The MacNeil/Lehrer Report; Endangered Species

ROBERT MacNEIL: Tonight, the story of a fish that went to the Supreme Court, a bird which diverted a highway, a toad which threatened a shopping center. We haven`t gone bats, but some people think the federal government has, with its passion for protecting the obscurer items of our fauna and flora.

Good evening. If anyone had any doubt about the generosity and compassion of the American spirit, let them note that a subcommittee of U.S. Senators, a subcommittee of Congressmen, and the Justices of the Supreme Court are spending their time and the taxpayers` money considering the health and welfare of bats, toads and small fishes. Let them also note that some Americans think that concern for such creatures is so daft and has gone so far that it`s stopping the mighty engines of progress. In brief, they should watch the attempts in Congress this week to rewrite the Endangered Species Act of 1973, and the labors of the Supreme Court next Tuesday in the case of the snail darter versus the Tennessee Valley Authority. Tonight, are some endangered species endangering our sense of proportion? Jim?

JIM LEHRER: Robin, there really is an official U.S. Government Endangered Species List, and this is it. It`s compiled and distributed by the Department of Interior`s Fish and Wildlife Service. As of today there are 183 different species on it -- mammals, birds, reptiles, fishes, insects, clams, amphibians and plants. It`s usually the stories about some tiny minnow halting a multi-million dollar construction project that we hear about. But there are some very significant higher forms of life on the list, too.

The symbol of our nationhood, the American bald eagle, is on it. He made the list just this year, when it was estimated that there were only 700 active bald eagle nests still left in the lower forty-eight states. There is the manatee, Florida`s plant-eating mammal of the deep. And the Canisrufus, or red wolf, which now lives mainly in Texas and Louisiana. Wildlife officials say he`s almost had it because of cross-breeding with coyotes. In order to maintain pure red wolves it might be necessary to take the few remaining ones off to an island somewhere. Others on the list include a native of Oregon and Washington State, the Colombian white-tailed deer, and one of the most feared and written-about creatures in all of North America -- the great brown, or grizzly, bear. And one more -- the most scarce and endangered species in the country: the black-footed ferret, an inhabitant of the Western states.

But many of the species which come into conflict with man and his projects are less well-known to most of us. So some introductions are in order. First, meet the Bufo houstonensis, commonly known as the Houston toad. NBC`s "Weekend" program brought him and his situation to national attention a few months back. The situation was this: a developer wanted to build a shopping center on a piece of undeveloped land in the Houston suburbs. Since federal funds were involved through various loans, the government said wait a minute, the proposed site may be a habitat for the extremely rare Houston toad -- a shy, secretive creature. Only 1,500 of these toads are believed to still be in existence, and the problem is that they mostly live underground and it has been many years since one has actually been seen.

The story took on lovely proportions as the bulldozers remained in waiting while government biologists searched in vain for the toad or some sign of him. Finally, after months of controversy, the government con cluded in February that the site probably is not a habitat for the Houston toad after all. The way was thus cleared for the shopping center. Biologists are currently searching other areas in that south Texas region for the Houston toad; at last report, none have been found.

MacNEIL: Then there are the Indiana bat and the gray bat, two species in the Midwest. The gray bats have personalities that are anything but gray. They live in caves upside down, have extremely active sex lives, and recover from their exertions by eating huge quantities of mosquitoes and mayflies. If left alone, they live to very advanced ages, happily controlling the insect population. But they are not left alone. People obsessed with ideas of vampires and such like, love going into the caves and massacring the bats. The Army Corps of Engineers wanted to build a dam on the Merrimac River in Missouri. Bat lovers said the caves would be flooded and the reservoir created would bring more batkilling tourists. The engineers offered to put gates on the caves, but the issue collapsed when President Carter put the dam on his hit list.

In effect, the bats won.

LEHRER: There`s the Mississippi sandhill crane, a bird with interesting habits. The males court the females by throwing sticks in the air. Then they use those sticks or others to construct elaborate nests. The father sits on the egg with the mother to help incubation along, and he stays with her after the chick is hatched, always protecting the young and the nest with zest and determination.

Another kind of determination is what caused his problem with people. The Mississippi sandhill crane can`t -- or won`t -- live anywhere except in a particular area of Mississippi. The government wanted to build an interstate highway interchange right in the middle of that area. A lawsuit was filed and the crane won, but afterward a compromise was struck; the location of the interchanged was changed slightly, and an extra 2,000 acres was bought around it for the crane`s habitat.

MacNEIL: If it`s difficult to love bats and toads, consider the reputation of the furbish lousewort. This humble flower, rather like a dumpy snapdragon, was thought in old folklore to give lice to cattle. It doesn`t, but it has suffered in this country as its riverbank habitats changed, and it was thought to be extinct. Then large clumps turned up on the banks of the St. John River in Maine, just where they want to build the Dickey- Lincoln hydroelectric dam. Lousewort admirers are trying to get it declared an endangered species, the first flower to be so honored, but no luck yet. It`s a question of which gets there first -the dam into construction, or the lousewort into federal protection.

LEHRER: The most famous of all the endangered species right now, of course, is the snail darter. Its fate will be argued before the U.S. Supreme Court next week. The snail darter is a tiny fish, a member of the perch family which feeds almost solely on freshwater snails. They are found only in the waters of the Little Tennessee River, twenty-five miles below Knoxvillle -- right where the $127.5 million Tellico Dam is ninety percent complete. When construction of the dam was first authorized in 1967 there was no such thing as an Endangered Species List. By 1973 there was. The snail darter went on it, but the dam was already then about half finished. Suits were filed to stop it. A federal appeals court ruled in favor of the darter over the dam, and all construction has now been stopped, awaiting final word from the highest court in the land.

There`s also been an interesting side development to the snail darter story. Several weeks ago officials attempted to move some of the snail darters to a safer place further back up the river. But the nets they used had some kind of fish-killing poison in them. Ninety-eight of the little fish died. The mystery of how the poison got on the nets remains unsolved. Thus far the Supreme Court has not been asked to resolve that issue.

MacNEIL: There`s some division on the snail darter question in the Carter administration. The Attorney General himself will take the case of the U.S. Government, on behalf of the Tennessee Valley Authority, to the Supreme Court on Tuesday. But other parts of the Executive Branch -- like the Department of the Interior and the President`s Council on Environmental Quality -- are squarely in the camp of the snail darter. Charles Warren is chairman of the Council on Environmental Quality. Mr. Warren, I guess to most people it`s very easy to understand the value of protecting species like bears and eagles. Why is it important to protect the small snail darter?

CHARLES WARREN: Well, Congress, when it passed the Endangered Species Act of 1973, made a determination that man`s activities were such as to constitute a threat to the habitat of species of all kinds. And in the Endangered Species Act they determined as a policy for this nation that the Department of Interior, through its Fish and Wildlife Service, would make a determination of what species were threatened and to identify those species and to put them on the list as has been shown. Thereafter it would be the responsibility of all federal agencies and departments to take necessary action to preserve the species identified and to preserve their habitat. The species, when threatened, indicate that a life-sustaining environment has been or is about to be lost and destroyed, and the act recognizes that the loss of that environment may in turn have some deleterious consequence for the life support mechanism for human beings as well. So it`s those considerations that went into the enactment of the act, and I think for the most part they were proper ones.

MacNEIL: Now, if any species -- as you yourself pointed out in a speech not long ago, there are probably thousands of things we haven`t even discovered yet -- if any species was seen to be endangered, would it be worth supporting or protecting, or are some species just not worth it?

WARREN: Well, we just don`t know. Some species may be extremely important to the future of mankind; one can only dwell on what the field of medicine would be like without penicillin, which was, as we know, a very important medicine which was developed from a very low form of bacteria, from mold. It may well be that in the interaction of species one or more may in the future play a very important part to the well-being of man himself.

Let`s take a look at the snail darter. The snail darter was at one time prevalent through the river areas of the Tennessee Valley. Its habitat required for its sustenance was a free-flowing water, shallow, over cobblestones. It was the natural predator of the snail, which figured throughout the river basin. Gradually, as the rivers of the Tennessee region were dammed up, that habitat became lost and the species narrowed in numbers until finally, today, we have the last thirty-three miles of the rivering area of the Tennessee region. It is these thirty-three miles in which the snail darter presently habitates.

MacNEIL: But answer me this, Mr. Warren. Why would it be a loss to us if the snail darter did get wiped out and followed those other species into extinction?

WARREN: Let`s take a look at the thirty-three miles that I was about to describe. The thirty-three miles are, as I say, the last free running river water in the Tennessee region. It happens to be one of the finest trout streams in the region, in the Southeastern United States; it is the last of the facilities for flowing-water recreational purposes; in other words, it`s a habitat which is of extreme importance to human beings in that area -- it serves a very important purpose. And it is that purpose which has been ignored, for the most part, in the decisions which led up to the construction of the project or the decision for the project itself. So although we look at the habitat as the snail darter has identified for us, we do recognize that that habitat serves a very valuable purpose to mankind.

MacNEIL: Would you say there is no such thing -- I mean, people are saying, Look, some of these cases are just silly. Imagine a little creature holding up a multi-million dollar dam -- are you saying that from your point of view there`s no such thing as a silly case?

WARREN: No, I`m not saying that at all. But I`m not sure that I could give you an example of a silly case. What I am saying is this: in this instance the Congress has enacted a very wise and prudent pol icy in the Endangered Species Act. It says, as I indicated, that federal agencies shall do nothing to interfere with the existence of a species which is endangered. The act is very firm; it permits no loopholes, although it does permit a consultation process so projects can be redefined to preserve the species. Now, if there is a conflict between a particular project and the continued existence of a species, then that conflict should be determined by Congress. I can think of no other place where that decision should be made; I can think of no other group of citizens who should make that decision than Congress itself. They`re the ones who support the policy, a policy which I support unequivocally, and they`re the ones who should determine which interests shall prevail in the event there is a conflict which is in fact irreconcilable.

I`d like to point out that in the administration of the act itself since 1973, when it went into effect, there have been over 5,000 inquiries and consultations concerning the application of the Endangered Species Act. All of those consultations have been resolved to the satisfaction of the parties concerned save three. Three went to litigation; two of those three litigated cases were settled in the course of litigation. Only one -- that involving the Tellico Dam and the snail darter -- remains. That does not indicate to me that the act has abused the process or that the act requires amendment. It is one which I think is proper for this country to support and give time for its full implementation.

MacNEIL: Okay. Well, we`ll pursue those thoughts in a moment. Thank you. Jim?

LEHRER: Yes, because legislation has been proposed in Congress to allow some exemptions within that Endangered Species Act, particularly for projects like the Tellico Dam, begun before a threatened species is officially declared endangered. And a primary mover in the House is Congressman Robin Beard, Republican of Tennessee. Congressman, Tellico Dam is not in your district, but there is a dam that`s in your district that has a similar problem, is that correct?

Rep. ROBIN BEARD: Yes. The Duck River Dam in Columbia, Tennessee, is in my district, and I want to make a point real quickly as to the threat we see - - in my own particular dam, but also the Tellico Damand not to defend the pros and cons of the dam but just to give a little background real quickly as to how inflexible this piece of legislation is. The snail darter was discovered by an individual after the dam was already well over half completed; millions of dollars had already been spent. The snail darter was placed on the Endangered Species. In court they placed three variations of a snail darter in front of the doctor, and he was not able to distinguish which one was the variation of species that he said that this area was a critical habitat for. As a matter of fact, there are 116 variations of the snail darter species. So I think that shows some of the horrendous possibilities that could be involved here.

Now, in my particular dam, the Duck River Dam, it`s over fifty percent complete, millions of dollars have been spent, it`s gone through all the environmental impact studies, it`s gone through all the Congressional demands as far as cost-benefit ratios; there have been controversies as far as some individuals want to stop it. They were unable to through the normal process. Now they have found a variation of the species of the pearly mussel, and they are threatening to take this to court and I think it`s just a matter of time as to how the Supreme Court rules.

LEHRER: Well, why should Columbia Dam in your district and Tellico be exempt from the Endangered Species Act?

BEARD: Well, first of all, they didn`t even have the opportunity of the consultation process; it was not in effect. The millions of dollars were already appropriated and authorized at that particular time so that the dam was already getting towards completion.

LEHRER: In other words, if the project is already under construction at some stage, then you feel it ought to be exempt no matter what endangered species might be discovered subsequently.

BEARD: I think that`s got to be one of the approaches. But my piece of legislation states that there would be an analysis to see if it is important enough to where action needs to be taken in the other way. But the law is not flexible; there are no loopholes, as Mr. Warren pointed out. It`s inflexible. The needs for flood control are still there, as has been pointed out--people have lost their lives the need for a water system is still there. We look at the Colorado Basin situation, where they were ordered, as a result of pollution problems in their water systems, to do something to correct it. They have started developing plans and projects to correct it; there are 127 interrelated separate projects. This whole ball game could be wiped out or put aside because they have found endangered species in certain areas.

LEHRER: Do you think that this whole concern over endangered species has gotten out of hand and there`s a danger of a backlash as a result of it?

BEARD: Oh, I think without any question; I know Mr. Warren mentioned that Congress made the determination. This particular piece of legislation was voted on -- there were only twelve people who opposed it. It was voted and passed under suspension. That means there was only one hour debate, with no possibility of amendment. And I voted for it. And I think all the members thought of things as the blue-gray whale, they thought of things as the grizzly bear and some of the -- the bald eagle, or whatever the case may be, and I don`t think any of them had any idea that we`d be dealing with subspecies that literally could stop every single project in this country, if you wanted to ...

LEHRER: Every single project?

BEARD: A noted scientist from Cornell whose qualifications are not to be questioned stated that you give me five biologists, any five top biologists in the world, and I can stop every project in the Southeast, without any question.

LEHRER: All right, Congressman. Robin?

MacNEIL: Mr. Warren, is that a danger, that these sort of nuisance -- or cases that are not so obvious to laymen, or perhaps to politicians or people with economic interests -- may actually endanger the very purposes of the act itself?

WARREN: No. If -- I say that firmly -- if people understand what is at issue in this particular instance. As I indicated earlier, since the passage of the Endangered Species Act there have been 5,000 consultations between the Fish and Wildlife Service`s Office of Endangered Species and the various departments of the federal government responsible for agency project construction. All of those consultations were worked out to the mutual satisfaction of the project agency and the Department of Fish and Wildlife. I repeat, only three went to litigation, two of which were settled in the process of litigation. That does not appear to me to be a horrendous history of malimplimentation of this particular act. I would like to also say with respect to this particular case, the only one in litigation and which will be argued before the Supreme Court Tuesday, that if TVA, the project agency in this particular instance, had obeyed the law, we probably would not have had the conflict or the furor that we have today. They had an opportunity for a consultation process, the consultation process that took place with the Department of Interior officials. Department of Interior identified the possibilities for transferring the habitat, but TVA was unwilling to set aside sufficient time to determine if that habitat could be created successfully. Now, instead of arriving at some decision of that kind, they informed Congress that the project was not in violation of the Endangered Species Act, and continued, with that misrepresentation, to construct this project. They have ignored the law, they have apparently willingly flaunted its express provisions. Just let me read to you the very brief operative language of the act:

"Federal departments shall take such action necessary to ensure that their actions authorized, funded or carried out by them, do not jeopardize the continued existence of endangered species or result in the destruction or modification of habitat." Period. Very clear.. Now, if Congress wanted to exempt projects already being constructed at the time this was passed, there are means by which it could have done so. Legislatures throughout the states, including Congress, know the technique of grandfathering in exemptions. If they wanted to exclude from the provisions of this act projects such as Tellico Dam then under construction, they could have had a grandfather clause exempting projects then under construction. There would have been no problem. Congress did not.

MacNEIL: Can I ask each of you just one quick question? Congressman Beard, would you be, in this case, satisfied to see the snail darter become extinct because the interests of the dam are more important?

BEARD: I have yet to see anyone prove why this one of 116 variations of a species is extremely important to our society. I must take issue, if I may, with the -- Mr. Warren keeps referring to the 5,000 consultations that makes it look like the law was working. I don`t think he`ll disagree with me when I say that many of those consultations were strictly from phone calls, just little phone calls. One particular situation where I know it was not worked out to the satisfaction of both parties is in the Marine Corps, where I just returned from active duty attached to the tank battalion, where a great deal of their effective training area, where we`re training young men to fight in combat, has been removed from the training area because they have found a species of the red-headed woodpecker. And finding out, we have found that this is affecting many of the training areas throughout the country. So they weren`t satisfied, they`re very upset; but yet they are caught in the middle.

MacNEIL: Okay, thank you. Jim?

LEHRER: Mr. Warren, the head of the Wildlife Service, who very much is in favor of the Endangered Species Act with no exemptions or whatever, did say in a speech the day before yesterday that there is a danger of obscure endangered species being discovered solely for the purpose of killing some project, the plant and animal are then quickly forgotten once the project is killed; the motives are actually based on other purposes. Is that a danger?

WARREN: I don`t believe so, for the reason I indicated earlier, that there is always a remedy in these instances, and that remedy is with Congress. Congress has set forth a wise and prudent policy. They did not know at the time they passed the act what species were endangered, so they set forth a general category and said in any of these situations you act to preserve this species, any species that`s endangered. Now, if an agency finds that by its actions it cannot do so, then its remedy is to go to Congress and advise Congress. If the dispute cannot be resolved, and if Congress then determines that yes, this red-headed woodpecker -- which you, apparently, are willing to wipe out rather easily -- is not worth moving an Army base elsewhere so that these maneuvers can take place, then they don`t have to. But it`s a decision which Congress should make; it`s a very important decision.

LEHRER: Congressman, he`s right isn`t he? I mean, this is Congress` decision.

BEARD: Yes. And you`re going to see a decision made. And what really concerns me is the inflexibility shown by individuals who are wrapped up with this act, because what you`re going to see is, unfortunately -- I think the concept of the act was good; I think it`s needed -- but unfortunately what`s going to happen is, you`re going to see a threat to the entire concept because of reaction from members of Congress and from the people of this country who say this has gotten out of hand, and because we don`t find people who are willing to sit down and say, We passed a law - - we pass many laws...

LEHRER: Are you talking about Mr. Warren?

BEARD: I think Mr. Warren, from indications, has stated that he is inflexible, that he feels the law was perfect the way it is. It`s imperfect; I don`t know where he`s been. Many people are concerned; many members of Congress, who will be voting on the reauthorization of this bill, are concerned. I don`t want to see the bill gutted, but I do think that you need to sit down and start trying to find a more reasonable method, because you`re going to see the whole bill threatened.

LEHRER: Mr. Warren?

WARREN: I think that the processes provided by the bill are adequate, they are presently in progress. If the Supreme Court determines...

LEHRER: He says you`re not flexible at all.

WARREN: The act is not inflexible. It sets forth an objective about which it`s very inflexible, but it sets forth a very flexible process in order to achieve that objective, i.e., the consultation process between the Department of Interior and the project managers. With a record of 5,000 successful consultations, whether over a phone call or person to person, I don`t care; they are undisputedly successful. Only one is being litigated, and that is being litigated because of the inflexibility of the TVA to obey the law. They did not obey the law, and that is their problem.

LEHRER: Is that their problem? Ten seconds.

BEARD: TVA is being ordered by Congress, saying, You will complete the project, here`s the money, you go out and build that dam. Here is an inflexible agency. I don`t think one single-line agency should have the right to determine what stops and what starts.

LEHRER: Having resolved it, Robin, it`s all yours.

MacNEIL: I`m glad you sorted all that out.

(General laughter.)

MacNEIL: Thank you both very much. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That`s all for tonight. Jim Lehrer and I will be back tomorrow night. I`m Robert MacNeil. Good night.