The Amy and the Endangered Species Act: Who's Endangering Whom?

• Author: Major David N. Diner
• Pages: 02

1. Introduction

   The Lord giveth ami the Lord takth away, hLt he is 1u)

   Aldo Leapold lo7zgertheonlyonetadoso.'

   The world is witnessing the greatest maSS extinction of piant and animal species in the psSt 250 million years.z Animal extinction is nothing new-approximately ninety percent of all species that have inhabited the earth no longer are aiive.3 What is new is the cause and rate of extinctions. Extinctions have accelerated from a natural "background" level of perhaps a few species per one million years, to a current lwei of appromateiy one species per day.4 Bythe end of this century, the rate could increme to thousands or tens of thousands of species extinguished each yea5 What also is unique is that one species is the primary cause of these extinctions homo sapiens.

   In 1973, the United States Congress acted to stem the tide of animal extinctions by pasing the Endangered Species Act (ESA).6 Finding that "economic growth and development ""tempered by adequate concern and conservation had caused extinctions,"' Con-

   162 MILITARY LAWREVIEW [Vol. 143 gress designed the ESA to conserve endangered species and their threatened ecosystems a The ESA contains a comprehenswe program to identify endangered and threatened species and prohibit their being "taken"0 by any person The ESA also strictly limits federal agency action that may affect listed species, and imposes anaffirmative duty on these agencies to conserve these species.

   The United States Army owns or administers approximately twenty-five million acres of land within the United States,'O making Lt the fifth largest steward of federal lands As the range and lethality of modern weapons have increased, so has the Army's need for training space Army leaders insist on tough, realistic training. allowing soldiers to employ their weapons and vehicles as they would in actual combat. At the same time. efforts to save mom) have caused the Army to close-or propose for closure-scores of Army installations, further reducing available training land

   While the pressure on Army rraming areas mcreajes, so does the number of endangered species Destruction of old-growth and other valuable habitat on pnvate lands has increased the need to recover listed species on federal lands In many C ~ S B E ,

   species have disappeared from private lands, and e m t only in national parks. forests, and on military installations. The Army is on an apparent collision course wLth endangered species and the law that protects them Can it be that Congress intended an "undistinguished wood-peckd'l2 fish, slug, wolf. or tortoise to threaten the training and combat effectiveness of the forces guarding the nation7 Can the

   " .

   species Act and Pllvol land L'se 750 A L I A B A 710. 764 (18821 As of JilY 6. 1882, 727 United States species were on the endangered species hst Of lhere 558 wire mdamered and 169 were thremfened Sineen mecles have been removed from

   ~~~ ~

   the lhst four recoverrd seven hcame enmet. and flvD had h e n Llrfed erroneourl?

   The status of 55 of the llsfed spepeael wa3 ~mprovlna howerer, the BtatYs af 212 Rag declining

   IA 'Picoides barenhi eammonl? known as the red coekaded woodpecker IS a

   small undinringvirhed woodpecker indigenous to the southern Umted Slates Slerra Club \, Lgng. 684 F SUPP 1260 1265 (ED Tex 1988) Wd, Slerra Club * Yeutter, 826F2d428 15th Ca 19911

   -~~

   ~~ ~

   Amy exist in peace with animals while training for war with humans?

   My answer to the latter question is yes. To achieve this end, I propose a proactive and scientific approach to managing endangered species on Army lands This approach adopts an interdisciplinary focus, involvingcoaperative efforts among Army biologists, lawyers, trainers, and commanders. If the Amy commits adequate resources to this strategy, it can accomplish its mision and conserve endangered species as well.

   The ESA is equal parts science and law, and undemanding the ESA requires a working knowledge of biology and the process of extinction. I will explore the science aspect of the ESA by examining the biology of three animals: the red-cockaded woodpecker, the Mexican gray wolf, and the desert tortoise. These species best exemplify the Amy's ESA experience.

   Critical to undemanding this theSis is an appreciation of the desperate problem posed by plant and animal extinctions. The earth

   1s hemorrhagng life, and compromising the stabllity of the global ecosystem--an ecosystem we depend on for existence. Understanding why this is occurring requires an examination of the origins of life on thm planet and the phenomenon of extinction.

   I1 The Science of Extinction

   1. In tkaBeginniny

      The earth was formed from a cloud of celestial gasses about 4.6billion years ago.'3 Life on earth began approximately 3.5 billion y e m ago." The first animals appeared 760 million yean ago; the fint reptiles, 320 million years ago; the first mammals, 220 million years ago; the first birds, 145 million years ago; and the first humans, 300 thousand years ago.16

      During this 750 million-year penod, extinctions have been a fact of iife.16 A "background" or normal level of extinction has

      llSTCvEI M. STIILEI, Exrl~mioh 62 (1887) "MMEIERS,

      =pro note 2 at 4 This life consisted of ample, mgie ceu orgarurms Algae did not develop until Bppmmafely 1 4 biUion yean ago. STAVLE). sqwa note 13,atm

      ~ ~ S T A ~ L E I , supranote 13, at8

      18''EXLmCfln'' u defined w the contracfmn of a 8peeler' geopaphic range and

      p~pulafion to zero. Id at IO Because enlnefl~n mplles m Imperfect creator, the coneepf wk( denied on rchmus sounds until the mid-nineteenth century, when the evidence h a m e compelling Id at I

      occurred at a fairly constant rate af perhaps three or four species per one million years These extinctions were local in character and resulted from normal evolution and competition between species for food, resources, and ecolo5c niches."

      B MassEdinctions

      Separate from the backgmund extinctions discussed above were eras of vastly accelerated species loss called rnm extinctions. These eras were characterized by rapid-in geological terms-loss of life forms on a re5onal or global scale. Entire biological classifications of life were wiped out.ls While the cause of these mass extinctions is unclear, most theories involve global and catastrophic clr-mate 6hanges that radically altered the environment.^@

      During the past 760 million years, nine such periods of mass extinction have occurred.20 One particularly cataclysmic episode occurred at the end of the Permian21 penod During this time, sev-enty to ninety percent of the world's species became extinct.22 Land and sea species were impacted worldwide, although sea species were affected most. Possible causes include radical changes in sea level and salinity, cosmic radiation, and trace element poisomng.z3 This mass extinction lasted several million yean. The extinction rate dur-ing this penod was approximately 190 taxonomic24 families per one million years 25 Through the process of respeaation, the earth eventually was able to rebuild the inventory of species, but it took

      approdmately 110 million years. Not until the late Jurassicze period did the number of taxonomic families equal pre-Permian mass extinction levels.%'

      The most well-known episode of mas extinction occurred in the late Cretaceous period, ending approximately sixty-five million years ago. This was the mysterious period when dinosaurs became extinct. For more than 100 million years, dinosaurs and other great reptiles were the dominant form of life on earth. Great herds of dinosaurs roamed what is now the western United States, rivaling in numbers and diversity the herds of mammals that populated the grasslands of Africa early in this centurx28 Mammals existed, but were small, inconspicuous, and poorly developed by modern standards-living in terror of preying herds of carnivorous dinosaurs.

      Despite their dominance, the dinosaurs disappeared in the geo. logical blink of an eye. Mammals escaped, however, virtually

      The total extinction of the dinosaurs allowed the small, rodent-like mammals to nse to ascendancy-in a process called radiated speciation-and to colonize the world. Without the extinction of the dinosaurs, man would not have evolved.30

      Many theories attempt to explain the demise of the dinosaurs and other creatures that disappeared during the late Cretaceous mass extinction. They range from terminal constipation,~L to increased volcanic activity, to acid rain, to catastrophic impactswith celestial badies.32 Even during this period of mass devastation, when

      asme Juremc perlod occurred from 213 million years ago to 144 mllhn years

      z'ld. at45*.ST~YLEI,svpramfe 13,af 128-31 "Jablonski. svpranale IT at47. 3 Y S ~ ~ ~ ~ n l , mpranofe 13. sf 132

      s l P ~ u ~

      & ANNE EBRLICR, E x n m m 28 (1881) (heremafter EHRLICH 8 EHRL~CH~

      Thv. theow Pastulafes that the ev01uLl~n of flowcnng plan- enured herbivorous drnosaum to die of eonntlpatlon, leadlng Lo lack of prey and subrequenf st-alim for

      CsrnlVOTo~sdinogun ~3 well. As appeahng ~3 IIu, the theory daes not explilln the

      bmulfane~w demue of creatures that a k oeeumd dunng the late Ciefaceou6

      m w extinction episode

      .The eelesfial lmpaef theory mvoives the cdudon with the earth of a large meteor, prohnbly 7-14 miled m dlameler The impact. equivalent m energy Lo hundreds of hydrogen bomb, threw ms~lveamounu a1 dust mi0 the atmosphere. The dust blocked out the sun'(/ energy and eaured a signllleanf decree In the emhstemperature, wlth CalPstrophic comqueoees lor the dinosaun The presence of iri-dium, an extremely rare mmeml, m the earth Igeolomeal record 81 the end of theCretaceoua penod balatera this fheon Indium Is known Lo emat YI abundance inmetem %e STANLEY, supra note 13: EBRL~cH & EHRLICH.sur0 note 31, Garland RUpehureh Jr, ~ e s m l E n v l m ~ 1

      C h a w odEz%irlumPallons ai the

      C7eLacBm-Wllaw Brmndory, Nmfh A m o , m MASS EmYmmhS P ~ E S B E S

      ago, apenodof6Smlihnyean. Jahlonsk~,svpranafelT. si8

      EYlDEhCE 18S(StephenK Daoaunned...