Nick Mott
Appearances
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Listing decisions, it said, must take into account only the best available science, not the economic costs and benefits of protecting species. And just three days before the page turned from 1973 to 1974, Richard Nixon quietly signed the Endangered Species Act into law. The American public and media mostly didn't take notice. It got just one sentence in the New York Times.
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And even lined up with that armada of laws, many lawyers and historians and activists I've spoken with call the Endangered Species Act the strongest environmental law in the world. Today, it protects more than 2,000 species. At the time I'm recording this, there are 18 protected species here in Montana. And there are threatened and endangered species in every state. Texas has 111.
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Species do die off naturally. History is punctuated by mass extinctions. Often, catastrophic natural disasters are the culprit. An asteroid hitting Earth, say, or a massive volcanic eruption. But today, scientists estimate species are going extinct as much as 100 times faster than what would occur naturally. Some call this a sixth mass extinction.
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And as we collectively spewed greenhouse gases into the air and paved and plowed over vital habitat, this one's driven by us, humans. In short, the engine pushing those die-offs is on overdrive, and we're at the helm.
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At the time, you're saying builders and developers and oil and gas drillers and just all these interests had no idea what it would mean for what they do. Is that right?
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That's exactly right. Like at the time, everybody thought saving wildlife sounded like a good idea. And it's an intuitive idea, right? Like let's save the whales, let's save the grizzlies, let's save the wolves. But what nobody knew was just how large the extinction problem was. And it turned out that really soon after it got passed, the Endangered Species Act got its first test.
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And it wasn't from one of those big charismatic animals. It was actually from this little teeny tiny fish that nobody had ever heard of. And that battle went all the way up to the Supreme Court.
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No, no, no. So let me set the stage a little bit. It's back in the 70s. This agency called the Tennessee Valley Authority, they've been working since the New Deal to build dams, generate power all over the southeast. They want to build this one dam called Teleco Dam on a river in Tennessee.
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And a lot of people aren't happy about it, and it stalled for a number of years through other environmental legislation. And one day, this biologist and professor was surveying the river, and he came across this little tiny fish, and he thought it looked weird. He'd never seen anything like it. And he was an ichthyologist.
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And it turned out that this was the only place that this fish had ever been discovered. So likely the only population of this little tiny fish, which he ended up calling a snail darter, existed anywhere in the world. And this law student finds out about it. And he wonders, like, could the Endangered Species Act be used to stop the dam? And he's writing a term paper in his environmental law class.
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He goes to his professor and he's like, hey, is there something there? And they end up working together to get the species listed, file a lawsuit against the federal government, and they take it all the way to the Supreme Court, who decides that, yes, the Endangered Species Act can be used to stop a project. It has teeth.
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And it doesn't matter if it's a big charismatic thing, you know, your whales or grizzly bears, or if it's a little tiny snail darter.
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You know, growing up like you, I was a bit of a city slicker. I grew up in the suburbs of Kansas City, and this stuff wasn't directly relevant to my life. But after college, I moved out west. I was doing conservation work for the government, meaning things like trail building and cutting down trees and planting native plants.
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Well, they did in the Supreme Court. But as politics happened, it was a lot more complicated than that. There was eventually a bill proposed, a big federal budget bill. And there were a couple sentences tacked on at the end by Tennessee's congressional delegation that basically just said the dam will be built no matter the law. And so the dam, it exists today, despite the Supreme Court.
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The snail darter doesn't exist in that river anymore. But they did end up discovering it in other places and they tried to relocate it in that whole process. So interestingly, the federal government actually said the snail darter had recovered just a year or two ago even though that dam had been built. But the dam, it did mean no more darters there in the Little Tennessee River.
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That's exactly right. Some say that these lawsuits are using species like a tool to actually stop something else entirely. But at the same time, this is one of our most powerful environmental laws and is essentially the only environmental law that has teeth that can say you cannot do this.
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Other laws like the National Environmental Policy Act are more procedural, saying you've got to check the right boxes, you've got to do the analysis, and then you can go forth. But this one says you can't do this.
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I mean, there's so much to say on this. So the first thing is like back in the 1970s when the ESA got passed, there was just a lot we didn't know about ecosystems and about wildlife and about our impact on ecosystems. So like climate change, for instance, we had no idea collectively of this enormous impact we were making on the natural world.
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So there's this huge mess that we really got to figure out collectively about how we can reconcile our own impact on the world and preserving ecosystems.
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Exactly. Like so much of politics, like so many environmental issues in particular, this has gone the way of everything. It's Republicans versus Democrats. For decades, actually, both sides have been trying to propose changes to the law, but neither side has been able to get anything done. So the Endangered Species Act is just kind of stuck in this place somewhere in the middle.
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And in that time, it seemed like endangered species issues were everywhere I looked. So I was trained on what to do if I came across a desert tortoise. And in diners, ranchers would sort of accost me about if I was on a tortoise crew because I was wearing a government shirt. I was –
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And this comes back to grizzly bears in a lot of ways too. Like the government has tried to delist grizzly bears two times in the past, both times conservation groups sued and that got overturned in court. They're expected to make a third decision coming up likely in January. And every time we see it sort of – take on this partisan spin.
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And to me, we really need to move beyond the partisanship around these issues and actually start talking about the substance behind them and figure out how we can coexist, how we can both exist on the landscape, like people and bears.
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cutting down trees to restore habitat for animals like the sage-grouse, which weren't listed yet, but there was this big debate about if they would be. And I spent weeks in Death Valley, too, where I saw this tiny population of fish that exists only in this one little tiny pool that inspired one of the biggest water rights debates this country's ever seen.
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It just seemed like everywhere I looked, these Endangered Species Act debates were looming.
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So Grizzlies exist really close to my house and they they're the ones that they say in certain situations you should play dead. OK, but it's a lot more complicated than that.
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So I've had a handful of encounters, a couple that are really, really scary. So just about like two days after the first episode of the podcast came out. Which was about grizzly bears. I was out on a trail like less than an hour from my house with a friend. We were on sort of a trail run hike type thing going up a mountain. And we both had bear spray on our running vest. So on our chest.
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So bear spray is kind of like a big can high powered pepper spray. It can spray out to 30 feet. You spray it at a bear charging you supposed to stop it in its tracks. So I was 15 feet ahead of my friend and we came around what turned out to be kind of a blind corner and I heard something. So I looked up and I saw these two silhouettes, a big silhouette and a little silhouette.
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And immediately within a second or two, the big silhouette gets down on all fours and I see the sun hit its back. I see brown fur. I realize it's a grizzly and her cub, which is basically the worst situation you can be in in terms of a grizzly encounter. And this bear, she got down on all fours and she just started running at me and she was less than 50 feet away.
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So this all happened in a matter of seconds, but it felt like an hour. I remember taking a couple steps back and I slapped my chest with both hands to grab the bear spray. And by the time I got it out, she was essentially to me. And the safety was still on the bear spray, so I couldn't spray it yet. In my head, I decided I'd jump off the trail onto the steep slope and
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to my buddy Jacob, it looked like I was kind of just, I just fell. And anyway, I was sliding a few feet on my back and that gave me the extra second or two I needed to get that safety off. As I did, the bear continued coming towards me and I sprayed. And in my head, I was 15 feet behind myself. It felt like she wasn't that close.
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My friend later told me she was at most two feet away from me as I was sliding down this hill.
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Exactly. I sprayed. It hit her and she immediately sort of reared up. I remember seeing her ears perk up and she started snuffling like something was bothering her. And she she turned around and she ran back down the trail the way she'd come from. And then we got out of there.
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Yeah. Had she been any closer, she'd have been on top of me. So that was far and away my closest encounter. And it was traumatic. I've still been flashing back to that moment. It makes me feel kind of nauseous and still sort of grappling with what that means for my own role in these activities I like to do, these places I like to go.
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Absolutely. You know, one person I interviewed for the show said living in grizzly country is kind of like an enforced humility. There's a fear there. There's a weight that comes with knowing you're not at the top of the food chain. And as humans, we need to understand we're not necessarily always in charge.
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And in terms of the Endangered Species Act, like this experience made tangible for me, maybe there are things I shouldn't be doing in certain places. And fundamentally, that's one of the questions the Endangered Species Act makes us ponder at this much larger scale. Like how can we coexist with wildlife and with ecosystems?
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And are there places where maybe we shouldn't just be doing whatever we want?
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Yeah. So the Endangered Species Act was passed back in 1973. So just over 50 years ago now. And I wanted to dig in, you know, what was going on before that time and when it was passed. And it turned out that was kind of hard to do because most of the people involved in the legislature, they've passed away. But there ended up being this one name, this guy that seemed to still be around.
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And we actually found his phone number. We give him a call and he was really eager to take us back to those early days before the ESA got passed when he was tucked away in this office on the hill. It's a really wild story. So if you don't mind, I'd love for you to hear this part of the podcast and you'll see what I mean. So like I said, we found this guy and we called him up.
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Buff grew up hunting and fishing in the Northeast. He loved the outdoors. Still does. When I talked with him, he was eager to get back outside and tend his garden. I'm still handy with a chainsaw. In his younger days, Buff served in the Army, then worked for the State Department. He was a bit of an adventurer.
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One time he bought an Army surplus ambulance in Alaska, used it to fish his way across the state.
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Then, in the late 1960s, he joined the Department of the Interior. It's a government agency that manages most public land, wildlife refuges, national parks, that kind of stuff. And Buff had one of the highest positions in the agency, assistant to the secretary, who's the top dog. One day, he got a knock on his door.
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To be clear, this wasn't Buff's student, just a curious and passionate college kid who believed government could get something done. So he talked to Buff about the plight of whales. Even though the U.S. hadn't been a major whaling nation for decades, the country still imported about 30% of global whale products.
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Whale oil greased machinery, went into livestock feed, even powered government submarines. Buff listened to this student.
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He talked with scientists, organized a conference, and eventually he began to act. Like a bureaucratic James Dean character, Buff became a rebel with a cause. He learned how to pull the right levers and work the system behind the scenes. The country had passed a handful of laws addressing wildlife declines, and there was a precursor to the ESA on the books.
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There was an endangered species list, much like we have today, albeit a much shorter list, and it was really about raising awareness more than any kind of regulation. Buff submitted a rule to publish in the Federal Register that would add several species of whales to that endangered list. But then politics intervened.
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Buff's boss, the Secretary of the Interior, got fired over criticizing the war in Vietnam. When that happened, Buff says, all hell started breaking loose in the department.
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Buff himself didn't get fired, but the new boss did have some new priorities, and those didn't include Wales. So Buff got the order to withdraw that rule that would list Wales.
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Wait, make sure I'm understanding you. You were told to remove this from the register, and you didn't.
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I call that very pointed procrastination. And even though he got his way, eight species of great whales made the endangered species list, he realized that precursor to the Endangered Species Act wasn't enough to stop a species going extinct. The act had no teeth at all. No teeth, as in no tools that could force meaningful action. And Buff couldn't let that stand.
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Because at the time, the problem wasn't just whales. We'd logged and developed and drilled and poisoned our way into a full-on biodiversity crisis. The passenger pigeon, which had once blackened the skies, had been snuffed out. Wolves had been killed off everywhere in the lower 48 but near the Great Lakes.
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By the time Buff was in the Interior Department, even the animal symbolic of America itself, the bald eagle, was on the brink.
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for man to make his peace with nature. Republican Richard Nixon was president, and lots of other changes were taking hold of society. Rachel Carson's 1962 book Silent Spring had documented the chemical DDT's impact on bird populations and awakened the American public to the havoc we're wreaking on wildlife. The first Earth Day came less than a decade later, in 1970.
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The Civil Rights Movement had shown that the grassroots could make lasting political change. And now, the public was demanding meaningful action on the country's air, water, and wildlife.
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Buff, along with a few colleagues, got to drafting. Their goal was to create something that could last, that would stop the slaughter of whales, and that would go even farther. The language they decided on starts in a striking way.
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The very first paragraph of the act says the decline of the country's once abundant wildlife is, quote, a consequence of economic growth and development untempered by adequate concern and conservation. America was a global powerhouse, and this was a radical statement. Buff's basically arguing that the progress that marks our success as a country comes at a terrible cost.
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Under the policy as Buff wrote it, there were two categories of species in peril, endangered, which could go extinct, and threatened, which were in danger of becoming endangered.
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I don't remember at all much opposition. The act got through the Senate unanimously. And in the House, only 12 people voted against it.
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Under Section 7, federal agencies can't do anything that could jeopardize the existence of a listed species or even hurt the habitat those species depend on. And here is where those teeth of the law take shape.
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A little later, the act goes even farther. Section 9 outlaws taking endangered species. That means any kind of killing, but also herding, chasing, shooting, harassing, and trapping. It even applies to herding habitat. It was a far-reaching law in other ways, too. It said any citizen could petition the government to list species and sue over enforcing the act.