The Endangered Species Act of 1973 (ESA) is a multifaceted law with a complex history. It was part of a wave of environmental legislation known as the Green Revolution, initially inspired by Rachel Carson’s 1962 book Silent Spring, a nationwide, grassroots movement that drew further inspiration from headline-making catastrophes such as the Santa Barbara oil spill and the Cuyahoga River fire, both in 1969, and its tactics from the civil rights movement and the mass protests against the Vietnam War. Altogether, sixty-seven environmental and consumer protection laws were enacted by Congress in the 1960s and ’70s. Subsequent crises such as the Love Canal and Three Mile Island disasters provided continued momentum.

Throughout this period, Congress responded to the public demand for action, often with complex regulatory schemes such as the National Environmental Policy Act (1970), the Clean Air Act (1970), the Clean Water Act (1972), the Endangered Species Act (1973), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund (1980). The ESA, however, is an outlier among these. While all of these laws created new federal regulatory systems, the ESA was unique in that it was also grafted onto a centuries-old tradition of wildlife utilization by the American people, and wildlife management by state and local authorities. The result was a law more far-reaching than many realized, more difficult to implement and administer than expected, and more controversial than its contemporaries.

Throughout its history, the ESA has been shaped by three concurrent sources of law: legislative amendments, administrative rules (and related policies), and judicial opinions. The drama of the ESA has further played out in the realms of politics, media attention, and public opinion. The following paragraphs briefly describe this history – a more complete history and analysis can be found in The Codex of the Endangered Species Act, Volume I: The First Fifty Years.

In the earliest days of the American colonies, wildlife was an unregulated natural resource freely available for the taking, and an important source of food and raw materials. As the colonies grew, gained their independence from Great Britain, and became the United States, human pressure on wildlife populations mounted. Species such as buffalo, deer, and countless birds were slaughtered en masse, providing food, hides, fur, decorative feathers, and sport.

In the late 19th Century, growing awareness of this slaughter – and an emerging awareness of the possibility of species extinction due to human action – gave birth to the conservation movement. Initially made up of hunters, anglers, writers, and naturalists, the movement began among sporting and fishing clubs, and organizations such as the Smithsonian Institution and the New York Zoological Society. Leading lights such as George Perkins Marsh (1801-1882) and Henry David Thoreau (1817-1862) wrote eloquently of the natural world and sounded the alarm at its loss. Species lost in this period and thereafter included American icons such as the passenger pigeon, heath hen, Carolina parakeet, great auk, Labrador duck, and the “Lord God Bird” – the ivory-billed woodpecker.

These early conservationists inspired the next generation of leaders, which included such figures as George Bird Grinnell (1849-1938), William T. Hornaday (1854-1937), Theodore Roosevelt (1858-1919), and Gifford Pinchot (1865-1946), who led movements to save species such as buffalo, deer, and elk. Roosevelt, Grinnell, and Pinchot, among others, further led the U.S. government in establishing protected reserves for wildlife and forests. The creation of formal government structures around conservation led to demand and funding for a new, professional approach to wildlife management, the development of which was largely inspired by the work of Aldo Leopold (1887-1948). The advent of formal training in biology, ecology, zoology, and other wildlife sciences produced a professional corps of scientists and leaders who also went to work for state fish and wildlife agencies, which had exercised jurisdiction over fish and wildlife as public trust resources since the earliest days of the Republic. By the post-World War II period, America enjoyed a mature, robust system of wildlife management known as the “North American Model,” yet species declines and extinctions continued.

A large part of the development of wildlife conservation throughout the early 20th Century was the gradual expansion of federal authority into the realm of wildlife management, including through the Lacey Act (1900), Migratory Bird Treaty Act (1918), Federal Aid in Wildlife Restoration Act (Pittman-Robertson Act, 1937), Bald Eagle Protection Act (1940), Federal Aid in Sport Fish Restoration Act (Dingell-Johnson Act, 1950), and Bald and Golden Eagle Protection Act (1962).

Events in the 1960s then galvanized America and its leaders in Congress to act. Foremost among these was the publication in 1962 of Rachel Carson’s legendary Silent Spring, documenting the deleterious impact of pesticides on bird reproduction. The Endangered Species Act that we know today was preceded by two more limited versions passed in 1966 and 1969, respectively. The process was actually initiated by the U.S. Department of the Interior, which convened a Committee on Rare and Endangered Wildlife Species which published a report in 1966, prompting the department to seek authority for the federal government to conserve endangered species under existing programs such as the 1956 Fish and Wildlife Act, the Fish and Wildlife Coordination Act of 1934, the Land and Water Conservation Fund of 1965, and the Migratory Bird Conservation Act of 1929.

Congress responded with the Endangered Species Preservation Act of 1966, which authorized the use of public lands and federal resources for protected habitat, sanctuaries, and propagation of select species. However, the contents of the proposed programs were basically unspecified, and the law proved ineffective with little real authority or prohibitions to prevent the killing or interstate trade in endangered species, and had no authority to ban the import of foreign endangered species or parts thereof.

Just four months later, Congress began considering amendments to the new law. This legislation, which ultimately became the Endangered Species Conservation Act of 1969, focused on limiting the importation of endangered species and products derived from endangered species. These goals were partially achieved, but the effectiveness of the legislation was limited by a generous hardship exemption for those engaged in trade of endangered species, a lack of restrictions on domestic trade or “take” of listed species, no mechanism for habitat protection, and a failure to include plants or most invertebrates. The legislation also directed the Secretary of the Interior and the Secretary of State to convene an international ministerial meeting on fish and wildlife in order to develop a binding international convention on the conservation of endangered species, which ultimately led to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

In 1971, Representative John D. Dingell (D-MI), who had sponsored the 1969 act, introduced legislation to expand its purview to include threatened species under the ESA. The Nixon administration simultaneously began drafting entirely new endangered species act to supersede the 1966 and 1969 acts. The Nixon administration’s version of the new ESA was initially drafted at the Interior Department by a working group consisting of Nathaniel P. Reed, Assistant Secretary for Fish, Wildlife and Parks, his Deputy Assistant Secretary E. U. Curtis “Buff” Bohlen, and Douglas Wheeler, also a Deputy Assistant Secretary to Reed. From the White House CEQ Chairman Russell Train, and Dr. Lee Talbot were intensely involved in consultation, but more in the conceptualization of the bill. At Interior, Reed, Bohlen, and Wheeler were occasionally joined by Earl Baysinger, Acting Director of the FWS Office of Endangered Species, Clark Bavin, Chief of the FWS’s law enforcement division, and Cleo Layton, a member of Reed’s senior staff, who all worked collaboratively as a team. In the Congress, the effort was led by Representative Dingell, with whose staff the “Train Team” closely coordinated.

Although the U.S. Department of the Interior moved swiftly to reconcile the existing list of endangered species (listed under the 1966 act) and protect those species under the new ESA, the process of developing implementing regulations and procedures for the new law was protracted. The core regulations that provided for listing species and protecting them from take were implemented in 1975, as was funding for state programs under Section 6, and implementation of Section 7 consultation among federal agencies followed in 1978. One significant aspect of the initial implementation of the law was that the Section 6 regulations provided only for funding of state conservation programs for threatened and endangered species, and afforded states no role whatsoever in administration of the ESA itself, nor any voice in management of species under the ESA. This was a departure from the language and expectations of Congress during the development of the law, but was tacitly accepted thereafter and remains the practice to this day.

When Congress was debating the ESA in 1971-1973, archival records show that America’s focus was on iconic charismatic species such as the bald eagle, whooping crane, alligator, whales, etc. But the law that was passed afforded equal protections to the least charismatic species as well – something that both the administration and Congressman Dingell well understood. It was a surprise to most, however, when the ESA’s first high-profile controversy centered on the lowest profile of species: the snail darter, a tiny fish that was thought to live only in the Little Tennessee River.

The controversy that ultimately led to the U.S. Supreme Court case Tennessee Valley Authority v. Hill was a long, hard-fought battle over the Tennessee Valley Authority’s (TVA) plan to build the Tellico Dam on the Little Tennessee River. First planned in 1959, Tellico ostensibly was intended to divert water a short distance upstream to the reservoir above the Fort Loudon Dam on the main stem of the Tennessee River, increasing the power of the hydroelectric plant at that location. But the TVA condemned not only the 16,500 acres that would be inundated by the new reservoir but a total of 42,999 acres of private land to create housing projects, a model town, and industrial parks around the new lake, at the cost of private homes, sacred native American burial sites, and some of the finest trout-fishing waters in the United States.

The battle over the Tellico Dam predated the ESA, but in 1973 University of Tennessee ichthyologist Dr. David Etnies discovered the snail darter. Due to the efforts of University of Tennessee law student Hiram Hill and his professor Zygmunt J.B. Plater, the snail darter was listed as an endangered species under the ESA in 1975. In 1976, a federal district court held that the Tellico Dam would “adversely modify” and perhaps destroy the snail darter’s critical habitat, in violation of Section 7 of the ESA. However, the court allowed dam construction to continue because it was already under way. In fact, the $116 million dam was already over 90% completed. However, in 1977 the U.S. Sixth Circuit Court of Appeals reversed the district court and ordered construction halted, a decision that was upheld by the Supreme Court on June 15, 1978.

Tennessee Valley Authority v. Hill struck the ESA like a thunderbolt. Members of Congress, led by Tennessee Representative John Duncan, Sr. and Tennessee Senator Howard Baker, Jr., were enraged. They engineered a massive expansion to Section 7, the part of the ESA that prohibited federal agencies from actions that would jeopardize the existence of listed species or adversely modify their critical habitat. In 1978, Congress established the Endangered Species Committee, also known as the “God Committee” or “God Squad,” a complex, unwieldy system that could theoretically exempt a project from the ESA, and even allow a species to go extinct. The God Squad considered such an exemption for the Tellico Dam but unanimously refused to do so. Thereafter Duncan and Baker made numerous attempts to compel the completion of the dam, finally succeeding in 1979 through a rider on the Energy and Water Development Appropriations Act for 1980, and the dam was completed on November 29, 1979, extirpating the snail darter population in the Little Tennessee River. The snail darter survived in other nearby streams, however, and was downlisted to threatened in 1984 and delisted in 2022.

The impact of the snail darter case would reverberate through the ESA ever after. In TVA v. Hill, Chief Justice Warren E. Burger wrote that the “plain intent of Congress in enacting this statute [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost” [emphasis added]. To this day, the ESA is seen as an absolute mandate to conserve wildlife and its habitats, and therefore as an impediment to construction and other human activities. Addressing this tension is one of the major challenges for the future relevance and effectiveness of the ESA.

In enacting both of these new provisions, Congress sought to establish opportunities for new approaches to conservation of listed species, and these tools would later play prominent roles in the ESA, its conflicts, and successes. The very first uses of these tools illustrated Congress’ intent. The first HCP, approved in 1983, allowed a development project on San Bruno Mountain outside San Francisco, California – in fact the San Bruno Mountain Habitat Conservation Plan was the inspiration and model for the amendment. The first species to benefit from an experimental population was the Delmarva fox squirrel, under a rule established in 1984. The squirrel was successful recovered due to partnerships with state governments of Maryland, Delaware, and Virginia, and was delisted in 2015.

The final major substantive amendment to the ESA came in 1988, when Congress expanded the specific statutory requirements of recovery plans, provided for federal post-delisting monitoring of species, again made minor changes to protections for plants, and mandated annual reports to Congress on ESA expenditures. And with that, the ESA as we know it today was complete. No further legislation would follow except for riders in spending and defense bills that made minor (and usually temporary) changes to individual species or programs. What remained was the continued implementation of the law, its interpretation by courts, and the conservation programs that it would enable.

In the early years of the ESA, when Congress was still providing regular oversight and amendments to the law, one of the most important questions was the role state governments would play in conserving threatened and endangered species. Going back to the beginning of the Republic following the American Revolution, state governments had exercised sovereign authority over wildlife resources, managing them as a public trust on behalf of all citizens. Only in the 20th Century did the federal government begin to have a role in wildlife management, and the ESA marked a major departure from earlier conservation laws as it mandated an exclusively federal program.

But Congress left room for state involvement as well. In pre-enactment hearings and debate on the ESA, numerous witnesses and Members of Congress appeared to suggest that states would play an equal, cooperative role with the federal government. But as enacted and applied, states were limited to a supporting role in endangered species conservation, bolstered by varying, but generally small, grants. States retained all of their traditional authority and wildlife management tools for non-listed species in parallel with the new federal program, and whether state and federal authorities are able to cooperate on endangered species recovery often depends on the relationships and goodwill that exists between the leaders involved. Such cooperation has been essential to numerous conservation successes.

The Delmarva fox squirrel is a large tree squirrel that was listed under the ESA’s precursor act in 1967. Historically threatened by hunting, the listing of the species ended that threat, but did nothing to address the significant contraction of the species’ population and range. Delaware, Maryland, Virginia, and the U.S. Fish and Wildlife Service thereafter collaborated on a decades-long campaign of public education, habitat preservation, and translocations across fragmented habitat to establish new populations, ultimately leading to the successful recovery and, in 2015, delisting of the species.

The iconic North American grizzly bear, one of the most recognizable and charismatic of all megafauna, was listed as a threatened species in 1975. The population was divided into five different Distinct Population Segments, and a recovery plan prepared in 1982. Immediately thereafter, management of the species took a unique turn. In 1983 the U.S. Forest Service, the National Park Service, the U.S. Fish and Wildlife Service, the Bureau of Land Management, the U.S. Geological Survey, and representatives of the state wildlife agencies of Idaho, Montana, Washington, and Wyoming came together to form the Interagency Grizzly Bear Committee (IGBC) and assume joint responsibility for implementing the recovery plan in a unique federal-state partnership.

Subcommittees of technical experts were appointed to oversee the management of each recovery area, and by 2007 the Greater Yellowstone Ecosystem Distinct Population Segment in and around Yellowstone National Park was ready for delisting. A long series of lawsuits have prevented the realization of the delisting that the population richly deserves, but that should in no way detract from the accomplishment of the state and federal partners in conserving this species.

Another grizzly population, the Northern Continental Divide Ecosystem Distinct Population Segment, is almost ready for delisting as well, and managers foresee a time in the not-too-distant future when wide-ranging bears will begin to cross between the two populations. This connectivity, in turn, will only be possible with the cooperation and partnership of private landowners, who are already working through grassroots organizations such as the Blackfoot Challenge to conserve grizzlies and reduce human-bear conflicts. In the case of the grizzly bear, one successful collaboration is inspiring others, and all are bearing fruit in the form of the recovery of this legendary American species.

The owl controversy spilled over into the 1992 presidential election campaign, and Democratic candidate Bill Clinton promised to convene a top-level summit to address the issue, which led to the President’s Northwest Forest Summit in Portland, Oregon on Friday, April 2, 1993. Thereafter, the Clinton administration developed the Northwest Forest Plan, which was adopted in 1994 and governs management of public lands in the Pacific Northwest to this day.

Unfortunately, the northern spotted owl has continued to decline, primarily due to competition from the larger, invasive barred owl. Its eventual extinction is a very real possibility. And it has become the poster child for opposition to the ESA. Whenever a local community is concerned about a potential listing having detrimental economic effects, the owl is invoked and there is fear that that species will be “the next spotted owl.”

The spotted owl saga unfolded at a time when our politics were becoming radicalized, a process that began in the 1990s and has since only accelerated, and become a dangerous cancer gnawing at the heart of American democracy. As evidenced by the northern spotted owl, the Endangered Species Act played a significant role in that politicization of environmental protection. What comes next for America may depend, in part, on whether the ESA can now be used to depoliticize environmental protection, by finding win-win solutions that benefit species and humans alike. The seeds of that, too, were sown in the chaotic 1990s, in regulatory flexibilities and collaborative conservation efforts.

The central purpose of the Endangered Species Act is to conserve species. Its central tension is the great, unresolved question of how? With No Surprises, Safe Harbor Agreements, and Candidate Conservation Agreements with Assurances, the Clinton administration pioneered opportunities for landowners to work with the ESA. They came at a time when others were independently beginning to seek creative, conflict-reducing opportunities for wildlife conservation.

Collaborative conservation, as defined by Executive Order 13,352, issued by George W. Bush in 2004, encompasses “actions that relate to use, enhancement, and enjoyment of natural resources, protection of the environment, or both, and that involve collaborative activity among Federal, State, local, and tribal governments, private for-profit and nonprofit institutions, other nongovernmental entities and individuals.”

Collaborative conservation has a long history in America, dating back over 100 years to when conservationists such as Theodore Roosevelt, George Bird Grinnell, and William Temple Hornaday led successful campaigns to preserve species such as bison, elk, antelope, white-tailed deer, and colorful waterfowl of all sorts. Modern collaborative conservation builds on this legacy, but operates in the framework of widespread species endangerment, degradation of air and water quality, and biodiversity loss. In light of the many challenges that face us, effective collaborative conservation is more essential than ever before.

Collaborative conservation utilizes a diverse toolbox of regulatory, financial, and technical tools to deliver conservation on the ground. These include conservation easements, ESA assurances such as SHAs and CCAAs, federal Farm Bill programs, state and national tax benefits, grants both public and private, in-kind contributions, and more. A thorough discussion of the many programs available to private landowners can be found in Saving Species on Private Lands: Unlocking Incentives to Conserve Species and Their Habitats by Lowell E. Baier [link].

There are myriad examples of successful collaborative conservation programs. Some that involved ESA-listed species can be found on the success stories page [link]. Two examples of early collaboratives show how a group may come together around a specific resource issue but then expand their focus to encompass other issues, including endangered species.

One of the best-known examples of collaborative conservation arose in the Malpai borderlands of southeastern Arizona and southwestern New Mexico. In the early 1990s, local landowners were frustrated by excessive fire-prevention practices of state and local authorities, and they came together to develop a comprehensive landscape-scale fire plan for the entire region, and created the Malpai Borderlands Group, an ongoing grassroots organization that developed and operated (between 1996-2004) the first “grassbank” in the United States, and to this day produces and shares science-based approaches to range management.

Another example is the Blackfoot Challenge, a group of landowners in the Blackfoot River Valley of Montana (the setting for A River Runs Through It). They came together in the 1970s to restore the Blackfoot River, which was one of the most imperiled rivers in the country due to pollution from mining tailings, timber harvest, and grazing practices. The landowners came together to discuss ways to protect their river and their agricultural way of life, and eventually formed the Blackfoot Challenge, a non-profit that works to this day with landowners, leaders, and partners among private, local, state, and federal organizations in order to achieve on-the-ground conservation objectives. The organization works with local landowners, state and federal agencies, and other nonprofits such as Defenders of Wildlife and The Nature Conservancy to manage livestock in ways that are reducing mortality from depredation by listed grizzly bears and gray wolves.

One of the most exciting collaborative conservation efforts today is Conservation without Conflict, a new initiative thirty years in the making. In the early 1990s, in the midst of the northern spotted owl controversy, the Louisiana black bear was listed as a threatened species. In the fact of dire expectations that the species would be “the next spotted owl” or “the spotted owl of the south,” the local forestry industry took decisive action. Engaging state wildlife agencies, landowners, federal scientists, and national experts, the Louisiana Forestry Association hosted a series of meetings that culminated in establishment of the Black Bear Conservation Committee (later the Black Bear Conservation Coalition), which helped develop a recovery plan and manage the species to a successful recovery and delisting in 2016.

Because of this program, and other efforts on behalf of the gopher tortoise, black pinesnake, Louisiana pinesnake, longleaf pine, and other species, the American south has a long tradition of successful, collaborative conservation. On April 20, 2010, the Tucson, Arizona-based Center for Biological Diversity filed the second-largest single ESA petition ever, seeking the listing of 404 aquatic, riparian, and wetland species in the Southeast (the largest petition ever covered 475 species, filed by Forest Guardians – now WildEarth Guardians – in 2007). In response, the fifteen states in the Southeast and the U.S. Fish and Wildlife Service Southeast Region worked together to develop the Southeast Conservation Adaptation Strategy to keep as many of those petitioned species as possible off the lists of threatened and endangered species.

This started a snowball effect of ever-growing conservation partnerships. The National Alliance of Forest Owners (NAFO), which represents landowners that own and manage a total of 46 million acres of forests across the United States, established the NAFO Wildlife Conservation Initiative to partner with government agencies and supports its members as they worked to finance, establish, and maintain young forest, open canopy forests, and healthy riparian and aquatic habitats to benefit wildlife even while managing their lands as working forests to achieve both economic and environmental ownership objectives.

By 2021, collaborative efforts in the Southeast had resulted in 205 species not needing to be listed under the ESA, through a combination of negative 90-day findings on petitions, not warranted 12-month listing determinations, and listing petitions being withdrawn. This success has led to an even-larger group of regional and national leaders to establish a nationwide coalition to promote the idea that voluntary proactive collaborative conservation that recognizes the importance of working farms, ranches, and forests can achieve greater conservation success than mandated regulatory approaches. This is now both an approach to wildlife conservation and a national coalition known as “Conservation without Conflict,” which hired its first staff in 2021 and hosts a growing number of events and resources to promote collaborative conservation across America.

The new trend of mega petitions and ESA deadline lawsuits has driven not only listing actions but also conservation of species. One of the lessons of successful collaborative conservation is that it takes time to establish relationships, build trust, develop a plan, and put it into action. Too often, when dealing with listed and at-risk species, conservation efforts are launched too late. One strength of the new listing workplan approach to the ESA is that it provides longer lead times for effective conservation.

The Lesser Prairie Chicken

Another species that has been the subject of intensive conservation efforts with unfortunately mixed results is the lesser prairie-chicken, a candidate species since 1999. The 2011 litigation settlements set a deadline for the species’ listing determination of 2012, which did not leave enough time for state-led conservation efforts (which had begun in earnest in 2008) to be successful. The five states in the species’ range (Colorado, Kansas, New Mexico, Oklahoma, and Texas), acting through the Western Association of Fish and Wildlife Agencies (WAFWA) developed an innovative, two-pronged approach to habitat conservation. They combined Candidate Conservation Agreements with Assurances for the oil and gas industry with a compensatory mitigation program, known as the range-wide plan, in which companies planning to disturb chicken habitat paid fees which were then distributed to private landowners willing to protect habitat for specified terms. This novel conservation scheme functioned akin to a conservation bank, except that WAFWA, rather than the free market, set the prices for participation by both industry and landowners, and most of the land enrolled was conserved on a temporary, rather than permanent, basis. Together, these two mechanisms raised over $64 million from industry for lesser prairie chicken conservation. In addition, the Natural Resources Conservation Service invested $41.6 million in lesser prairie chicken conservation through its Lesser Prairie Chicken Initiative.

Unfortunately, after a delay the species was nonetheless listed in 2014, due in part to a population crash from approximately 34,000 in 2012 to just 18,747 in 2013 (rebounding to 22,415 in 2014). The listing was then overturned by a federal court in Texas in 2015, and management returned to the states. Unfortunately, both the WAFWA conservation plan and the species struggled thereafter. The end of the threat of the species being listed led to a virtual cessation of enrollments in conservation plans, and a number of companies reneged on existing commitments. The species was again petitioned for listing in 2016, and following a lawsuit a proposed rule listing the species was published in 2021. In 2022, the Center for Biological Diversity filed another deadline suit to force the listing to be completed, and the species was listed in late 2022. The Northern Distinct Population Segment in Colorado, Kansas, Oklahoma, and the Texas panhandle was listed as “threatened” while the Southern Distinct Population Segment along the Texas-New Mexico border was listed as “endangered.”