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Public Radio's Environmental News Magazine (follow us on Google News)

February 10, 1995

Air Date: February 10, 1995


The Case for Private Property Rights / Jennifer Schmidt

There is a case before the Supreme Court that could turn the Endangered Species Act upside down. At issue is the definition of the word "harm" and whether or not protection from harm extends to an animal's habitat. Habitat protection has been the basis for some of the most controversial endangered species regulations in the country. Jennifer Schmidt from member station KPLU in Seattle reports. (07:45)

Sex at the Zoo

Host Steve Curwood takes a trip to the Franklin Park Zoo in Boston to talk with Dr. Donna Fernandez about sexual behavior in the animal kingdom. Hear what elks, crickets and seagulls have in common with the mating rituals of people. A Valentine's Day treat! (13:23)

Show Credits and Funders

Show Transcript

Copyright (c) 1994 by World Media Foundation. No portion of this transcript may be copied, sold, or transmitted without the written authority of World Media Foundation.

HOST: Steve Curwood
REPORTERS: Rachel Anne Goodman, Amy Eddings, Steve Helwig, Jennifer Schmidt
GUEST: Dr. Donna Fernandes

(Theme music intro)

CURWOOD: From National Public Radio, this is Living on Earth.

(Music up and under)

CURWOOD: I'm Steve Curwood.

It's a Federal crime to harm an animal protected by the Endangered Species Act. The government says that means the animals' homes are protected, too, but some say the Act doesn't cover habitat on private land, and in a ruling which could cripple protection efforts, a Federal court has agreed.

MURRAY: The Federal court in the District of Columbia has basically said that the Fish and Wildlife Service and the Department of the Interior have broken the law.

CURWOOD: Also, birds do it, bees do it, sometimes even we do it. This Valentine Season we visit Boston's Franklin Park Zoo for a look at animal courtship and mating.

FERNANDES: Anything that you've ever seen in human sexual patterns, bizarre as it may seem, you can find examples in the animal kingdom.

CURWOOD: Sex at the zoo, this week on Living on Earth, right after this news.

Environmental News

NUNLEY: From Living on Earth, I'm Jan Nunley. A leading Central American environmentalist has been killed. Police suspect it was an assassination. Honduran officials say Blanca Janeth Kawas-Fernandes was shot to death by several assailants hiding in her home in Tela, Honduras. Police say robbery has been ruled out as a motive. Kawas-Fernandes was president of a foundation fighting to keep peasant groups from gaining control of part of Tela National Park. No arrests have been made but police are investigating the leaders of 2 of the peasant groups seeking control of the land.

Researchers at Stanford say dramatic changes in ocean life indicate global warming may already be affecting coastal ecosystems. From Santa Cruz, California, Rachel Anne Goodman reports.

GOODMAN: In a study published in the journal Science, researchers at Hopkins Marine Station on California's Monterey Bay have found an increase in warm water species of crabs and snails and a corresponding decrease in cold water species. Comparing animals counted 60 years ago in a similar study, researchers found diminished numbers of cold water starfish and crabs while new southern species of snails have moved in and flourished. The creatures are responding to waters that have warmed 1.3 degrees in 60 years. The study's authors hope other similar findings around the world will supply a larger picture of global climate change. For Living on Earth, I'm Rachel Anne Goodman in Santa Cruz.

NUNLEY: The Interior Department has unveiled 2 plans that will have a huge impact on loggers and endangered owls in the Pacific Northwest. Logging restrictions aimed at protecting the northern spotted owl would be relaxed on more than 5 million acres of non-Federal land in Washington and California. The no-logging zone around each owl nest would be cut from as much as 5,600 to just 70 acres. Interior officials hope this plan will show the flexibility of the Endangered Species Act to the Republican-controlled Congress. To protect the California spotted owl, the Department is also offering to end logging on 10 million acres of Sierra Nevada forest land. Those proposals could take effect by the end of the year.

New York City's water has long been renowned for its purity, but that reputation has been tainted by allegations a top official altered tests to hide contamination. From member station WFUV in New York, Amy Eddings reports.

EDDINGS: As Deputy Commissioner of the Bureau, Richard Gainor was responsible for testing the water New Yorkers drink at the rate of 1.5 billion gallons a day. Last month, 2 former employees claimed supervisors under Gainor skewed test results to reduce the chances of finding disease-causing bacteria. DEP Commissioner Marilyn Gelber said the water is safe, and tests were not compromised since only a few samples are being questioned out of the 14,000 taken each year. But the State Health Department has stepped in, asking the DEP to respond to the allegations, and the DEP said Richard Gainor has been moved to a position with less responsibility. For Living on Earth, I'm Amy Eddings in New York.

NUNLEY: The Army Corps of Engineers wants out of the flood control and beach protection business. A proposal in the Clinton Administration's 1996 budget would shift responsibility for such protection to state and local governments. Since 1917, the Corps has been constructing dams and levees to protect cities, towns, and farms from rivers or the ocean. Some hydrologists now say those measures intensified disasters such as the 1993 Mississippi River floods. An Army spokeswoman says the shift is an effort to streamline the Federal Government and not a turn away from waterway control. Still, if Congress approves the budget, it could reduce development in flood-prone areas.

The orca whale that starred in the movie Free Willy is himself closer to freedom. An amusement park in Mexico has agreed to move Keiko to an Oregon aquarium. While it's good news for Keiko, the agreement has drawn the concern of the aquatic amusement park industry. They're worried the agreement could set a precedent for releasing other captive whales. From KLCC in Eugene, Oregon, Steve Helwig reports.

HELWIG: The agreement to release Keiko ends a 2-year battle between the sea mammal amusement park industry and environmental groups. The Center for Whale Research is among those trying to return Keiko to his pod off the coast of Iceland. Center spokesman Howard Garrett says while Keiko was owned by an independent theme park called Reno Avantura, major US parks such as Sea World were particularly anxious not to have the whale released.

GARRETT: They're afraid of that precedent. If one is successfully released, then others, then the clamor would rise for them to be released as well. And they're just afraid of that snowball effect.

HELWIG: Sea World spokesman Brad Andrews says Keiko's release has no effect on the park. He says the park was offered a chance to buy Keiko but turned it down. He says his only concern was what was best for the animal. For Living on Earth, I'm Steve Helwig in Eugene, Oregon.

NUNLEY: That's this week's Living On Earth news. I'm Jan Nunley.

Back to top

(Theme music up and under)

The Case for Private Property Rights

CURWOOD: This is Living on Earth. I'm Steve Curwood. Changing the Endangered Species Act is high on the priority list of many members of Congress. In particular, they say they want to make the law easier on private property owners. But before Congress even picks up the issue, it could be decided by the Supreme Court. In a surprise decision last year, a Federal appeals court ruled that the Endangered Species Act does not protect crucial animal and plant habitat on private land. The Clinton Administration and environmental activists argue that it does, and they say that if the ruling is allowed to stand, many now protected species would go extinct. The Supreme Court will decide whose interpretation is correct. From Seattle, Jennifer Schmidt of member station KPLU reports.

SCHMIDT: The dispute really comes down to the definition of a single word. When Congress passed the Endangered Species Act back in 1973, it made it a crime to harm an animal protected by law. But Congress didn't explain exactly what it meant by harm. Did it mean that it was illegal to harm an animal only with direct force, say, by shooting, hunting, or trapping it? Or did Congress mean harm in a broader sense?

LAZARUS: By depriving the species of its habitat, of its home, of its food, and of its shelter.

SCHMIDT: That's Richard Lazarus, a professor of law at Washington University in St. Louis. He says the Administration's position is that harm means both these things. For nearly 20 years there's been a regulation on the books which states that it's illegal to injure or kill a protected animal directly, or indirectly, by destroying habitat on private property. But last year, an appellate court in Washington, DC, said the government's broad interpretation is wrong.

MURRAY: The Federal court in the District of Columbia has basically said that the Fish and Wildlife Service and the Department of the Interior have broken the law.

SCHMIDT: William Murray is with the American Forest and Paper Association. He says the government should have been particularly careful in crafting the regulation, because the stakes are so high.

MURRAY: You can put someone in jail for violating the Endangered Species Act by taking an endangered or threatened species. And here we have an agency with a concept that could put someone in jail, not even following what Congress originally intended.

SCHMIDT: The case against the government is being brought by a coalition of large and small timberland owners, individuals and communities in the Northwest and Southeast. It's come to be known as Sweet Home, after one member of the group, a small, grassroots timber organization from Sweet Home, Oregon. The appellate court's split ruling was a stunning victory for the Sweet Home challengers. The court said that language in the Endangered Species Act shows that Congress intended harm to mean only direct force and not habitat destruction. Law professor Richard Lazarus says the court based its ruling in part on the maxim, "A word is known by the company it keeps."

LAZARUS: The word "harm" appears in a definition of taking which includes several other terms. There's "harm," there's "wound," there's "kill," there's "injure." And according to the majority in the court, one has to read the word "harm" in that context. And here, the other terms suggest direct application of force, not indirect injuries.

SCHMIDT: Attorneys for the government maintain that the ruling is seriously flawed and threatens the entire Federal effort to protect endangered species. Environmental groups are echoing the government's concerns. Michael Bean is an attorney with the Environmental Defense Fund and a leading expert on the Endangered Species Act.

BEAN: Congress was clearly aware that the loss of habitat was the leading cause of endangerment of wildlife. Witness after witness at the Congressional hearings made the point that without protecting habitat one cannot expect to protect species and stave off extinction of species.

SCHMIDT: Supporters of the government's position also say the fact that Congress had several chances to clarify the law, but left the language unchanged, indicates it's been comfortable with how the Act's been interpreted. They point out that it's not unusual for Congress to focus on broad statements of principle, rather than the details. And when language is unclear, the courts have traditionally left it up to the Executive Branch to interpret it. Again, Richard Lazarus.

LAZARUS: If the Court concludes that the meaning of the language is ambiguous, then the Court is supposed to defer to the Agency's interpretation so long as it is reasonable.

SCHMIDT: But private property groups say the government's interpretation is not reasonable. Jennifer Deming is with the Pacific Legal Foundation. She says the current interpretation has led to serious abuses, such as the case of a California farmer whose tractor was seized because he plowed land that was home to 3 obscure species.

DEMING: Tipton Kangaroo Rat, the Blunt Nose Leopard Lizard, and the San Juaquin Kit Foxes. So he was criminally charged with violating the Endangered Species Act for plowing his property.

SCHMIDT: The criminal charges were subsequently dropped, but the government is continuing to pursue civil charges. Deming says any charges in this dispute are outrageous. Property rights advocates point out that language that would have explicitly protected habitat on private land was deleted from the original Endangered Species Act. Congress also included a provision in the Act that permits the government to buy land to preserve as critical habitat. Private property rights attorney Roger Marzulla says he believes Congress didn't want the government to have broad authority to restrict the use of private land.

MARZULLA: Congress had in mind certainly prohibiting individuals from directly injuring the animals. But at the same time, Congress felt that if private property was to be preserved in effect as a refuge for these endangered species, then the government had to acquire it and pay for it.

SCHMIDT: Ultimately, it's the Supreme Court that will decide which interpretation of the word "harm" is valid. Law professor Richard Lazarus says it's likely the court will uphold the government's position, but perhaps by only the narrowest of margins.

LAZARUS: This is a court with a huge middle to it. I mean there are a lot of justices here who go back and forth on these issues. So the government has a good chance of winning. But the government is going to have to do a lot of effective persuasion.

SCHMIDT: If the Administration fails to persuade the court, it will lose much of its power to protect endangered species. John Leshy is the general counsel for the Interior Department.

LESHY: It would be a major, major hole in the coverage of the Endangered Species Act, particularly for such things as migratory birds. Because what essentially the lower court said was, you know, you could have a stand of trees that had the only population in the world of a particular migratory bird, and when the birds flew away in the winter or the summer, you can cut all the trees down. And knowing that that's going to wipe out the species.

SCHMIDT: But the ruling will affect far more than just birds. Environmentalists point out that nearly half of all threatened and endangered species live on private lands. If private property owners are no longer obligated to help protect these animals, many of them could die out. In the end, this is likely to mean even more will have to be done to protect endangered species on public land, including additional restrictions on logging, grazing, mining, and other activities that take place on Federal lands across the nation. Oral arguments in the Sweet Home case are expected in April. The Supreme Court is likely to issue its ruling by summer. For Living on Earth, I'm Jennifer Schmidt in Seattle.

Back to top

(Music up and under)

Sex at the Zoo

(Alligator calls)

FERNANDES: These are alligators. It's a rather romantic call, loud and robust, but until I had done this program I really was not aware of the fact that there are mating calls in alligators.

CURWOOD: Sounds more like a Harley Davidson.


CURWOOD: Meet Donna Fernandes: zoologist, Vice President of Programming, and presenter of the yearly Valentine's Day Sex at the Zoo lecture at Boston's Franklin Park Zoo. Her shows are always a big hit. Standing-room only audiences fill a small amphitheater at the zoo's African Tropical Forest Pavilion again and again to hear what humans have in common with our feathered and furry friends when it comes to courtship and mating. A surprise from Dr. Fernandes: just about any human sexual behavior can be found in the wild kingdom. Take for example the mating call. The human male's street corner whistle has its counterpart in the vocalizations of male elk, parrots, even insects.

(Crickets chirping)

FERNANDES: This is a common field cricket. Probably most of you have heard this out there. What's neat about field crickets is the rate at which they call is related to their body temperature, and in fact one of the early scientists at the beginning of this century worked out the formula so that you could actually tell the temperature of the air by counting the number of chirps in 15 seconds, and I think adding the number 22 or something. I forget the exact formula, but you can find a clear relationship between chirp rate and temperature.

(Birds caw in the background)

CURWOOD: But it's not a thermometer; it's a love call.

FERNANDES: Yes, it is a love call. And so, females have to sort of take into consideration what the air temperature is when they are responding to a call. Because very often, species differ only in their calling rates. So a female not only has to listen to the call, but sort of adjust that to the outside temperature so she's sure that she's responding to the right male.


CURWOOD: Oh, this is very loud.

FERNANDES: The 17-year cicada. They're really interesting in that they take about 17 years to develop. After they sort of emerge from the ground, the males climb to the tops of trees and they emit this really loud buzzing call, and females then fly into where the males are and copulate with them.

CURWOOD: I guess if they've been waiting 17 years, they deserve it. Okay. And this?

(Elk call)

CURWOOD: This sounds like rutting season to me.

FERNANDES: That's right. This is an elk call, and they also vocalize. And what's interesting about elk, is females often choose mates on the basis of their call in that they prefer to mate with males who give very long vocalizations, so that the bout length is quite pronounced. As well as the calling frequency, because there's quite an energetic demand to vocalize. And so, if they mate with animals that are able to call for a long time, amounts of time, it means they're in very good body condition.

(Elk call continues)

CURWOOD: Now, Dr. Fernandes, why study sex in animals?

FERNANDES: Well I've always thought it was very interesting to understand some of the complex, bizarre behaviors that you see. Courtship, even some of the characteristics that males have evolved which function solely to attract females, like elaborate plumages in peacocks, or inordinately large bright red breasts in frigate birds and things. And also, the duration of copulation can vary so much in species. How come some can get it over with in 3 seconds and others remain together in amplexis, if they're frogs, for 6 months? I mean, why stay on a female for 6 months? And so, I always thought that those kinds of questions were really fascinating.

CURWOOD: And what are some of the answers? Why 6 months?

FERNANDES: Well, animals that remain incopulate for a really long time, it's usually as a way of guarding the female or reducing the risks that some other male is going to come and fertilize her. So probably only a small portion of that time is actually needed for the transmission of sperm. Thereafter, it's mate-guarding.

CURWOOD: Now, with sexual reproduction as a way to mix up the genetic pool, and this behavior around sex, the courtship and duration stuff, is to do what? What's the biological purpose of that?

FERNANDES: Well, I think it really comes down to the fact that females represent a very limited resource, in that eggs are much, much larger than sperm. So females can only lay a limited number of eggs in their lifetime. Because females make these larger eggs and also often invest thereafter by carrying the young in a pregnancy, or lactating so they give breast milk, they're making this huge investment, whereas often males give little more than their sperm. They copulate with the female and they're gone. That sets up competition among males for access to those females, because there's certainly more sperm out there than there are eggs to fertilize. And it's that competition among males which has led to a lot of dominance, interaction, or the evolution of giant horns in males which they'll use to fight with each other. Or sometimes males can only get access to females if they bribe her with gifts. So there's sometimes courtship feeding, where males have to prove their worthiness by offering her some sort of dead insect if she's a hanging fly, and so females will copulate only if they get an insect prize. And the duration of copulation is related to the size of the prey, so that if you give her a really big insect she'll let you copulate with you for 25 minutes. If you give her a small little midge, you'll only get on her for 5 minutes. So those really interesting stories, I think, fascinate me.

CURWOOD: The presents of Valentine's Day have their precedents in nature.

FERNANDES: Oh, absolutely.

CURWOOD: So what species look for these presents? You mention these insects. Who else?

FERNANDES: Well, a lot of birds will insist on courtship feeding before they'll settle down with a male. And that's because in male birds, a lot of them do a substantial amount of parental care after the chicks are born. And so what you really want to evaluate is how good of a father is this male going to be. And so, if he's able to bring you lots of fish or lots of insects over a fairly short courtship period, then you know that once those babies are born, he'll be pretty good at going out and getting food for the offspring. So you're sort of assessing his parenting skills by how much he can bring you in a short period of time.

CURWOOD: So in general, in nature, the more attractive species are the males. They have the brighter plumage, the big peacock feathers or whatever. And the females are less attractive.


CURWOOD: So why the reversal for humans?

FERNANDES: Well, it's hard to say if that's true. If you looked at males and females without makeup, then I don't know if you necessarily would say that females are the more attractive. If you look at why makeup has sort of evolved in culture, very often it is to make you look younger, and to simulate sexual arousal. Rouge looks very much like flushed cheeks, or a lot of the eye makeup's supposed to make your eyes look bigger. But the biggest thing is you want to look young. Because in humans, and in a lot of animals, your value as a mate is dependent on youth. Because once you're slightly older, your reproductive potential is much less. You have fewer years ahead of you where you'll be able to bear children. And if you look at societies where there are multiple wives, very often males will have several wives and have very young wives. And even in today's society, very often successful men will divorce their wife when she's about menopausal or in her 40s, post-reproductive, and marry a much younger woman. And it's because he could have a much, a whole second set of offspring with another female.

(Bird calls)

CURWOOD: All right. Let's take a walk around the zoo and take a look at some of the animals.


CURWOOD: So we're in front of the chameleons here.

FERNANDES: Right. We have some panther chameleons. What's neat about these guys is, you can tell if a female's receptive by her body coloration. That if she's in a certain color state, she is receptive. And what's also neat about chameleons, and it's true of a lot of lizards and snakes, is they have 2 penises. Hemi-penes.

CURWOOD: Two penises?

FERNANDES: Right. And the one that they use depends on which side they approach the female. So if they approach her on the left side of her then they'll use their right penis, or if they approach her on the right side they'll use their left penis. So we've watched these guys copulate, and he doesn't seem to have a preference of which one he uses, but he does have 2.

(More footfalls)

CURWOOD: What do we have here? This is a marmoset, or...?

FERNANDES: It's actually a pado, which is one of the early types of primates called prosimian primates, and they're found deep in the forest canopy of West Africa. And what's interesting about these guys is they copulate upside down, which is -

CURWOOD: Upside down?

FERNANDES: Upside down, very interesting to watch. And also, that what the male will do is he uses a mating plug. So after he copulates with a female, he'll sort of seal up her genital tract by having a substance that's mixed in with the semen that has a glue-like property. And that helps, because it sort of seals her up; it's like a little chastity belt. It's going to limit when she can mate with another male, and usually it allows enough time for his own sperm to travel up her reproductive tract. And this is very common in a lot of insects as well, who will use these mating plugs. And in fact, there's this interesting type of worm called an ecanthocephalon worm, which also, when he mates with a female, he'll cement up her genital tract. Well they have a phenomenon known as homosexual rape in these ecanthocephalon worms, where males will copulate with other males only to seal up their genital pores, because it's in effect sterilizing rival males. So once they're all sealed up with cement, they can't copulate with other females. So you may be the only intact male in town if you've been able to take all these other males out of commission.

CURWOOD: What have you learned most about human sexual behavior from the animals?

FERNANDES: Well, probably that anything that you've ever seen in human sexual patterns, bizarre as it may seem, you can find examples in the animal kingdom.

CURWOOD: Okay, you walked into this. Give us an example.

FERNANDES: Well, this year's program for our annual Sex at the Zoo, I'm going to be talking about homosexuality, transvestism, and sex change in the animal kingdom. And, at first I thought homosexual behavior was rather rare in animals, because you really just don't see it that often. But I've been doing a lot of research on this and found that, in fact, you do find lots of cases where males will copulate with other males of their own species, or females will remain together and raise young together, so-called lesbian gulls. And transvestism is a very common phenomenon in animals where you will have males that will mimic the appearance and behaviors of females, and there are a couple of reasons why they might want to do that. Often, if you mimic a female, you'll be able to sneak into the territory of another male; he won't suspect that you're a male. So when that territorial male is off defending maybe the border of his territory, you can sneak copulations with all the females that are in his territory. Or when I talked about the insects that insist on getting a nuptial gift before they'll copulate, well there are some males who will adopt the sort of flight pattern and courtship pattern of females so that when males offer them the nuptial gift thinking that it's a female, they'll steal it. And then they'll go off and try to court a male with the stolen gift. So, you know, you might think that transvestism in humans is really a bizarre phenomenon, but there are cases in the animal world as well where males will take on the appearances of females for some reproductive gain.

(Bird calls)

CURWOOD: I want to thank you for taking this time with us. Dr. Donna Fernandes is Vice President of Programs and Curator of Research here at Boston's Franklin Park Zoo.

FERNANDES: It's been a real pleasure to talk with you today. Thank you very much.

Back to top

(Music up and under: "Birds do it. Bees do it. Even educated fleas do it. Let's do it. Let's fall in love..." sung by Eartha Kitt)

CURWOOD: What would you like to know about animal behavior that you'd like to ask Dr. FERNANDES. Give us a call on our listener comment line at 1-800-218-9988. Or you can write to us at Living on Earth, Box 639, Cambridge, Massachusetts 02238. Our Internet address is LOE@NPR.ORG. Transcripts and tapes are $10.

(Music up and under: "Romantic sponges, they say, do it. Oysters down in Oyster Bay do it. Let's do it. Let's fall in love...")

CURWOOD: Our segment on sex at the zoo was produced by Deborah Stavro. The recorded mating calls came to us courtesy of the Library of Natural Sounds at the Cornell Laboratory of Ornithology. Living on Earth is produced and edited by Peter Thomson. Our coordinating producer is George Homsy, our associate producer is Kim Motylewski. Our production team includes Constantine Von Hoffman, Jan Nunley, Julia Madeson, Jessika Bella Mura, Heather Corson, David Dunlap, and Alex Garcia-Rangel. Our WBUR engineers are Louis Cronin and Mark Navin. Special thanks to Alan Maddes. Our theme music was composed by Michael Aharon.

Living on Earth is a project of the World Media Foundation, and recorded at WBUR, Boston. I'm Steve Curwood, executive producer.

ANNOUNCER: Major funding for Living on Earth comes from all-natural Stonyfield Farm Yogurt - whether supporting worthwhile causes or producing healthy foods, Stonyfield's goal is to make you feel good inside; also from the Joyce Foundation; the George Gund Foundation; and the Jessie B. Cox Foundation for New England Reporting.

(Music up and under: "Let's fall in love..")

NPR ANNOUNCER: This is NPR, National Public Radio.


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