7749 - Laserfiche WebLink

Home Browse Search

66 REFLECTIONS ON THE ACT just one more paperwork burden without much substantive sig- nificance. The scorecard of wins and losses in lawsuits brought to enjoin potentially harmful projects is not an adequate measure of the ESA's impact on federal land use. Assuming, unfairly, that the federal land management agencies would always prefer eco- nomic development- to wildlife protection, a more accurate gauge of impact is the changes a proposed project undergoes from initial conceptualization to realization. Two cases decided in 1982 are instructive. In the first, the Forest Service approved a mining exploration plan for an area thought to be inhabited by grizzly bears.I' In the end, the reviewing court allowed the prospecting operation to proceed, but only because the Forest Service and the FWS imposed a long series of mitigating condi- tions on the prospector designed to avert any substantial distur- bance of the threatened species. In North American Wild Sheep,12 on the other hand, a different court was not convinced that mitigation measures would be effective in avoiding harm to a nonlisted species and enjoined the road reconstruction proposal at issue. Three lessons stand out from these two cases. One, judges have different opinions just like everyone else. Two, inclusion on the list of endangered and threatened species does not automat- ically mean that the species' territory is off-limits to all human activity. Three, and most- important, agencies realize that the days of economic development fiber alles are over. The project must be shaped to suit the requirements of the listed wildlife or the project, not the wildlife, will be dead in its tracts. The most important ESA lawsuits are only now being filed and decided as I write in 1989. Since the Snail Darter opinion more than a decade ago,13 most cases have concerned the effect of a single project on a single vulnerable species. The judicial results have been mixed. In cases involving federal lands, courts have remanded agency decisions for failure to observe required ESA procedures in a variety of circumstances, from road build- ing14 to oil and gas drilling15 to questionable local mitigation promises.16 Equally telling, the courts have invariably upheld land management agency actions intended to protect listed spe- cies even though the effect on human economic and recreational interests was substantial." In several cases, on the other hand,