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 sixty-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.

Baier offers thorough, richly illustrated accounts of crises of conservation throughout American history, from the bison to the bald eagle, and up-close surveys of what it took to get the law (and its less-sweeping predecessors) passed, implemented, and on-occasion amended. Original interviews supplement a wealth of sources as Baier pays welcome attention to the shifting cultural and political contexts of the last 50 years, from surprises like “Hardship Safaris” game hunters took to bag endangered game before the law went into effect, to the continuing conflicts between developers and endangered species that have fueled outrage and litigation ever since: the snail darter fish, the spotted owl, and wolves, among others. Baier’s history will appeal to readers of environmental and policy history, of course, but its sweep, depth, authority, clarity, and engaging prose mean it should likewise command the attention of anyone eager to understand contemporary America itself, especially the complex question of what the nation values. Case studies and a federalist “road map” for the future—"smaller stick, a larger carrot, and a more balanced endangered species program”—is as illuminating as the narrative history.

• List of IllustrationsGuide to Acronyms and TermsForewordPrologue: Peril and PromiseDedicationPart I: The Evolution of the Endangered Species ActChapter 1: The Evolution of Wildlife Management and the Extinction Crisis Prior to 1973Wildlife in Early American HistorySportsmen Emerge as the Driving Force for Wildlife ConservationPost-Civil War Views of WildlifeProtective Actions After 1900The Development of Professional Wildlife ManagementThe Early DaysThe Leopold EraThe American Game Policy of 1930Education, Funding, and Federal AidThe Evolution Towards Wildlife ProtectionWildlife and Environmental Laws from the 1960s to Today1973: A Watershed Year for Wildlife ManagementChapter 2: The Creation of the Endangered Species Act – 1966, 1969 and 1973The Endangered Species Preservation Act of 1966The Endangered Species Conservation Act of 1969Endangered Species Legislation: 1971Endangered Species Legislation: 1972The House – 1972The Senate – 19721973 – The House1973 – The Senate1973 – Conference Committee and Final ApprovalChapter 3: Implementing the Endangered Species Act of 1973: 1974–1980The Nixon Administration and Passage of the Endangered Species ActThe Ford Administration and Implementation of the Endangered Species ActRegulating Threatened SpeciesImplementing Section 6: Cooperation with the StatesThe 1976 Scrimshaw AmendmentThe Carter Administration and the End of the Environmental Consensus of the 1960sContinuing to Implement the Endangered Species Act Under the Carter AdministrationThe 1977 Section 6 Amendment and an Ominous Congressional OmissionThe Infamous Tellico Dam and the Snail DarterCongress and the Tellico DamThe Endangered Species CommitteeCompleting the Tellico DamFurther Amendments in 1978Section 7 ConsultationListing Procedures and Critical HabitatRecovery PlansOther Significant Amendments in 1978Minor Amendments in 19781979: Additional Minor Amendments to the Endangered Species ActThe Endangered Species Act at the End of the 1970s.Chapter 4: The Endangered Species Act and the Reagan Administration: Reversals and Progress: 1980-1988The Reagan RevolutionThe Reagan Administration in ActionThe Endangered Species Act Under Reagan1982: A Second Major Amendment to the Endangered Species ActNew Statutory Deadlines for ESA FunctionsMinor Amendments to Sections 4 and 6Amendments to Section 7New Provisions in 1982: Experimental Populations, Habitat Conservation Plans and a Foundation for the FutureExperimental PopulationsHabitat Conservation PlansEndangered Species and International Trade: Implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora1979-1982: CITES and the Bobcat ControversyFleshing out Endangered Species Act RegulationsNew Tools for Conservation Under ReaganThe Reagan Administration and Management of Controversial SpeciesBlack-footed Ferrets and California CondorsThe Reagan Administration and Wolves1985-1986: Wolf and Predator Management Controversies in Congress1988: The Last Major Amendment to the ESAProvisions of the 1988 AmendmentThe Endangered Species Act After ReaganChapter 5: The Northern Spotted Owl and the George H.W. Bush Administration: 1986-1994The Northern Spotted OwlGeorge H.W. Bush and Environmental PolicyGeorge H.W. Bush and the Endangered Species ActThe Northern Spotted Owl and the Timber WarsThe Timber Wars Continued – Managing Old-growth Forests and Spotted OwlsThe Timber Wars Saga – Failures of PlanningPartisanship, Radicalization, and Legislative Gridlock1992: Failure to Reauthorize the Endangered Species ActThe 1992 Presidential ElectionThe Northwest Forest PlanThe Legacy of the Spotted OwlChapter 6: The Clinton Administration: Partisanship and Partnership: 1992-2000The Clinton Administration and the EnvironmentThe Endangered Species Act on the Defensive in the 104th CongressThe Clinton Administration on the DefensiveImproving the Endangered Species Act: “No Surprises” For Habitat Conservation PlansThe Ten Point PlanSafe Harbor AgreementsCandidate Conservation Agreements with AssurancesThe Policy for Evaluation of Conservation Efforts When Making Listing DecisionsCrisis in the Listing Program: The 1995-1996 Government Shutdown and the Listing MoratoriumThe 1996 Presidential ElectionThe Sweet Home CaseDistinct Population Segments of Vertebrate SpeciesThe Clinton Administration and WolvesImproving Application of the Endangered Species ActThe ESA in Congress in the Late 1990sThe Endangered Species Act at the Turn of the CenturyChapter 7: Litigation and Collaboration: The George W. Bush Administration: 2000-2008The 2000 Presidential ElectionPresident George W. Bush and the EnvironmentThe Bush Administration’s Conservative Approach to Environmental ProtectionThe Bush Administration and Forest ManagementConserving Endangered Species Through CooperationThe Threatened and Endangered Species Recovery Act of 2005: Congress’ Most Serious Threat to the ESACritical Habitat on Department of Defense LandsControversy Surrounding Implementation of the Endangered Species Act Under George W. BushListing Species Under the Endangered Species ActDelisting Gray WolvesThe Greater Yellowstone Ecosystem Grizzly BearListing the Polar BearThe Endangered Species Act in Transition: A Retrospective of the Bush YearsChapter 8: Progress, Reversals, and Uncertainty: Obama, Trump, and Biden: 2008-2021The 2008 Presidential ElectionPresident Barack Obama, Congress, and the EnvironmentThe Obama Administration and the Endangered Species ActThe Multidistrict Litigation and Listing and Delisting SpeciesThe Multidistrict Litigation Settlements and Collaborative Conservation: The Lesser Prairie ChickenFacilitating Collaborative Conservation: The Greater Sage-GrouseEmbracing Compensatory MitigationThe Future of the Greater Sage-GrouseFormalizing Species Status Assessments and Conserving PollinatorsImproving the Listing ProcessThe “Significant Portion of Its Range” Policy and Other Endangered Species Act IssuesThe 2016 Presidential ElectionThe Donald J. Trump AdministrationEnvironmental Policy Under TrumpRevising Greater Sage-Grouse Management PlansListing and Delisting SpeciesMajor Regulatory Changes to the ESAThe 2020 Presidential ElectionThe Biden AdministrationBiden Administration AppointeesBiden’s Wildlife PoliciesFifty Years of Implementing the Endangered Species ActPart II: Contemporary Issues of the Endangered Species ActChapter 9: Federalism and Preemption: The Nationalization of American Wildlife Management and the Origins of State-Federal Tension Under the Endangered Species ActThe Evolution of Federalism and PreemptionFrom the Mayflower Compact to the US Constitution, 1620-1787Defining the New Government and the Separation of Powers: 1787-1835Westward Expansion, the First Industrial Revolution, Dual Sovereignty, and the Public Trust Doctrine: 1835-1861The Civil War, Reconstruction, the Advent of the Second Industrial Revolution, the Enduring Public Trust Doctrine, and State Ownership of Wildlife: 1861-1896America’s Changing Culture: Market Hunting, the Lacey Act, the Migratory Bird Treaty Act, and the Beginning of the Progressive Era: 1896-1910The Ethos of the Industrial Revolution Drives the Progressive Movement into America’s Social Fabric and Laws: 1910-1919Prohibition and Reform: The Emergence of the Administrative State: 1919-1933The Great Depression, FDR’s New Deal, and a “New” Supreme Court Overwhelms States’ Rights: 1933-1941The Competing Ideologies that Characterized the Progressive Movement and Beyond: 1890-1940The Stone Court and the Development of the Presumption Against Preemption in Rice: 1941-1946The End of the State Wildlife Ownership Doctrine Following World War II: 1946-1969The Burger Court – State Ownership of Wildlife Declared a Legal Fiction and Anachronism: 1969-1986The Rehnquist Court: A Continued Swing Towards Conservative Federalism and Preemption: 1986-2005The Roberts Court and the Development of Area-Specific Jurisprudence: 2005-2022The Future of Federal Preemption of State Authority Over Wildlife, and the Presumption Against Preemption Doctrine in Wildlife CasesThe Endangered Species Act of 1973 and Federalism: The Interpretation and Application of Section 6The Legislative History of Section 6 of the ESAThe House Bill – H.R. 37The States’ Role under H.R. 37 as IntroducedHouse Committee Debates and AmendmentsThe Senate Bill – S. 1983The States’ Role Under S. 1983 as IntroducedSenate Committee Debates and AmendmentsConference Reconciliation and Presidential ApprovalThe Erosion of the States’ Cooperative Role1975 Regulatory Interpretation of Section 6Section 6 ESA Amendments, 1976-1978The 1979 Regulatory Interpretation of Section 6Section 6 ESA Amendments, 1980 – 1982Section 6 ESA Amendments – 19881994 Section 6(a) Policy2016 Section 6(a) PolicyJudicial Interpretation of Section 6Confusion over the Extent of the ESA’s Preemption in 1992Alaska’s Section 6(a) ClaimThe Future of State and Federal Cooperation and Coordination under the Endangered Species ActContemporary Challenges for Federalism and State-Federal Cooperation in Wildlife ManagementFunding Endangered Species Conservation: The Achilles Heel of the ESAChapter 10: The Constitutional Foundations of the Endangered Species ActThe Commerce ClausePrinciples Nos. 1, 2 and 3: The Substantial Effect, Economic Principle, and Rational Basis Tests Principle No. 4: The De minimis and Aggregation PrinciplePrinciple No. 5: Habitat Modification/The Proximate Cause Test Principle No. 6: A Substantial Relationship to the National InterestThe Treaty ClauseThe Spending ClauseThe Property ClauseChapter 11: Endangered Species Recovery and Delisting: Principles, Application, and Obstacles: Part I – Definitions and State and Private ProgramsRecovery Under the Endangered Species ActStandards for Recovery and DelistingEarly Recovery Planning and Legislative AmendmentsContents of a Recovery PlanRecovery in the CourtsCase Study: Whooping Crane Recovery: Charting New WatersState and Private Leadership in Recovery Plan Development and ImplementationCase Study: The Delmarva Fox SquirrelCase Study: The Kirtland’s WarblerCase Study: Private Conservation Efforts: The Peregrine FalconCase Study: The California CondorChapter 12: Endangered Species Recovery and Delisting: Principles, Application, and Obstacles: Part II – Federal Programs, Accomplishments, and ChallengesRecovery Efforts by Federal AgenciesNational Wildlife RefugesThe National Park ServiceThe U.S. Forest Service and the Bureau of Land ManagementThe Department of DefenseThe Sikes ActCase Study: The Red-Cockaded WoodpeckerRed-Cockaded Woodpeckers and the Department of DefenseAdditional Woodpecker Conservation EffortsThe Readiness and Environmental Protection Integration ProgramThe Sentinel Landscapes ProgramThe Record of Recovery Under the Endangered Species ActCase Studies in Rapid RecoveryCase Study: Bald EagleCase Study: American AlligatorPost-Delisting MonitoringDownlistingRecovery Challenges: Inadequate Recovery FundingCase Study: Black-Footed FerretRecovery Challenges: Inadequate Data and Planning for RecoveryRecovery and Ecosystem ConservationRecovery and Delisting of Conservation Reliant SpeciesRecent Progress and Future Prospects for Improvements to Recovery PlanningReflections on Fifty Years of RecoveryChapter 13: Collaborative Conservation: An Alternative to the Endangered Species Act: Part I – Collaborative Conservation Across AmericaCollaborative Conservation DefinedEarly Collaboration in ConservationTools of Collaborative ConservationLegal Mechanisms of Collaborative ConservationFarm Bill Funding for Collaborative ConservationPrograms and Resources for LandownersRegulatory Certainty for Landowners Under the Endangered Species ActCollaborative Conservation in the Malpai Borderlands RegionCollaborative Conservation and Grizzly Bear RecoveryThe Blackfoot Challenge: Managing Human/Wildlife Conflicts Through PartnershipThe Louisiana Black BearThe Black Bear Conservation CommitteeLouisiana Black Bear ConservationLouisiana Black Bear RecoveryInnovative Approaches to Protecting Migration CorridorsVoluntary Conservation in MaineThe Pingree Forest PartnershipKatahdin Woods and Waters National MonumentThe Atlantic SalmonThe Downeast Salmon FederationThe Downeast Lakes Land TrustThe Penobscot River Restoration TrustThe Longleaf ForestThe Gopher TortoiseChapter 14: Collaborative Conservation: An Alternative to the Endangered Species Act: Part II – Case Studies and Lessons LearnedGreater Sage-GrouseBeginnings of Greater Sage-Grouse ConservationPlanning Greater Sage-Grouse ConservationFederal Land Management Planning and Greater Sage-GrouseThe Greater Sage-Grouse and Partisan PoliticsThe Natural Resources Conservation Service’s Sage Grouse InitiativeOther Sage-Grouse Conservation ProgramsGreater Sage-Grouse Conservation SuccessThe Greater Sage-Grouse’s FutureThe Bi-State Sage-GrouseThe Gunnison Sage-GrouseNew England CottontailThe New England Cottontail Conservation StrategyNew England Cottontail Conservation PartnersNew England Cottontail ResultsForging a Future of Collaboration: Conservation Without ConflictLessons of Collaborative ConservationThe Promise of Collaborative Conservation – A Roadmap for Our FutureChapter 15: Wildlife Conservation and Biodiversity Fifty Years After the Endangered Species ActThe Present CrisesThe Role of the Endangered Species ActLandscape-Scale ConservationThe Record of the Endangered Species Act: Successes and LimitationsPeople: The Missing Ingredient in Wildlife ConservationThe Endangered Species Act: Funding and IncentivesImproving the Endangered Species ActAccessing FundingIncreasing FlexibilityEnabling PartnershipsThe Present OpportunityAcknowledgementsAppendix 1: Federal Environmental and Consumer-Protection Statutes and Agencies Established during the 1960s and 1970s Green RevolutionAppendix 2: The Endangered Species Act of 1973, As EnactedAppendix 3: The Endangered Species Act of 1973, As Amended TodayBibliography Index