To Keep Every Cog and Wheel: Preserving Biodiversity Through the Endangered Species Act's Protection of Ecosystems

• Author: Matthew D. Bockey
• Position: J.D. 2012, Capital University Law School
• Pages: 133-176

TO KEEP EVERY COG AND WHEEL: PRESERVING

BIODIVERSITY THROUGH THE ENDANGERED SPECIES

ACT’S PROTECTION OF ECOSYSTEMS

MATTHEW D. BOCKEY*

I. INTRODUCTION

It has been called the Lord God Bird1 and described a s “the avian

equivalent of a tuxedoed aristocrat.”2 Alexander Wilson, “the father of

American ornithology,”3 once elevated it to a noble status.4 Wilson

described the bird as “the sole lord” of its native habitat,5 and as “hav[ing]

a dignity . . . superior to the common herd of woodpeckers.”6 With a

nearly thirty-one-inch wingspan, the ivory-billed woodpecker was the

largest woodpecker in North America.7 Due to its large size and

“spectacularly patterned” plumage, the ivory-bill was much sought after by

birders.8

Ivory-billed woodpeckers historically lived in old-growth forests of the

southeastern United States and Cuba.9 The ivory-billed woodpecker was

never a very common bird.10 However, by the middle of the twentieth

century, following decades of habitat destruction,11 the ivory-billed

woodpecker had become the “Holy Grail” of North American birders.12

Copyright © 2013, Matthew D. Bockey.

* J.D. 2012, Capital University Law School. I would like to thank Valerie Swanson for

all of her feedback and advice while writing this Article. Also, thanks to Professor Dennis

Hirsch and my sister Cari for reviewing this Article. Finally, thanks to my family and

friends for their support and encouragement.

1 Mel White, The Ghost Bird, NAT’L GEOGRAPHIC, Dec. 2006, at 143.

2 JEROME A. JACKSON, IN SEARCH OF THE IVORY-BILLED WOODPEC KER 2 (2006).

3 Id. at 44.

4 EDWARD O. WILSON, THE FUTURE OF LIFE 104 (2002).

5 JACKSON, supra note 2, at 44.

6 WILSON, supra note 4, at 104.

7 JACKSON, supra note 2, at 2.

8 Id.

9 The Search for the Ivory-Billed Woodpecker: Ecology and Behavior, CORNELL LAB

ORNITHOLOGY, http://www.birds.cornell.edu/ivory/aboutibwo/life_ivorybill_html (last

visited Sept. 11, 2012).

10 JACKSON, supra note 2, at 2.

11 WILSON, supra note 4, at 104.

12 JACKSON, supra note 2, at 1.

134 CAPITAL UNIVERSITY LAW REVIEW [41:133

Despite numerous efforts, the last confirmed sighting of this spectacular

creature occurred in 1944.13 Today, all that remains are some 400

specimens contained in scientific collections.14 The noble ivory-billed

woodpecker was driven to extinction after its habitat was destroyed for

human development.15

Historically, the ivory-billed woodpecker never occurred in high

concentrations;16 however, humans have driven to extinction species that

once were very numerous.17 The passenger pigeon was once likely the

most abundant bird on the planet.18 In the early nineteenth century, at least

one of every four birds in North America was a passenger pigeon.19 John

James Audubon once witnessed a massive flock that took three whole days

to pass overhead.20 Despite these massive numbers, the passenger pigeon

succumbed to overhunting and habitat loss.21 The last known passenger

pigeon died in captivity in 1914.22

Unfortunately, extinction is not only a thing of the past.23 Humans still

cause extinctions at alarming rates today, and it is commonly accepted that

we are in the early stages of the earth’s sixth great extinction event.24

Scientists estimate that extinctions are occurring somewhere between

1,000 and 10,000 times the rate before humans began exerting significant

environmental pressure.25 These extinctions affect all types of life,

13 White, supra note 1, at 143.

14 JACKSON, supra note 2, at 74.

15 WILSON, supra note 4, at 104. Credible reports surfaced in 2005 that the ivory-billed

woodpecker had been rediscovered. White, supra note 1, at 147. However, subsequent

searches found no birds, and today the species is commonly believed to be extinct. See

generally id. at 143–57.

16 JACKSON, supra note 2, at 2.

17 See Paul R. Ehrlich, David S. Dobkin, & Darryl Wheye, The Passenger Pigeon,

STAN. UNIV. (1988), http://www.stanford.edu/group/stanfordbirds/SUFRAME.html.

18 Id.

19 CHARLES C. MANN, 1491: NEW REVELATIONS OF THE AMERICAS BEFORE COLUMBUS

365 (2d ed. 2011).

20 Id. at 364.

21 See id. at 365.

22 Id. Following the passenger pigeon’s demise, famed conservationist Aldo Leopold

dedicated a monument to the pigeon near its greatest recorded nesting site where 1.5 million

birds were slaughtered. Id. A plaque on the monument reads: “This species became extinct

through the avarice and thoughtlessness of man.” Id .

23 MITCH TOBIN, ENDANGERED: BIODIVERSITY ON THE BRINK 1 (2010).

24 Id.

25 WILSON, supra note 4, at 98–99.

2013] PRESERVING BIODIVERSITY 135

including fishes, amphibians, insects, mammals, and plants.26 Every year,

approximately one of every hundred plant and animal species goes

extinct.27 This converts to an average of three species per hour.28 At this

rate, 15%–30% of all wild species may go extinct within a single human

generation.29

In an attempt to count er the extinction cri sis, Congress passed the

Endangered Species Act (ESA) in 1973.30 The ESA has had a polarizing

effect on the American public.31 Some have lauded the ESA as “the

world’s toughest environmental law.”32 Others have criticized it for

interfering with private property rights.33 Opposition to the ESA took a

serious turn in the mid-1990s. Following the Supreme Court’s landmark

decisions in United States v. Lopez34 and United States v. Morrison,35

opponents began mounting Commerce Clause challenges to the ESA.36

Challengers argued that the ESA was unconstitutional as applied to purely

intrastate species with no known commercial value.37 To date, six cases

have reached federal courts of appeal.38 Though none of these challenges

have been successful, the circuit courts of appeal have been unable to agree

on a single rationale for upholding the ESA.39

Given this confusion, this Comment enunciates a single rationale by

which the ESA can withstand Commerce Clause challenges. Part II briefly

examines the ESA and the Supreme Court’s Commerce Clause

jurisprudence prior to Lopez and Morrison. It then examines Lopez and

Morrison, as well as the ESA challenges decided under the Lopez and

Morrison framework. Part III considers the Supreme Court’s decision in

26 Id. at 98. See also TOBIN, supra note 23, at 35.

27 JOE ROMAN, LISTED: DISPATCHES FROM AMERICA’S ENDANGERED SPECIES ACT 35

(2011).

28 TOBIN, supra note 23, at 1.

29 ROMAN, supra note 27, at 35.

30 16 U.S.C. §§ 1531–1544 (20 06).

31 TOBIN, supra note 23, at 3.

32 Id.

33 See ROMAN, supra note 27, at 1.

34 514 U.S. 549 (1995).

35 529 U.S. 598 (2000).

36 See, e.g., Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003).

37 See, e.g., id. at 1071.

38 See discussion infra Parts II.C, III.B.

39 See discussion infra Part II.D.