The U.S. Congress passed legislation that provided for the comprehensive conservation of threatened and endangered species of animals and plants. The act strengthened federal regulations to intervene successfully for endangered species—but by the same token, the procedures implemented were often in conflict with human self-interest.
The passage of the Endangered Species Act of 1973 was the culmination of a long history of wildlife-management legislation and a seven-year effort to pass an effective endangered species law. Efforts to protect wildlife began in the 1600’s with colonial regulations. After independence, the earliest conservation laws were enacted by the states to protect game animals and timber. State fish and wildlife services were established beginning in 1865, a development that coincided with a series of U.S. Supreme Court decisions that affirmed state ownership of wildlife.
Federal authority over wildlife was established with the Lacey Act of 1900, which applied to native species, and the Migratory Bird Treaty Act of 1918, which applied to foreign species. Subsequent federal acts and treaties expanded the federal authority over wildlife and its management and conservation. Federal authority dealing specifically with endangered species began with the Endangered Species Preservation Act of 1966
The 1969 act extended protection to foreign species and defined wildlife as any wild mammal, bird, fish, amphibian, reptile, mollusk, or crustacean. The act improved the listing process for endangered species, and it amended the Lacey Act and Black Bass Act to extend their coverage of interstate commerce prohibitions to all wildlife. The federal government’s authority to acquire land for wildlife habitat was expanded, and the importing of foreign endangered species into the United States was prohibited. Perhaps most significant was the international aspect of the new act, which called for endangered species conservation in other countries and an international meeting on the subject. On March 3, 1973, that meeting resulted in an agreement known as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),
The environmental movement rapidly gained strength in the early 1970’s. There was widespread concern about air and water pollution, loss of natural habitats, and increasing numbers of endangered species. As environmental groups continued to proliferate, environmental interests became a powerful force in Congress, conservation and recreation interests began to overpower the interests of hunters, and endangered and nongame wildlife came to be considered as important as game species.
As the environmental movement gained strength, the improvements of the 1969 act began to be considered too limited. Bills to broaden the act were introduced in Congress in 1970, 1971, and 1972, and in 1973 resulted in the enactment of the third and strongest Endangered Species Act (Public Law 93-205). Signed into law on December 28, 1973, by President Richard M. Nixon, the new act, which repealed the two earlier ones, was at the time the most comprehensive endangered species legislation ever passed in any country.
The 1973 act defined wildlife broadly as any animal or plant species, including all native and foreign species, and placed all wildlife within its jurisdiction. In addition to placing species in an endangered category, the act initiated a category for threatened species, so that action could be taken before a situation became irreversible. The act also classified habitats critical for the protection of a species, and it prescribed precisely how a species was to be listed, prohibiting the taking, harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting of listed animals. Other federal agencies were included in the conservation effort, interstate commerce in and the importing of listed species were prohibited, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora was implemented.
In the 1966 act, 78 native species had been listed as endangered. As a result of the broadened authority of the 1973 act, 227 species were listed as threatened and 1,124 as endangered by 1994. Species would continue to be added to the list, and the individual states would develop their own lists of endangered species. By the fall of 2006, 302 species were listed as threatened and 1,009 as endangered.
The 1973 act gave the federal government authority over all animals (both native and foreign and from all taxonomic groups), plants, and critical habitats of animals and plants. The international emphasis on the 1969 act was reinforced, exerting a positive influence on other countries to undertake similar endangered species legislation and to support cooperative conservation treaties.
Although the authority of the 1973 act significantly preempted that of the states to manage and protect their wildlife, the act provided for cooperative agreements whereby the states assumed responsibility for implementing the federal endangered species provisions that applied to them. The federal government, which provided the funding, had veto power over the states’ plans.
In granting the federal government jurisdiction over all protected wildlife, the act provided new federal authority over the private sector, both individuals and businesses. Property owners who have an endangered species on their land can have their activities on that land restricted, thus pitting public rights—that is, the protection of the endangered species on behalf of all Americans—against private rights, those of property owners to develop their property as they wish. Unlike other restrictions of private property rights, for which compensation of some kind was usually provided, the 1973 act provided no compensation for restrictions resulting from the enforced protection of an endangered species or its habitat. Many legal cases ensued during the 1980’s and 1990’s, but that aspect of the law was not modified.
The most significant part of the 1973 act forbade federal agencies to engage in actions that would jeopardize a listed species. This two-sentence section did not attract much attention until the threat to a small fish, the snail darter, brought a stop to the multimillion-dollar Tellico Dam being built by the Tennessee Valley Authority, a federal agency. The enormous construction project was nearing completion when the snail darter was found in the area and classified as endangered. In 1978, the Supreme Court ruled that the dam posed a threat to the snail darter and ordered a halt to the project; the dam was eventually built after the species was transplanted to another stream.
What environmentalists had tried to achieve for more than a decade—the comprehensive protection of endangered species—had become reality. To many, however, the 1973 act had gone too far in protecting wildlife over human interests. Before the end of 1978, Congress had modified the act to allow economic and social values to be considered and balanced along with ecological ones. Congress established the Endangered Species Committee (the so-called God Committee) to hear appeals and be the final authority on disputes such as that between the Tellico Dam and the snail darter’s existence. By 1982, the original two sentences in the 1973 act had become ten pages of new text.
The 1973 act was designed to provide for the total protection of listed species, but its very effectiveness unleashed a backlash of response. The act had strengthened federal regulations to intervene successfully for endangered species—but by the same token, the procedures implemented were often at variance with human self-interest. As a result, interest groups and individuals who were affected responded by organizing in opposition to the environmental interests. The clash of opinions was in stark contrast to the solidarity of environmental opinion that had endorsed the 1966, 1969, and 1973 acts.
Amendments and reauthorization of the 1973 act elicited heated debates, and there were concurrent efforts both to weaken and to strengthen further the 1973 act. The ongoing debate reflected the shifts of national opinion on the merits of attempting to protect endangered species.
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Bean, Michael J., and Melanie J. Rowland. The Evolution of National Wildlife Law. 3d ed. Westport, Conn.: Praeger, 1997. A thorough and comprehensive history and review of wildlife law in the United States, beginning with British law, colonial law, and Indian treaty rights. The endangered species acts, as well as the court cases interpreting them, are examined in detail. -
Clepper, Henry, ed. Origins of American Conservation. New York: Ronald Press, 1966. Reviews the early history of conservation and protection efforts in the United States concerning wildlife, forests, water, soil, range, and parks. A brief but useful and interesting book. -
Czech, Brian, and Paul R. Krausman. The Endangered Species Act: History, Conservation Biology, and Public Policy. Baltimore: The Johns Hopkins University Press, 2001. Offers an in-depth analysis of the act and connects challenges to species conservation and challenges to democracy. -
Goble, Dale D., J. Michael Scott, and Frank W. Davis, eds. The Endangered Species Act at Thirty: Vol. 1—Renewing the Conservation Promise. Washington, D.C.: Island Press, 2005. Focuses on issues surrounding the act, with particular emphasis on its implementation record over the past three decades. -
Littel, Richard. Endangered and Other Protected Species: Federal Law and Regulation. Washington, D.C.: Bureau of National Affairs, 1992. A concise historical review of U.S. wildlife law, as well as a practical handbook for those who need to follow these laws in working with endangered and protected species. -
Lund, Thomas A. American Wildlife Law. Berkeley: University of California Press, 1980. A general, nontechnical discussion and review of English wildlife law used in colonial America, early American wildlife law, the constitutional limits of wildlife law, and state and federal wildlife law. -
U.S. Congress. Senate. Committee on Environment and Public Works. A Legislative History of the Endangered Species Act of 1973, as Amended in 1976, 1977, 1978, 1979, and 1980. Washington, D.C.: U.S. Government Printing Office, 1982. Overview of federal concern for endangered species and historical perspective on federal actions beginning with the 1966 act. Information on the congressional debates, with emphasis on the 1973 act. -
Yaffee, Steven L. Prohibitive Policy: Implementing the Federal Endangered Species Act. Cambridge, Mass.: MIT Press, 1982. A review of preservation and prohibitive policies using the Endangered Species Act as a case study. Includes extensive information on federal endangered species activities before and after the 1966 act.
International Convention Protects Endangered Species
U.S. Supreme Court Protects the Snail Darter
Fossey Is Murdered over Efforts to Protect Mountain Gorillas
International Whaling Ban Goes into Effect
Kenyan President Burns a Fortune in Ivory
Spotted Owl Prompts Old-Growth Timber Controversy
Captive-Bred Condors and Ferrets Are Reintroduced into the Wild
United Nations Bans the Use of Drift Nets
Bald Eagle Is No Longer an Endangered Species