Annotations by Clark Chapman
Legislating Noah’s Ark:
Why the Endangered Species Act isn’t working
© Mitch Tobin
One of the penalties of an ecological education is that one lives alone in a world of wounds.
-- Aldo Leopold
If there is danger in the human trajectory, it is not so much in the survival of our own species as in the
fulfillment of the ultimate irony of organic evolution: that in the instant of achieving self-understanding
through the mind of man, life has doomed its most beautiful creations. And thus humanity closes the door
to its past. [One of my college roommates was an assistant in “E.O.’s” lab at the time.]
-- E.O. Wilson
INTRODUCTION
Bomb-sniffing dogs and police officers from nine agencies scoured the grounds of
Eastern Arizona College on September 20, 2004, the day that four Republican congressmen
came to the town of Thatcher to beat up on the Endangered Species Act. The meeting was the
latest in a string of lopsided Congressional field hearings on the ESA, the nation’s most powerful
and controversial environmental law. Thirty-one years before, President Richard Nixon had
signed the act and codified God’s command to Noah. [What precise command? I know what
Noah did in response, but not the specific command.] Now, with Republicans firmly in control of
Congress and the law’s chief critic in charge of the House Resources Committee, the ESA itself
was endangered.
I came to Thatcher to cover the hearing for the Arizona Daily Star, Tucson’s morning
newspaper. For nearly four years I had been the paper’s environment writer and filed daily
dispatches from the front lines of the species wars in the Southwest, the nation’s fastest growing
region and one of its most biologically diverse.
As around 500 people filtered into the college’s auditorium, the security forces searched
bags and scanned for weapons – measures you wouldn’t expect had the hearing dealt with Social
Security or tax policy. [These days, post-9/11, there’s security practically everywhere.] The
precautions were essential, however, given the polarization over the ESA and the meeting’s
location. Looming behind the college is 10,720-foot Mount Graham, the tallest mountain in
Southern Arizona and home to one of the Southwest’s defining eco-battles.
Mount Graham [just a narrow detail: isn’t “Mt. Graham” just one peak in a mountain
range called the Pinalenos? It is the range that is 25 miles long] is a narrow, 25-mile long reef of
granite and gneiss that juts up nearly 7,000 feet from brown basins dotted with agaves and
prickly pear cacti. Around Graham’s summit – which lies less than 100 miles north of Mexico –
there is a lush spruce-fir forest that resembles the vegetation in Canada. [Graham is the premier
example of a “sky-island”.] In the 1980s, the University of Arizona set out to build the world’s
most powerful [Certainly it was intended to be one of the most powerful telescopes, but the two
10-meter Keck telescopes, both completed in advance of the LBT and certainly being conceived
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at the same time in the 1980s, represent a more powerful combination in many respects] groundbased telescope atop the mountain, where clear nights prevailed and light pollution was low
[because of its distance from major cities]. The proposed site for the 9-acre observatory complex,
in the Coronado National Forest, was also home to the sole population of an endangered squirrel
that has been marooned atop the isolated range since the last Ice Age. Desperate to stop the
project, Earth First! activists and others were arrested en masse after storming the administration
building on the UA campus and after chaining themselves to the cattle guards embedded in the
serpentine road leading up the mountain [what year?]. Despite occasional vandalism and more
than 100 court actions, the state’s flagship university eventually prevailed by pressuring
Congress to do an end-run around the ESA and legislate the project into existence.
I’d been to Mount Graham frequently in the months preceding the Congressional hearing,
both for work and to go backpacking. Ten weeks before the lawmakers arrived in Thatcher,
lightning sparked a pair of wildfires that merged on the north face of Mount Graham. The 250foot flames roared toward the telescope complex just as astronomers were preparing to dedicate
its centerpiece, a $120 million instrument that would be 10 times as powerful as the orbiting
Hubble Space Telescope. The 29,400-acre Nuttall Fire was the latest in a series of monster
blazes to the hit the Southwest as record drought, insect infestations and decades of misguided
fire suppression conspired to produce infernos that were unprecedented in both size and
intensity. As Mount Graham burned that summer it occasionally expelled a mushroom cloud of
smoke above Thatcher, ground zero for conflict over the ESA. Looking up at Mount Graham that
morning from the parking lot of Eastern Arizona College, I could see where the flames had
turned the range from green to black.
Besides being an epicenter for fights over the ESA, Mount Graham epitomizes the
tremendous biological diversity of the American Southwest, a region many outsiders envision as
barren and boring. Known as a “sky island,” Graham is the tallest of some three-dozen forested
mountains that are surrounded by seas of desert and undulating grasslands. This elevated
archipelago spans the U.S.-Mexico border and serves as a sort of ecological crossroads. Two of
North America’s four major deserts – the Sonoran and Chihuahuan – meld here, as do species
from both the Rocky Mountains and Mexico’s Sierra Madre. It is a harsh yet fragile land of
scarce water with wolves and jaguars, moss and cacti, plus an unparalleled array of creepy
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crawlies that includes a venomous “monster.” The diversity extends to the entire southwestern
corner of the country, as shown in Figures 1 and 2. Eons of evolution have imbued plants and
animals with unique strategies for surviving an environment characterized by roller-coaster
topography and feast-or-famine weather. Count up all the known species in Arizona and New
Mexico and they rank third and fourth in biological diversity among the 50 states, even though
neither has any coastal habitat.
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Figure 1: State patterns of species diversity
Figure 2:
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Over the past century, an invasion of just one species – Homo sapiens – has caused an
ecological transformation in the Southwest not seen since Ice Age glaciers receded some 11,000
years ago. Lured by cloudless skies, cheap real estate and the lore of the Wild West, millions of
people have flooded into the region. Arizona and Nevada are our two fastest growing states –
and two of our driest. In an otherwise unforgiving land, where the mercury may top 100 degrees
for 100 straight rainless days, concrete rivers now flow [the “flow” is an assisted flow] uphill so
the masses can enjoy margaritas beside manicured golf courses and live in subdivisions named
for the animals they displaced. Similar stories are playing out across the nation and around the
globe as humans continue to drive species extinct at roughly 1,000 times faster than the natural
rate.
The ESA was designed to reverse that trend, at least in the United States, and the hearing
in Thatcher was billed as a way for lawmakers to solicit the sage advice of expert witnesses who
could help them craft reasonable reforms to the law. In reality, the meeting put the ESA on trail
[trial] in a kangaroo court that doubled as a campaign rally for Rick Renzi, the first-term
Republican who represented the area and faced an election in six weeks. Before the forum began,
friend and foe of the ESA and Renzi held rival demonstrations outside the auditorium. To my
left, environmentalists held up hand-drawn signs: “Telescopes bad. Squirrels-wolves good,”
“Clear cut Renzi, not squirrels,” and “Squirrels protect our sacred mountain.” To my right,
ranchers and other rural residents held up their own declarations: “Worship the creator not
creation,” “ESA is not about the environment, it’s about control,” “Regulation without
representation is tyranny,” and “Removing cows is larceny.” I stood in the middle of the
opposing camps that morning, literally and politically.
As a jaded journalist, I don’t trust either group. I think both sides tell half-truths, even
outrageous lies, in order to further their causes and reinforce their beliefs. To those on the right,
the ESA is an unfair, inflexible, Draconian, astronomically expensive tool for promoting the
agenda of urban, Godless, pot-smoking, America-hating, anti-capitalist chicken littles who want
everyone to stop shaving, hunting, eating beef, riding ATVs and driving anything except a
hybrid import. To those on the left, the ESA is a safety net above the abyss that offers the last,
best chance to stop an ecological apocalypse sanctioned by corrupt, conservative politicians and
perpetrated by bovine ranchers, blade-and-grade builders, slash-and-burn loggers, scrape-and6
rape miners, don’t-tread-on-me property-rights zealots, and selfish, soulless, SUV-driving
developers.
In reality, the ESA’s performance, its politics, and the fate of endangered species are
characterized by complexity and paradoxes that belie simplistic signs and slogans. Up on Mount
Graham, plenty of astronomers who are Democrats and sympathetic to wildlife conservation
have been appalled by activists’ obstructionism and monkey-wrenching. The squirrels
themselves are occasionally preyed upon by another endangered species, Mexican spotted owls,
which [antecedent is squirrels or owls?] would be in better shape if we cut down more trees in
overgrown forests. In the valleys below Mount Graham, endangered flycatchers build most of
their nests in salt cedar, a pesky non-native plant that is imperiling other species. Out in the
western part of Arizona, the nation’s busiest military bombing range also contains one of the
most pristine patches of Sonoran Desert.
People also defy the stereotypes. There are meat-eating environmentalists who wear
Stetsons and argue that continued grazing is the key to safeguarding large tracts of open space.
There are wine-drinking ranchers who belong to environmental groups and go out of their way to
improve habitat for critters. Two of the region’s greatest advocates for jaguars are professional
hunters who use hound dogs to tree mountain lions then shoot them at close range.
Everyone claims to care about Mother Nature, but potential allies in the quest to preserve
biodiversity have been driven apart because the ESA isn’t just about saving rare plants and
animals. The law has become the biggest hammer in environmentalists’ toolbox, a legal
juggernaut that lets people with a minority viewpoint block projects they don’t like while
wrapping themselves in the noble banner of preventing extinction. At the turn of the 21st century,
if you want to bollix up a proposed telescope, powerline, subdivision, shopping mall, grazing
lease or timber sale, your best bet is to hitch your campaign to federally protected species in the
area (or start looking for some bug or bush whose numbers are on the decline and try to get them
on the list.) There are other laws that can let you tinker with smokestakes or guarantee you the
right to submit public comments that will sit on a shelf. None has the regulatory teeth of the
ESA.
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As I entered the community college’s humble auditorium, protestors spanning the
political spectrum screamed at me and the other members of the audience. I took a seat in the
orchestra pit and began to transcribe inflammatory rhetoric. Greg Walden, a congressman from
Oregon, said the ESA had led farmers in his district to commit suicide after a water war broke
out in the Klamath Basin in 2001. The speaker of the Arizona House of Representatives, Jake
Flake from the town of Snowflake (I’m not making this up), blamed the ESA for the demise of
the Southwest’s timber industry. Congressman Richard Pombo, the rancher from California’s
Central Valley who was once again trying to gut the act, told the crowd the ESA had become
“the preeminent law of our country.” “There’s not a single function of the federal government
that takes precedence over the Endangered Species Act,” Pombo said, “not even national
defense.”
Conservative critics aren’t exaggerating when they describe the ESA as the “pit bull” of
U.S. environmental law. Because it mandates that the government protect imperiled wildlife, the
ESA has shuttered timber mills, stopped bulldozers in their tracks, caused heartache for ranchers
and altered important federal projects – even those related to the military and border security in
the post-9/11 world. A 15-minute drive from the auditorium, construction of an 800-foot bridge
over the Gila River had been held up for more than two years in order to conduct surveys for the
Southwestern willow flycatcher, a bird that spends most of its life-cycle in Latin America.
School buses had to take a 26-mile detour each way, forcing the district to shorten the school
day.
Journalists like myself tend to focus on such train wrecks between the ESA and
development. But these cases are exceptional– and often avoidable. I also think it’s wrong to
scapegoat the ESA for the decline of timber, ranching and farming in the Southwest. Logging in
the region, which has always paled by comparison to the Pacific Coast because of tougher terrain
and thinner trees, had been ailing long before the Mexican spotted owl was listed in 1993.
Ranchers certainly have been hurt by the ESA, but their industry has suffered even more from
drought, imported beef, changing consumer tastes, mad cow disease and the sprouting of
subdivisions on rangeland. And plenty of farmers have gladly sold out their land to developers
and started raising martinis after realizing that water rights often favor city dwellers and that the
developing world will continue to undercut them in the global marketplace.
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Without a doubt, the ESA forces taxpayers to foot some pretty steep bills. The week
before the hearing, the feds, Arizona, California and Nevada signed a 50-year, $626 million deal
to protect 400 miles of habitat for endangered species along the lower Colorado River. Even so,
creatures that aren’t charismatic tend to have a pittance on their behalf. In many cases, scientists
don’t even have enough money to count the animals they’re supposed to be saving. The Interior
Department’s $150 million in annual expenditures on endangered species is equivalent to about
12 hours worth of military spending on the Iraq war.
Over and over during the hearing, the lawmakers and their sympathetic witnesses
bemoaned the litigation surrounding the ESA. Sure enough, on that very day, the Center for
Biological Diversity had once again sued the U.S. Fish and Wildlife Service, hoping to get the
agency to protect two Southwest fish. Petitions and ensuing lawsuits from the Tucson-based
group had already led to the listing of one-quarter of the nearly 1,300 U.S. species protected by
the act – an approach so aggressive it was criticized by other enviros fearful of the backlash that
was now unfolding. If you didn’t know any better, you’d think only green groups had been
seeking recourse in the courthouse and that most of their suits were frivolous. In fact, lawyers for
cattlegrowers, homebuilders and other industry groups had sued plenty themselves. And
environmental groups like the Center won the majority of ESA cases because most were simply
pointing out that Fish and Wildlife hadn’t met deadlines and mandates clearly laid out in the law.
Judging by the ratio of sandals to cowboy boots in the audience, this was a predominantly
Republican crowd and the politicians tossed out plenty of red meat. They kept intimating that
were it not for litigious environmentalists stalling and blocking forest-thinning projects, the
recent wildfires wouldn’t have been so bad. But I suspect the lawmakers didn’t go far enough for
many in the audience. None questioned evolution and promoted creationism, as do many
Americans. All said it was a good idea for Congress to have passed the ESA. Everyone wanted
to see endangered wildlife recover. Even these men, some of the act’s harshest critics, didn’t
openly question the moral imperative underlying the law, a principle rooted in the Biblical story
of Noah: we have a duty to ensure the continued existence of species, no matter how
uncharismatic or seemingly unimportant the fly, fleabane or fairy shrimp. While the politicians
didn’t hide their desire to shorten the act’s reach and give landowners more wiggle room, at least
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publicly they didn’t argue that some species deserved to go extinct, as some of their constituents
did. Taken at their word, it was all about boosting the act’s effectiveness, and everyone agreed
there was plenty of room for improvement.
With the broadest of brushstrokes, it is easy to portray the ESA as “failing” and in need
of a major overhaul. Over the past three decades, only seven domestic species have recovered
and been discharged from nature’s emergency room. In the case of two delisted birds, brown
pelicans and peregrine falcons, the banning of the pesticide DDT in 1973 had a bigger role than
the ESA in their rebound. But is it really the ESA’s fault that a species isn’t improving if the
manmade threats still exist and if the creature has already been reduced to a sliver of its historic
range and population? That those species haven’t already blinked out forever suggests that ESA
is at least “succeeding” at preventing extinction, if not achieving full recovery. Only four birds,
four fish and one mollusk protected by the ESA have gone extinct; in most cases, the federal
protection was too little, too late. Without the ESA it’s likely that dozens of species would have
disappeared forever or been so decimated they would have no chance of coming back.
After the hearing ended, people filed out of the darkened auditorium and squinted as they
emerged into the midday sun. On the lawn outside, young environmental protestors yelled at the
crowd. In more measured tones, conservationists can tick off the reasons why society should
make sacrifices to ward off extinction. I lump the arguments into E’s: Ecologically, the
vanishing of a species can have cascading effects on the web of life. Educationally, extinction is
tantamount to burning the last copy of book that holds answers to questions we haven’t even
asked yet. Economically, a species can be an important pollinator of cash crops or hold the cure
to cancer. Esthetically, we marvel at nature’s complexity and feel warm and fuzzy inside to
know there are wolves howling in some far-flung wilderness. In all these ways, stopping
extinction can be in our self-interest. The problem is that any given endangered species may not
seem to serve any of those functions – its loss won’t cause an ecological house of cards to
tumble, it holds no scientific secrets, it offers no monetary or medical value, it looks like
something you should step on. Of course, it is often impossible to know each species’ value until
it is gone.
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Ultimately, I feel the fate of endangered species comes down to another “E,” Ethics. Do
you believe it is immoral for humans to wipe out a plant or animal that has evolved over
thousands, if not millions of years? You either think it’s a sin or you don’t, and no amount of
suing, studying or screeching is likely to change your mind, especially if the challenge to such a
core value is coming from across a cultural chasm.
Fifteen months after the Thatcher meeting, Pombo and the other Republican lawmakers
were on a roll. In December 2005, the House of Representatives passed the most sweeping
overhaul of the ESA since President Nixon signed the act in 1973. The rewrite made it much
harder to get new species listed as endangered, further politicized the science at the ESA’s core
and potentially opened millions of acres of habitat to more development. The effort stalled in the
Senate in 2006 as Republicans’ hemorrhaged political capital with the continuing bloodshed in
Iraq and as more moderate GOP senators balked at Pombo’s plan. In November 2006, Pombo
lost his bid for reelection due to the anti-incumbency mood sweeping the nation, his ties to
disgraced lobbyist Jack Abramoff and a well-funded attack by environmentalists. Pombo’s bill is
dead – at least for now.
Since the meeting in Thatcher I’ve continued to travel around the Southwest in search of
the region’s endangered species and some insight into the ESA’s workings. I’ve tried to leave the
political rhetoric behind as I’ve stepped into species’ homes at the top of Mount Graham and in
the bottom of the Grand Canyon, on a lava field in Northern Mexico and in the hospital at the
Phoenix Zoo. My exploration has been guided by several questions: Why is this species in
danger of extinction? What is being done to save it from oblivion? Can our recovery efforts be
more effective? In many, but not all, cases, I’ve found that scientists have a pretty good idea why
a plant or animal is in trouble and what steps must be taken to stem the decline. The problem is
that biology does not solely govern our biodiversity policy – politics and economics have as
much, if not, more weight in the decision-making process. How to reconcile those forces, all of
them necessary and important, is the challenge before us.
This book focuses on a dozen or so species that live in the American Southwest, a region
that is centered on Arizona and New Mexico, but which also includes West Texas, southwest
Colorado, southern Utah, southern Nevada and the deserts of California. Perhaps the region is
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best defined as the land where you’re sure to find Kokopelli [probably better explain this, a bit,
with an adjective or two] knickknacks in gift shops. Can one region and a fraction of the nation’s
nearly 1,300 listed species tell us anything about the ESA’s overall performance? I think it can.
Too often, partisans have focused on broad generalizations about the ESA, then cherry-picked
individual recovery efforts to bolster their point of view. The analysis needs to go the other way
around. We need to first bore down and look at the individual stories of our endangered species –
the efforts run the gamut from fencing off a few acres to protect a rare cactus to reintroducing
wolves to millions of acres – before we can judge how the law works overall. It would take many
lifetimes to tell the stories of all 1,281 endangered species, so I’ve tried to draw conclusions from
a sample in one region.
The Southwest may not encompass every threat or issue related to endangered species,
but it does provide a touchstone for evaluating the ESA. Few other places have seen the demands
of a growing population take a heavier toll on native plants and animals. In the Southwest, we
also see the evolution of the general public’s attitudes toward deserts, predators, wildfires and
other elements of creation that were formerly despised. At the same time, the region’s often
unsuccessful struggle to preserve its biodiversity reminds us that we still haven’t learned to
coexist peacefully with species other than our own (not to mention each other).
I begin with the tales of two endangered animals – the California condor and Mexican
gray wolf – that humans nearly hunted to extinction. Both the condor and wolf have been saved
from oblivion by multi-million dollar reintroduction efforts, but in neither case is the species
truly recovering. After explaining how the ESA became the nation’s most powerful
environmental law – and how critics have sought to cripple its protections – I examine the act’s
effectiveness in saving Southwest species imperiled by four major threats:

wildfires made worse by global warming

overgrazing and the subdivision of rangeland

illegal immigration and the Border Patrol response

urban sprawl and dwindling water supplies
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In each of these issues, environmentalists have used the ESA to limit harmful practices. Yet
these case studies also show that hard-line activists can impede a species’ recovery when they
block aggressive management of wildlife and their habitat. The ESA itself can sometimes do
more harm than good by creating a disincentive for conservation. Listed creatures come with so
much regulatory baggage that if a landowner finds one, the strategy of “shoot, shovel and shut
up” can be appealing. Besides enticing people to purge their property of endangered species and
destroy habitat, the heavy-handed bureaucracy that enforces the ESA paralyzes scientists and
land managers who want to study and help rare wildlife.
Our own species’ capacity to master our environment has jeopardized many other
creatures, but our technological abilities also offer some hope for reversing the decline in
biodiversity. Going into the 21st century, the ESA itself needs to be modernized to confront the
mounting threats. I close with suggestions for reform: We need to intervene before species are at
the brink of extinction. We need to encourage biologists to take bolder measures and better
insulate scientists from politicians. We need to search for compromises and win-win solutions
that benefit both humans and wildlife. We need to complement the ESA with other efforts to
conserve our land and water. Most importantly, we need to fund the ESA adequately. Only then
will we fulfill the ESA’s promise and God’s command to Noah.
***
[Good and interesting introduction. My personal, brief take on ESA is that it is a very blunt and
powerful law and, in isolation, can be seen as too powerful. But most land-use laws favor the
developers. If there were a better balance between development and conservation, expressed in
the full panoply of local/state/federal laws, then one could afford to moderate the ESA. But
since it is one of the very few tools in environmentalists’ toolbox against the dominant
development culture, its strength is a virtue.]
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