warm and fuzzy mammals more than the those anonymous insects and reptiles. No one, for instance, is suggesting that we shouldn’t save the grizzly bear or the bald eagle. But when the state holds up a project to protect the Northern pike snake or the map turtle, folks are less inclined to get behind the program.

Our willingness to save animals around the Bay is directly related to whether or not we can eat them. The same reasoning is at work here. Big critters are worth saving, but maybe we can do without some of the smaller ones.

This is an insidious notion because the web of life is just that. Small animals get eaten by the bigger ones and right on up the food chain until you arrive at the key predators: lions, tigers and bears. When we lose some obscure species, it has an unpredictable ripple effect that can weaken the whole web. What’s more, the loss of a single species in a particular area is often linked to some subtle environmental degradation. Like the canary in the coal mine, the loss of the spotfin killifish can be a harbinger of doom for the fish we do care about, like rockfish.

Species go extinct on this planet every day. Sometimes it’s because of something we humans did, and other times it’s just because a particular plant or animal was ill-equipped to deal with the harshness of life. Adapt or die has been the unbending rule of evolution since life first crawled out of the primordial ooze. Scientists believe there are vanishing species in the wilds of the rainforests and at the bottom of the oceans that we have never seen and that will go extinct without a helping human hand. So be it.

I leave you with this thought. Humans are an infinitesimal part of our solar system. In the galactic scheme of things, it would be hard to argue that we matter more than any other species. We have only been around for a blip on the cosmic radar screen, and in that time we haven’t done much to make the world a better place.

So if some alien species were to land tomorrow and announce a hair-brained plan that involved mining the entire surface of every continent for, let’s say, sand and gravel, and that to do so would mean the end to human life, would these alien entrepreneurs be correct in concluding that the loss of humans wouldn’t matter in the overall running of the universe?

Yeah, probably. But not to us. I’m guessing the redbelly water snake and eastern tiger salamander probably feel the same way.

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Last updated March 25, 2004 @ 2:37am.