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7/14/2009 5:01:46 PM
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UCREFRP
UCREFRP Catalog Number
7749
Author
Kohm, K. A., ed.
Title
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USFW Year
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USFW - Doc Type
1991
Copyright Material
YES
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.Snail Darters and Pork Barrels Revisited 71 <br />use is the main cause of habitat destruction, and habitat de- <br />struction is the main cause of wildlife endangerment. The hard <br />choice is unavoidable: Saving wildlife means more restrictions <br />on what we can do to the natural environment. <br />Conceding that the present ESA mechanism is not perfect, the <br />other side of the coin is that endangered species protection in <br />the United States since 1973 has been far more successful than <br />the act's sponsors could have hoped. Those sponsors evidently <br />did not foresee the range of species to which the act would apply <br />or the kind of land-use conflicts that would arise. In spite of <br />political opposition and administrative disinclination in the <br />1980s, the list of protected species continues to grow. When <br />agencies ignore or downplay the welfare of listed species, courts <br />in the main have forced them back on the path of legal recti- <br />tude. Although the presence of an endangered species by itself <br />rarely blocks a proposed land development, it is now accepted <br />that developers must alter their proposals and mitigate conse- <br />quences. In an imperfect world, perhaps this is the best that the <br />only self-consciously anthropocentric species can do. It is, in any <br />event, far preferable to the state of affairs before 1973. <br />Nearly a decade after arriving at the cautious conclusion that <br />began this essay, I had recent occasion to revisit the subject in a <br />less theoretical context. From the viewpoint of species in dan- <br />ger, my conclusion today is more hopeful: <br />The keys to the puzzle are mitigation and, accommodation. Law- <br />yers should inform developers or user clients that their preferred <br />use is subservient to the listed species' welfare, and that their <br />projects or uses must be designed to obviate the likely harms to <br />protected species that they might otherwise cause. The courts are <br />not prone to outlaw all human uses that might conflict with some <br />endangered wildlife if they are convinced that the agency and <br />promoter have made good-faith efforts to observe the spirit as well <br />as the letter of the ESA. As Thomas, Conner, and Sierra Club v. Lyng <br />illustrate, however, apparent attempts to circumvent ESA stric- <br />tures are prescriptions for litigative failure and the delay, expense, <br />and frustration that inevitably ensue.ss <br />Notes <br />I apologize for the overabundance of citations to my own books and <br />articles. This, however, is a personal essay, not an objective evaluation, <br />
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