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Special Status of Wildlife Receives Judicial Approval

December 1976

Citation: ELR 10270

A number of judicial decisions have made 1976 a watershed year in the area of federal wildlife law, presaging increased litigation over the balance to be drawn between animals (particularly where Congress has mandated special consideration) and those forces that tend to promote commercial use of resources at the inevitable expense of wildlife. It is a battle that has been fought for years on the grand scale of the preservationists versus the developers, but now that greater interest has focused on the problem, the conflict has become particularized. And in the process, wildlife is beginning to obtain the protection that Congress has declared it is due.

Progress has not been easy. Although the Endangered Species Act1 became law in 1973, it was not until this year that the important §7, which mandates that federal activity may not "jeopardize the continued existence" of endangered and threatened species, has been given real substance by courts and agencies.2 Concern for the simple survival of the last 40 Mississippi sandhill cranes resulted in blocking an interstate highway from running through the cranes' habitat,3 but the fact that only about 2 percent of the entire population of 700,000 Indiana bats were in such imminent danger allowed a dam project to continue.4 In addition, opponents seeking to halt the Tellico Dam in the Little Tennessee River turned, as a last-ditch effort, to the strategy of preserving the snail darter, a small fish that was discovered in 1973 and put on the endangered species list by the Interior Department in November 1975.5 In the United States Supreme Court, the doctrine of implied federal reservation of rights in water was used to prevent withdrawal of water by a nearby farmer from the Devil's Hole National Monument, which would have exterminated the unique Devil's Hole pupfish, the preservation of which was one of the purposes behind creation of the National Monument.6

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