Protecting the Vulnerable Thanks To The Endangered Species Act: With Guest Lowell Baier

Lowell Baier, author of The Codex of the Endangered Species Act (Vol I: The First Fifty Years and Vol 2. The Next Fifty Years) joins us to break down what exactly The Endangered Species Act is, how it has helped protected endangered species the past fifty years, and how we can look ahead and protect our environment for the next few decades.

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Episode Transcript

(00:11):
Face Palm America. I'm Beowulf Rockland. Facepalmamerica dot com is where you can
get more information about the show,listen to past episodes, and connect with
us on social media. Fifty yearsago this year, the Endangered Species Act
was passed. It, for mygeneration, has served as the background of

(00:34):
so many environmental struggles and fights overthe years. It seems like it has
always been around, but it gothere, and it has evolved over the
course of its existence in a veryparticular and a very important set of ways.
And I think we need to discussit because the fate of our natural

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environment and our endangered species could dependon it. We're speaking today with loll
Bear. He is the author ofthe Codex of the Endangered Species Act,
the First fifty Years, Volume one. It's a history of the Act.
Mister Bear has been an advisor toevery successive presidential administration since George H.

(01:17):
W. Bush, and has beenan active and instrumental member of several national
conservation groups. Low Bear, Welcometo Face Palm America. Thank you so
much for being here today. ButI look forward to our discussion. So
I know that you are thoroughly immersedin this but for folks like myself who

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didn't live through it. What werethe circumstances in the early nineteen seventies that
led to the passage of the EndangeredSpecies Act. The extent of extinction of
species had been accelerating. The firstAct was the very small Act that was

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packed passed in nineteen sixty six.It was amended in nineteen sixty nine,
and the trajectory of extinctions of bothanimals as well as plants was increasingly rising,
and so the Congress with the publicand the Congress took, you know,

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took recognition of this problem and beganto deal with it. The prominent
species in the seventy two and seventythree period that led up to the enactment
of the seventy three Act were whales, especially right whales, Elephants in our

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own country, Condors, grizzly bears, polar bears, and a variety of
species were notable, especially to thepublic, and they began to speak out
about this. Now, this wasa period that the sixties and seventies,
you must appreciate, were a periodof environmental awareness that this country has never

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seen before, and it was reallypaying attention for what was going on in
the world and in our country,and so that's what prompted the Congress to
enact the Endangered Species Act and makeit far broader and more extensive than it
had been in the two earlier acts. I know that there were a lot

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of efforts at that time to preservethe environment, and addressing endangered species in
particular is one way of doing that, and an important way of doing that,
even for species that might not behow shall I put it, telligenic

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or cute, or you know,easily relatable to human beings in their everyday
lives. It was certainly important,as I perceived it, and as I
understand it, to to get youknow, public buy in through, you
know, the idea that a certain, you know, relatable species of mammal

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might no longer exist. But itwent far beyond that. Was there a
particular reason that the Act was framedin the way that it was around particular
endangered species or the way that itwas structured the way it was, and
as a result, was it moresuccessful because of that? That is a

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very probing question. The big controversyand the major controversy during the period of
seventy two and seventy three when theCongress, who's debating this was who was
going to have a priority and bemaking the final decision? Who had who

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had priority? Was it the statesof the federal government. And that was
a great, great dialogue going onfor two years. And the way it
finding was resolved is the federal governmentwould make all decisions. They had total
primacy over the of what species wouldbe declared endangered or threatened. Okay,

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so how was that administered specifically andhow were those individual decisions made through the
federal government. Well, the responsibilityfor administering and forcing the Endangered Species Act
was by Congress designated to be underthe umbrella of the US Fish and Wildlife

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Agency for most species and for marinemammals, the National the Commerce Department had
had section called the National Marine FisheriesProgram and they handled marine mammals. It's

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it's interesting that it was sort ofdivided up that way. You could see
the uh, the possibility for asort of you know, being a cross
purposes given the fact that that itwas it was divided that way. Did
did that end up with with anydifficulties as far as the implemmation and the

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implementation either early in the ESA's existenceor or or later on in its history,
well as the kind and many inthe Congress predicted and the people the
testimony during the hearings repeatedly said,this is not going to work. It

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should be one agency or the other, and it's really not proper to have
it a split authority that has causedproblems and now that has caused problems then
and now and continues to cause someproblems. They've pretty well worked out the

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levels of the boundaries and of jurisdiction. However, it was a very heated
issue throughout seventy two and seventy threewhen they were debating the act. People
said it was not going to work, and they were correct. Okay,

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So once the Endangered Species Act waspassed, how did the the courts interpret
How far had she got? Thefirst major case was tvav. Hill That
was in nineteen seventy eight. TheAct was passed in seventy three. There

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was a lawsuit that worked its wayup through the judicial system and finally got
to the desk of the Supreme Courtin nineteen seventy eight, and the Supreme
Court took a very narrow view intheir interpretation of the Act, and they
said, it applies to all species, plants and animals both, and it

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doesn't matter whether it's a grasshopper,an insect, a butterfly, a buffalo,
or a mountain lion or a fish. It applies to all living organisms.
That surprised a lot of people.And the SoundBite initially by the press

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was that g and the Congress wasgeep. We thought it only applied to
mega fauna, large species like polarbears, right and grizzly bears. And
the Court said, no, thisis a very narrowly interpreted law and it
applies to everything. So that wasthe first major how shall I say it?

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The first major surprise that came afterthe Act was passed was that the
reason or one of the reasons thatthe inn Aged Species Act became so publicly
controversial in the nineteen eighties and nineteennineties, with with fights over over species
like the coho sam and the spottedowl, et cetera. Yes, absolutely,

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there was a I call it adark mythology that was born in the
in the minds of the public andespecially Westerners after the seventy eight court decision,
and they struggled, and the USFish Wildlife Service has struggled with this.

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Now, let me back up.When I really looked at this.
Now, I'm eighty I'll be eightyfour in January. I started practicing law
ten years before in Dangerous Species Actwas passed right here in Washington, d
C. Where I continue to practice. Now, I knew all the people
that wrote the law and then lateradministered the law. I knew the wall

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and there are three still, thankgod, three still alive that were part
of the original group. That wasa very period of very mentality in Washington
of command and control following World WarTwo. During World War II, the

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country adopted and had to adopt avery command and control approach to doing business,
especially uh with World War two on, you know, on the on
the on the plate of the public, and that command and control mentality continued

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on for many years. All ofthe men that wrote the Endangered Species Act
were war veterans, and likewise,the men in the US Fish and Wildlife
Service, the men and women thatwere then charged with implementing the Act and
applying and enforcing the Act were alsoall veterans. Who was very disciplined approach

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by these folks. Once the Actwas passed and it was supported then by
the Supreme Court, who said thisis absolute, ironclad, there's no outs,
there's no there's no wiggle room here. If it's an endangered plant or

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an animal or an insect as designatedby the US Fish and wel Line Service,
it shall be right. And sothat's sort of a long answer to
your question. But it came fromthat command and control concept and mentality that

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really was alive and well hered Washington, and I was part of that.
I came here and started practicing alongten years before the Act was the final
Act seventy three was passed, andI knew John Dingo very well, who
not only wrote the sixty six Actthe sixty nine Act, but was a

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prime mover and champion of the finalseventy three Act. And he was a
war veteran, as were many ofhis folks. I had been in the
military eight years in the Army,both active as well as a reserve.
And so I understood, finally understood, it was right in front of me

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the whole time when I did myresearch that it was a command in control.
It was then verbalized by the SupremeCourt when they wrote the seventy eight
decisions where the controversy came from isbecause it was absolute. You couldn't argue
with the federal government period. Andyou're saying then that that top down command

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and control approach set up the EndangeredSpecies Act and its implementation for a lot
of conflict with agricultural land owning,ranching business interests who would have to follow
that law. Yes. Yes,And the attitude of the federal government did

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not change until Bill Clinton was electedpresident. He was the first one since
Truman, actually since FDR. Hewas the first president that had not seen
military duty. The last one thathadn't seen it was FDR, and all
the presidents in between had seen activeduty during the war. So when Clinton

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came aboard, Bruce Babbitt was hisSecretary of Interior, and in taking a
look at the controversy of the DangerousSpecies Act and the log jams that it
created, finally recognized that we couldnot continue with that same mentality of command
and control. And he's the onewith what he called his ten point plan

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that came and introduced flexibility in theapplication of the wrong and they began to
enact a series of regulations, notlegislation, but regulations within the Fish and
Wildlife Service that lifted and addressed manyof these problems that made it much easier

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for working landowners to deal with theEndangerous Species Actor. Thank God, and
that mentality that seed change, ifyou will, continues to this day.
Can you give us an example ofthe kind of top down regulation or implementation

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of the Endangered Species Act which priorto the Clinton era would have been particularly
difficult for people to implement on theground, which as a result of the
change in attitude he brought about,uh became became more flexible and easier to

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deal with. And you're asking,I'm asking if there's a particular example,
because I you know, I understandthat you know, a lot a lot
of you know, ranchers or orlandowners or or industrial interests by default,
are you know, are are likelygoing to say that they just can't certainly

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in this day and age, maybenot so much back you know, thirty
forty years ago, are going tosay that, yeah, we we can't
do this, this is too muchof an imposition on us, and that
that may or may not be thecase. What I'm trying to find out
and get at is an example ofsomething that perhaps the well intended was truly

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onerous in terms of being able toimplement it. And and a specific example
of how the Clinton administration turned thataround in a way that one both reflected
the spirit of the law and twouh have made it easier to for for

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folks to actually deal with it inprocess. Yes, good question. Let
me think of a of a goodexample. There are a lot of examples
out there. Let me let mepick the cow, the cattle, beef,
beef cattle. They grazed to alarge extent in the West on federal

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forest land and public lands BLM lendsas well. And the LNG was very
stringent in terms of limiting how muchgrazing could be done on what I'll call
the public estate. And and therewas a breath of fresh air when that

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was relaxed, and the grazing permitswere annually renewed with a far easier microscope
than they had been in the pastof federal govenort. Okay, And just
one example, and and and inthat example, did did that still allow

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the law, in your opinion,to be to be implemented in such a
way that it was still serving itspurpose rather than just being circumvented for for
the benefit of business interests. No, the US Facial Lielfe service has been
very good in balancing the interests andthe needs of what I'll call our commercial

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sector, especially our agriculture sector.With the rigidity of the act, if
you will, and the intent ofthe Act. They've been pretty good in
balancing those two. Okay, whatwhat in your opinion have been the biggest
successes overall of the Endangered Species Act? Where Where has it moved the environment

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in a positive direction where that wasnot the case in nineteen seventy three.
Sure, there are about It variesfrom week to week, but they are
about about sixteen hundred and eighty somespecies listed as either threatened or endangered,
and that's roughly forty wildlife and sixtypercent plants. There are about six hundred

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and eighty some species that are listed. About sixty percent of those are plants,
and the other when I say plants, also meet plants and insects and
so forth, and the forty percentanimals and aquatic species. Now, if

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those sixteen and eighty some species hadnot been protected by the law, they
would be probably gone, are primarilygone, and no longer existed today.
They would have become extinct. Thatis the greatest success. Now the naysayers

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want to say, well, mygolly, you've only delisted forty or fifty
species. Why haven't you done abetter job. Well, it's taken longer
for everyone to realize that it takesa long time to rehabilitate certain species that
were in crisis. So the naysayersalways want to point to the fact that

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they just be few stings. Butwhat you have to look at really is
the positive side of it. Howmany have been protected and are still protected
because of the law sixteen undred andeighty some species that have not gone extinct.
Have there been adaptations or amendments tothe law or changes in approach to

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enforcement of the law that have bettertaken into account how long a time it
does take to rehabilitate species. Yes, there have been only three. Well,
there have been several amendments to thelaw, but there have been only

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three major amendments. The last oneis in nineteen eighty eight. Interestingly enough,
before Clinton took office and Bruce Babbittbecame secutor Interior. Now, what
they realized is that they had toloosen up, and they could only do
it through regulation. They recognized thatit took Congress forever to enact the law

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or change the law, and it'seven got more polarized more today than it
did then. But they recognized it. It just was ineffective to rely on
Congress to provide the relief that landownersneeded. So what they began to do

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is regulate the law. When itwas passed in nineteen seventy three, there
were twenty The law was twenty pageslong, and the regulations were only fifty
pages fifty Today the law is fiftypages long and the regulations are five thousand

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pages five thousand, and those fivethousand pages were created to loosen up and
make it a lot of these forlandowners to live with the law and begin
to recognize that, through funding providedby the US Fish and Wildlife Service and
the programs at the Department of Agriculture, that they could live with the law

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and actually improve their bottom line.How do you believe we can make sure
the Endangered Species Act continues to bea force for environmental preservation into the future.
The universe, the planet is avery resilient planet and it heals itself,

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notwithstanding man's destruction of many parts ofthe planet through over foresting or grazing,
mining and the like. Okay,and man's destructive nature can lead to

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man's ultimate demise because the earth willreact, and it does react. We've
seen it with the volcanoes and eruptingand the Labba flow is just as one
example. Work with climate change,which is a big, big issue,
a major issue that has really exacerbatedthe pressure on the Endangerous Species Act,

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and we need to look at man'sconduct and try to get get it under
better control it than has been inthe past. As they continue to how
shall I say it, pollute,destroy and poison the earth with chemicals of

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waste and other forms of degradation.It's a very the earth is a very
special place which our indigenous people havealways recognized and we need to recognize it
as well. Yeah, and weneed to remember that it's that it's all
of our homes and if we messit up, that's right, we're messing

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up our own backyards, and that'sright. We forget that at our peril.
Few people really recognize this dilemma thatwe're facing called a bio a biodiversity
crisis, and the biodiversity crisis isexacerbated by climate change, but right in

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the middle of all of that isthe Dangerous Species Act, which is designed
to stop of degradation and stop speciesfrom being extinguished. But even today,
notwithstanding that Act being around for fiftyyears, they are being extinguished and more
today than they were fifty years ago. It's continuing to accelerate, and it's

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it's another important tool that we haveto make sure that as we face greater
and greater environmental challenges, our ecosystemremains as balanced as is possible. And
let's hope that the next fifty yearssee the Act remain just as strong.
We've been speaking with Lowell Bear.He is the author of the Codex of

(26:23):
the End Injured Species Act, theFirst fifty Years, Volume one. Mister
Bhaer, thanks so much for beingwith us today on Face Palm America.
Well may I mentioned that volume twodeals with the next fifty years well and
hopefully that will serve as a guidebookto future generations so that they can maintain

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the same or even greater standards tomaintain our environment. And volume three will
be released. Volume two comes outthis week and Volume three will be released
on Earthday, April twenty second ofnext year. Then I look forward to
it. Lowel Bear, thanks somuch for being on face Palm America.
All the best to you. Iwant to thank Ace Elson and Roosebel Hine

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for producing this program. You cango again to facepalmamerica dot com for past
episodes, engaging with us on socialmedia, and you can call her message
us at two zero two six fivesix six two seven to one. Please
share this episode with a friend,let them know that it is something worth

(27:32):
listening to that will grow our program. And until next time, enjoy the day.