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Species Act Survives Challenge - for Now

But Congress will get the last word on the ESA

The Endangered Species Act, once thought to be as close to extinction as some of the plants and animals it protects, is proving surprisingly resilient.

The controversial environmental law got a boost of support this week when the US Supreme Court unanimously decided to let stand a lower court ruling that protected an endangered seabird at the expense of logging interests. The ruling barred a lumber company from logging a pristine redwood grove in California that provides nesting grounds for the marbled murrelet, even though the company owns the land.

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The decision sends a strong message to lumber companies that claim their property rights supercede environmental concerns: The ESA comes first.

Environmental activists cheered the decision, predicting it would further set back conservatives who have targeted the act as the epitome of excessive government and an assault on private property rights.

"At a time when some members of Congress want to gut the ESA, this affirmation by the Supreme Court sends a strong message," said Macon Cowles, the lead attorney for the Environmental Protection Information Center, the northern California organization that filed suit in 1993 to halt the logging.

But companies that own large tracts of land worry about the precedent this decision sets.

"We are concerned that this lower-court ruling [which the Supreme Court let stand] could contribute to additional restrictions on private lands," said a statement of the Pacific Lumber Company, owner of the disputed grove in the Headwaters Forest.

The Supreme Court's action effectively reaffirms its decision in the 1995 Sweet Home case, in which it ruled that government agencies can restrict activities on private property in order to prevent harm to an endangered species, including protecting its habitat.

Timber industry officials contend the decision handed down by federal district court Judge Louis Bechtle - which permanently enjoined implementation of a logging plan in the Headwaters grove - went beyond the Supreme Court's intent.

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Pacific Lumber appealed that decision, asserting that the ESA's definition of "harm" should be confined to acts that injure or kill an endangered plant or animal. According to that view, environmentalists and government regulators must prove a clear causal link between changes in the habitat and injury to actual animals and plants.

"Pacific Lumber is insisting the government have a dead body in its hands when it regulates private property," says Bill Snape, legal director for Defenders of Wildlife, a Washington-based environmental group. "The court already believes it has addressed the general issue."

William Murray, of the American Forest & Paper Association, argues that the court's refusal to review the ruling does not necessarily close the door on taking up another case in the future. "I don't think this is the last word at all," he says.

The "last word" may come not from the courts but from Congress. When the Republicans took over in 1994, they quickly took aim at the ESA, putting it at the top of its "Top Ten Worst-Case Regulations." But attempts to repeal or significantly weaken the law have been rebuffed.

THE ESA is long overdue for reauthorization, however, and amendments to the law are now being prepared. According to congressional sources, while the authors no longer intend to challenge the right to regulate habitat to protect species, they want to hold the government to a tougher standard of proof of the link between changes in habitat and the possible extinction of a plant or animal.

Many timber companies have also abandoned efforts to kill the ESA, opting for compromise. In the wake of the Sweet Home decision, they are striking agreements with the government on habitat conservation plans (HCPs). Under these plans, companies are guaranteed that there will be no change in the rules governing their property so long as they protect the habitat for endangered species. Some HCPs are guaranteed up to 100 years.

"[Interior] Secretary [Bruce] Babbitt is pushing those like there's no tomorrow," says Mr. Murray. "People are embracing it because it provides regulatory certainty."

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