The ESA is fundamentally in trouble because it challenges a horizon of federal beneficiaries that have successfully resisted all other proposals for change.  And because it challenges, for many Americans, their beliefs about themselves.

The emerging field of ecosystem management stumbles over the question of whether human beings and their impacts are a part of, and define, an ecosystem itself. To deny that they are seems ridiculous; to accept that they are, on the other hand, strips the concept of any meaning. After examining several perspectives on the human role in the environment and legal regimes based on those perspectives, this Essay proposes a perspective and a legal regime that bifurcates the question. While ecosystems contain humans, human actions are not their measure–or there is no measure. The best available measures of ecosystems are representative species that indicate their natural conditions. This measure taken, the role of human beings is to manage ecosystems, and themselves, towards this goal.

It is an honor for me to be here at Northwestern School of Law of Lewis & Clark College, at an institution and in a region responsible for so much progress in environmental law. I knew that I was in a different environment this morning when my radio alarm went off with announcements of upcoming community meetings. The first meeting announced was that of the Progressive Singles of Portland, who would be having a vegetarian potluck next Tuesday. That is not the sort of announcement one would hear in Louisiana. If we were to have such a meeting in the Deep South–and I am not admitting that we do–we would never let anyone know ahead of time.

I have been here once before, in 1959. I was hitchhiking up the Pacific Coast, looking at signs at the side of the road that read “Fire Danger” *2 when a forest service ranger stopped the car and I was volunteered for a brush fire on Miller Creek. When that was over I went on to other fires, and I soon learned that forest fire management involves a great deal of standing around and waiting for nature to take its course. When the rains finally came, we were put on campground management, which involved cleaning the ladies’ and men’s restrooms. What was written on the inside of the walls of the ladies’ rooms was another learning experience for a young boy from the East. These basic lessons in natural resources management under my belt, my life then went off in other directions–but a third lesson from Oregon became indelible over time. We were out on trail maintenance. It was noon and half dark in the woods, and the sunlight came down in shafts from the tops of the trees, turning green by the time it hit the ground. The ground was soft, with a murmur of water. The moss covered the logs so thickly that we could lie down on them and go to sleep which, being a forest service crew, we tended to do. But I was aware, before I dozed off, that I was close to the heartbeat of life and that it was good. What I did not know at the time is that I was also in the middle of–and this is the operative word–an ecosystem.

INTRODUCTION

One of the more rational conclusions to emerge from America’s experience with the Endangered Species Act [FN1] is that we need to manage ecosystems and protect biological diversity on a scale larger than individual species on the brink of doom. Supported by evidence of a decline in diversity and the crash of environments on which all species depend, [FN2] “ecosystem management” and “biodiversity” have become new catchwords in the vocabulary of natural resources management. [FN3]

*871 We now have to decide what these words mean. The difficulty is not to determine what, in the name of biodiversity and with willing hearts, we can do to save species and the landscapes they inhabit, but rather, as pres-sures to develop these landscapes continue to mount, what we cannot do. This Article is a search for the “can’t-do’s,” a bottom line without which diversity and ecosystem protection will remain laudable aspirations but something well short of law. It is a search for law to apply. [FN4]

*872 This Article accepts as a given that biological diversity is a desirable goal. [FN5] This Article also ac-cepts, and bypasses, the need for multiple approaches to diversity, including gap analysis, dispersion corridors, zon-ing restrictions, tax incentives, transferable development rights, acquisition programs, public-private partnerships, and other measures proposed in the literature and in Congress. Last and not least, this Article recognizes only briefly the achievement of the Endangered Species Act in bringing the message of diversity to an often-unwilling public. [FN6] It is not possible to imagine the serious, difficult conversations now taking place over western water man-agement, [FN7] coastal land development, [FN8] the depletion of aquifers [FN9] and the impact of marine fisheries [FN10] without the existence of endangered turtles, salmon, salamanders and their kin–and the law that backs them up. Indeed, it might be said that the Endangered Species Act is in trouble today not because it fails to address diver-sity and ecosystems, but instead because it is beginning to address them too well.

The question now is whether we can eliminate the middlemen of endangered species and get to the business of protecting their landscapes in a more straightforward fashion. This Article begins its study of this question by con-sidering *873 three special problems presented by diversity and ecosystem protection. It then examines the experi-ence of the National Forest Service, the Bureau of Land Management, the National Marine Fisheries Service, and other federal resource managers over the past ten years, as well as more recent advances in multi-species manage-ment on private lands. Driven by these case histories, the Article concludes that, however high we raise our sights towards managing the whole, the requirements of individual species will remain the bottom line, or we will have no bottom line, and the entire effort will fail.

Over the past 40 years, the United States Congress has constructed a body of law aimed at salvaging fish and wildlife resources from the impacts of federal water resource projects — dams, canals, channelization, and their attendant improvements. These provisions and their amendments, known collectively as the Fish and Wildlife Coordination Act (FWCA),1 call for “equal consideration” of fish and wildlife in project planning, close coordination between federal construction and fish and wildlife agencies,2 reports on measures to compensate for fish and wildlife losses, and specific recommendations to Congress — the so-called fish and wildlife “mitigation plan.” The implementation of these provisions over the past 40 years has been a rather unblemished history of failure in every branch of government.

The construction agencies have failed to consult. The wildlife agencies have failed to prepare mitigation reports. The construction agencies have failed to make mitigation recommendations to Congress which, in turn, has simply looked the other way.3 And courts of law, faced with bald violations of the Act, have commonly found compliance with its provisions judicially unenforceable.