THE ENDANGERED SPECIES ACT
by Francine Shay, CLA
and Jody L. Brooks, Esq.
Overview of the Act
The stated purposes of the Endangered
Species Act of 1973 ("ESA"), codified in 16 U.S.C. §§1531
through 1544, are to conserve the ecosystems upon which endangered
and threatened species depend, provide a program for the conservation
of such endangered and threatened species, and to take steps to
achieve the purposes of existing treaties and conventions affecting
wildlife, fish, and plants. 16 U.S.C.A. § 1531(b). The federal
regulations that implement the ESA are found in 50 C.F.R. Part 17.
Congress gave the secretaries of the
Department of Commerce and the Department of Interior joint
responsibility for implementation of the ESA. In turn, the Department
of Commerce delegated its lead responsibility - the protection of
marine species including both freshwater and ocean-dwelling fish - to
the National Marine Fisheries Service (NMFS). The Department of
Interior delegated its lead responsibility - the protection of all
land-dwelling species, freshwater species, some marine mammals, and
migratory birds - to the U.S. Fish and Wildlife Service (FWS). In
this chapter, the FWS and the NMFS will be referred to as the
"agency" or "agencies."
The ESA is divided into the following
discrete sections:
Section
2. Congressional Findings and Declaration of Purposes and Policy
Section
3. Definitions
Section
4. Determination of Endangered Species and Threatened Species
Section
5. Land Acquisition
Section
6. Cooperation with States
Section
7. Interagency Cooperation
Section
8. International Cooperation
Section
8A. Convention Implementation
Section
9 Prohibited Acts
Section
10. Exceptions
Section
11. Penalties and Enforcement
Section
12. Endangered Plants
Section
15. Authorization of Appropriations
Section
17. Construction with Marine Mammal Protection Act of 1972
Section
18. Annual Cost Analysis by Fish and Wildlife Service
This chapter will primarily focus on
Sections 4, 6, 7, 9 and 10 of the Act. These sections are the ones
that are most utilized by the agencies and practitioners.
History of the Act
Upon finding that species of fish,
wildlife, and plants are of aesthetic, ecological, educational,
historical, recreational, and scientific value to the nation and its
people, Congress declared that the purpose of the ESA is to provide a
means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved and to provide a program
for the conservation of such endangered and threatened species. 16
U.S.C. § 1531(a)(3) and (b).
Prior to the enactment of the ESA in
1973, the legislature attempted to protect endangered species through
two acts: the 1966 Endangered Species Preservation Act, 80 Stat. 926
(1966), and the 1969 Endangered Species Conservation Act, 83 Stat.
275 (1969). In 1973, Congress completely revised and strengthened the
earlier species protection legislation through the passage of the
Endangered Species Act. The ESA's overall framework remains
essentially unchanged since 1973 despite significant amendments that
were subsequently enacted. The legislation amending the ESA - 92
Stat. 3751 (1978), 92 Stat. 1225 (1979), and 96 Stat. 1411
(1983) - were enacted to improve the listing process and to balance
conflicts that arise between economic development and species
protection.
Defining a Species
Species has been broadly defined to
include a distinct vertebrate population segment that is both
discrete and significant, as defined by the "Final Vertebrate
Population Policy," 61 Fed. Reg. 4722 (1996). The ESA defines the
term species to include any subspecies of fish, wildlife, or plants,
or any distinct population segment of any species of vertebrate fish
or wildlife that interbreeds when mature. 16 U.S.C. 1532(16).
A species is considered an endangered
species when the species is in danger of extinction throughout all or
a significant portion of its range. 16 U.S.C. 1532(6). A species is
considered a threatened species when the species is likely to become
endangered within the foreseeable future throughout all or a
significant portion of its range. 16 U.S.C. § 1532(20).
Listing of Species and Designation of Critical Habitat
With the exception of activities
associated with candidate species, the ESA provides substantive
protection only to those species listed as threatened or endangered
in accordance with Section 4 of the Act. Section 4 of the ESA,
codified in 16 U.S.C. § 1533, provides a mechanism to list
species the agencies determine to be endangered or threatened.
Listings can include either entire species, or a distinct population,
subspecies or distinct population segment of a species. Listings also
include species similar in appearance to endangered or threatened
species. 16 U.S.C. § 1533(e).
The agencies determine which species
are to be placed on either the endangered or the threatened species
list by reviewing certain factors which qualify species for listing.
These factors are found in 16 U.S.C. § 1533(a)(1). The factors
include:
Present
or threatened destruction, modification or curtailment of its habitat
or range;
Over-utilization
for commercial, recreational, scientific, or educational purposes;
Disease
or predation;
Inadequacy
of existing regulatory mechanisms; and
Other
natural or man-made factors affecting the species' continued
existence.
The agencies also determine which
habitat qualifies for designation as critical habitat by following
the factors listed in 16 U.S.C. § 1532(5). Specific areas are
designated as critical habitat when a geographical area occupied by
the species either at the time listed, or at a later time, on which
are found physical or biological features that are determined to be:
essential
to the conservation of the species and
may
require special management considerations or protection.
Except for certain limited
pre-determined circumstances, critical habitat cannot include the
entire geographical area that can be occupied by a listed
species. Also, sometimes subsequent to the listing of a species,
specific areas that lie outside the geographical area occupied
by the species are designated as critical habitat because the
agencies determine at a later point in time that such areas are
essential for the conservation of the listed species.
FWS is required to publish lists of
species the FWS or NMFS determines are endangered or threatened as
well as any designated critical habitat. The lists are found at:
50
C.F.R. § 17.11 (wildlife species)
50
C.F.R. § 17.12 (plant species)
50
C.F.R. § 17.95 (wildlife critical habitat)
50
C.F.R. § 17.96 (plants critical habitat)
FWS and NMFS are required to review
and update the lists every five years. The FWS publishes its
Endangered Species Handbook (1994), now in its fourth edition,
as its internal procedural guidance.
Procedure for Listing
Section 4 of the ESA provides a
procedure for listing endangered and threatened species, which is
codified in 16 U.S.C. § 1533.
FWS and NMFS make the lists for the
species and habitat under their respective delegation. The agencies
themselves may initiate the listing or delisting of species or
critical habitat. In addition, any individual or any organization may
file a petition with either FWS or NMFS to list, delist, or
reclassify species or habitat. The petition process and requirements
are outlined in 50 C.F.R. § 424.14.
Petitions regarding species must
include certain information to be considered sufficient so that the
agencies may evaluate whether the petition presents substantial
biological data to indicate that the petitioned action may be
warranted. The regulations found in 50 C.F.R. §
424.14(b)(2)(i)-(iv) provide that the petitions must
clearly
indicate the recommended administrative measures;
provide
the taxonomic identity, common name, and current status of the
species; and
present
a narrative justification for the action with supporting biological
documentation.
Petitions regarding critical habitat
designations are required to provide sufficient information on the
area recommended for designation and justify why the area meets the
critical habitat criteria. The regulations for petitions regarding
critical habitat are found in 50 C.F.R. § 424.14.
Additional guidance for drafting
petitions can be found in the "Final Petition Management Guidance"
published at 61 Fed. Reg. 36075 (July 1996).
Attorneys who prepare petitions for
clients utilize paralegals in a number of ways. Among the tasks that
may be assigned paralegals are
to
research the requirements and procedure for submitting petitions;
to
research caselaw regarding similar scenarios under the ESA;
to
find an appropriate expert to either provide pretrial advice, to
testify, or both;
to
compile and organize the biological data and supporting documentation
obtained from the expert or consultant;
to
draft the petition for the attorney's review; and
to
compile the exhibits to the petition.
To the maximum extent practicable,
the agency has 90 days after its receipt of the petition to make a
finding, and then promptly publish its finding in the Federal
Register. The agency's finding is whether the petition presents
substantial biological data to indicate the petitioned action may be
warranted. The agency's determination is based solely on the best
scientific and commercial information available. 50 C.F.R. §
424.24(b)(1). However, the courts have determined that conclusive
evidence is not required. Defenders of Wildlife v. Babbitt,
958 F. Supp. 670 (D.D.C. 1997). In any event, Congress intended to
give the benefit of the doubt to the species.
If the agency's 90-day review
results in a finding that the petition does not satisfy the
agency's "substantial information" requirement, the petitioner
may appeal the decision to the federal district court. Appeals of
agency or administrative decisions to the district court are
conducted in the same manner as any other litigation at the trial
court level. Attorneys utilize the assistance of paralegals in these
litigation matters as they would in any other type of litigation: the
drafting of pleadings, preparing discovery requests and responses,
researching legal procedures and substantive issues, interviewing
potential witnesses, finding expert witnesses and coordinating the
exchange of information and documents between them and the attorneys.
When an agency reviews a petition
regarding the listing of species and finds that adequate biological
data suggests the petitioned action may be warranted, the agency has
twelve months after its receipt of the petition to initiate a review
of the petitioned action and publish in the Federal Register its
ultimate finding of whether listing the species may be warranted.
When an agency reviews a petition regarding the designation of
critical habitat, the agency has twelve months after its receipt of
the petition to determine how the agency will proceed, and
promptly publish notice of its determination in the Federal Register.
At the conclusion of its 12-month review of the
petitioned action regarding the listing of species, the agency
decides either the petitioned action:
may
be warranted;
is
warranted;
is
not warranted; or
is
warranted but precluded.
If the agency's final determination
is that the action may be warranted but needs additional information
to make a final determination, the agency publishes in the Federal
Register a Notice of Review (NOR) to solicit additional data.
If the agency determines that the
petitioned action is warranted, the agency publishes proposed
regulations in the Federal Register pursuant to the Administrative
Procedures Act (5 U.S.C. § 501, et seq.) notice and
comment rule-making procedures. The procedures include a 60-day
comment period and, if anyone requests it, at least one public
hearing that must be held within 45 days of the published notice. The
agency then has one year to either:
promulgate
a final rule;
find
that the petitioned action should not be made;
withdraw
its proposed rule if the agency finds no adequate supporting
evidence; or
extend
the review period for no more than six months.
If the determination is that the
action is warranted but precluded because there exists other pending
and imminent proposals to list species that are in greater biological
danger, then the agency adds the petitioned species to the candidate
species list. The agency publishes in the Federal Register its
finding of "warranted but precluded." The finding must be
re-examined every year until the petitioned action is either proposed
as a rule or the petition is denied as not warranted. The agency
publishes in the Federal Register its annual notice of candidate
species as a Notice of Review (NOR). The NOR solicits information
needed to prioritize species. Through the Listing Priority System,
the agency assigns a one through twelve listing priority to each
candidate species according to the immediacy of the threat to the
species.
Paralegals assist in the process of the listing of species by
following up on the publication of notices, attending public
hearings, and reporting back to the attorney and petitioners through
memoranda of the public hearing proceedings. Paralegals also assist
by drafting Freedom of Information Act (FOIA) requests to the
agencies, and reviewing and obtaining copies of agency records on the
comments received and the biological data and internal documents
related to its decision-making processes.
A petitioner may challenge the
agency's determination in federal district court if the agency
determines that the petitioned request is not warranted, or warranted
but precluded, or the agency fails to make a finding. Paralegals
assist in these challenges in the same manner that they assist in any
litigation action.
Listing Moratorium
In April 1995, Congress passed
legislation creating a moratorium on the agencies' function of
listing endangered and threatened species and critical habitat. This
legislation temporarily cut off funds for the agencies to make
listings determinations. In April 1996, the moratorium expired and
funding was restored to the amount of $4 million. The backlog of
petitions resulted in FWS's publication of its Listing Priority
Guidance, which is found in 50 C.F.R. Pt. 17, or 61 Fed. Reg.
64475 (12/5/96).
Delisting
Species may be delisted using the
same standards as those for listing species - using the best
scientific and commercial data available to substantiate that the
species is either extinct or has recovered. A species may also be
delisted if the original data that formed the basis for listing the
species is now found to be in error. 50 C.F.R. § 424.11(d). A
species is considered extinct if it is no longer found in its
previous range. 50 C.F.R. § 424.11(d)(1). A species is
considered recovered if, using the standards for listing and
delisting, the data shows it is no longer endangered or threatened.
50 C.F.R. § 424.11(d)(2). In fact, any listed species that no
longer meets the ESA's definition of endangered or threatened
species results in the removal of the species from the list.
Critical Habitat Protection
The ESA prohibits all federal
agencies from undertaking actions that would destroy or adversely
modify habitat of listed species that the FWS or NMFS designates as
critical habitat. 16 U.S.C. § 1536. The Federal circuit courts
are split as to whether NEPA requirements must be followed for
designations of critical habitat. NEPA regulates federal agencies as
to their procedures and priorities for the protection of
environmental resources. The statutes regarding NEPA are found in 42
U.S.C. §§ 4321 4370(d).
Recovery Plans
Recovery plans assist the
agencies in identifying, prioritizing, and scheduling management and
research necessary to reverse the decline of a species and ensure its
long-term survival.
Congress did not require the
development of recovery plans until it amended the ESA in 1978.
Additional amendments enacted in 1982 established priorities for the
development of recovery plans, giving priority to species most likely
to benefit from recovery efforts, especially species threatened by
development. The agencies are responsible for developing and
implementing recovery plans for endangered and threatened species,
unless the agencies find that such a plan will not promote the
conservation of the species. Legislation regarding recovery plans is
codified in 16 U.S.C. § 1533(f).
In recovery planning, the agencies
must give priority ranking to species most likely to benefit from the
recovery plan, especially those that are or may be in conflict with
development activities. Each plan must include
a
description of the site-specific management actions that may be
necessary to achieve the plan's goal for the protection of the
species;
objective,
measurable criteria that specify when the species may be removed from
the endangered or threatened list; and
estimates
of the time and cost to carry out the plan.
The agencies may procure the services
of other public agencies or private institutions, as well as
qualified individuals, to develop and implement recovery plans. These
entities comprise what is known as recovery teams.
Cooperation with States
Section 6 of the ESA, codified in 16
U.S.C. § 1535, authorizes the agencies to enter into management
agreements with the states to implement the ESA. The agencies may
enter into a management agreement with any state in the U.S. for the
administration and management of any area established for the
conservation of listed species. 16 U.S.C. § 1535 (b). In
addition, the agencies are authorized to enter into cooperative
agreements with any state that establishes and maintains an adequate
and active program for the conservation of listed species. 16 U.S.C.
§ 1535(c).
Federal funds are provided to the
states to implement the states' conservation programs. 16 U.S.C.
1535(c). The states participating in cooperative agreements are
entitled to receive grants through the Cooperative Endangered Species
Conservation Fund. States contribute 25% of the estimated program
costs of approved projects, or 10% when two or more states implement
a joint project.
Takings - Civil and Criminal Sanctions (16 U.S.C. § 1538)
Section 9 of the ESA prohibits "take"
of endangered fish and wildlife. "Take" means to "harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in such conduct." 16 U.S.C. § 1532(19).
"Harm" is defined by the FWS in
50 C.F.R. § 17.3 as an act which actually kills or injures
wildlife, but the act may also include significant habitat
modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding, or sheltering. NMFS defines "harm"
in 50 C.F.R. § 222.102. NMFS's definition closely matches the
definition of harm specified by FWS, but NMFS adds to its definition
of harm additional behavioral patterns of the species: spawning,
rearing, and migrating.
In 16 U.S.C. § 1538(a)(1), the
ESA lists the unlawful activities regarding endangered species of
fish and wildlife
to
import into or export out of the U.S. any endangered species;
to
take any endangered species within the U.S. or the U.S. territorial
sea or upon the high seas;
to
possess, sell, deliver, carry, transport, or ship any endangered
species that were taken;
to
deliver, receive, carry, transport, or ship any endangered species in
interstate or foreign commerce in the course of commercial activity;
to
sell or offer for sale any endangered species; or
to
violate any regulation pertaining to any endangered species.
Similarly, in 16 U.S.C. §
1538(a)(2), the ESA lists the unlawful activities regarding
endangered species of plants:
to
import into or export endangered species of plants from the U.S.;
to
remove and reduce to possession, or to maliciously damage or destroy,
endangered species of plants from areas under Federal jurisdiction;
to
remove, cut, dig up, or damage or destroy any endangered species of
plants on any area other than under Federal jurisdiction or while
violating any State law or regulation or while violating any State
criminal trespass law;
to
sell or offer for sale any endangered species of plants; or
to
violate any regulation pertaining to any endangered species of
plants.
Note
that listed plants are not protected to the same extent as listed
fish and wildlife because the prohibition against "take" applies
only to listed animals. 16 U.S.C. § 1538(a)(1)(B).
It is
unlawful to violate regulations pertaining to any threatened species
of fish, wildlife, and plants. In addition, it is unlawful to attempt
to commit, solicit another to commit, or cause to be committed the
listed offenses.
Exemptions to the unlawful activities
are listed in 16 U.S.C. §§ 1535(g)(2) and 1539. These
include emergency situations, those involving certain cooperative
agreements, approved scientific purposes, and if the taking is
incidental to an otherwise lawful activity. Approved incidental
takings and their accompanying conservation plans are discussed later
in this chapter.
Responsibilities for enforcement of
the provisions of the ESA are found in 16 U.S.C. § 1540. Public
enforcement is undertaken by the Department of Justice, the
Department of the Interior through FWS, and through the Department of
Commerce through NMFS. The Coast Guard, the Customs Service, and the
Department of Agriculture may develop the cases for the various
agencies. Public enforcement results in criminal, civil penalty and
forfeiture actions.
In addition, citizens may initiate
private legal actions to enforce the ESA through citizen suits. 16
U.S.C. § 1540(g). A citizen suit may be brought in federal
district court to enjoin any person or governmental entity alleged to
violate any statute or regulation under the ESA. A citizen suit may
also be brought against the FWS or NMFS to compel the agency to apply
the prohibitions set forth in the ESA with respect to the taking of
any listed species within the U.S., or if the agency fails to perform
any non-discretionary act or duty under 16 U.S.C. § 1533. In
most situations, the plaintiff initiating a citizen suit must provide
the agency and the alleged violator with written notice prior to
filing the suit. The court, when issuing any final order in any suit
brought by a citizen, may award the costs of litigation, including
reasonable attorneys' and expert witness fees, to any party
whenever the court determines such award is appropriate. 16 U.S.C. §
1540(g)(4).
Anyone initiating a citizen suit must
have standing to bring the suit. Standing issues have been decided in
several Supreme Court cases. In Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-561 (1992), the Court determined that a plaintiff
must demonstrate he or she has suffered an "injury in fact," an
invasion of a judicially recognizable interest, which is concrete and
particularized, where there exists a causal connection between the
injury and the conduct complained of, the injury is fairly traceable
to the challenged action, and that the injury is not merely
speculative. However, any person may commence a civil suit if injury
is produced by issuance of a biological opinion, thereby negating the
traditional zone of interests test. Bennett v. Spear, 520 U.S.
154 (1997). The biological opinion is considered final agency action,
which, pursuant to the APA found in 5 U.S.C. § 501, et seq.,
makes it judicially reviewable under the arbitrary and capricious
standard.
A review of caselaw reveals how
courts have decided whether a take has occurred in various fact
scenarios. For example, it has been determined that killing in
self-defense or in the defense of others is not a taking, but the
individual must report his or her action to FWS within five days.
U.S. v. Clavette, 135 F. 3d 1308 (9th Cir. 1998).
It has also been decided that a State can be held liable for "take"
through its implementation of a licensing program. Strahan v.
Coxe, 127 F. 3d 155 (1st Cir 1997).
There are also court rulings deciding
whether critical habitat modifications result in a taking. In these
cases, the plaintiffs who initiate a citizen suit have the burden to
establish with reasonable certainty that the modification action will
result in significant habitat modification that would actually kill
or injure listed species by impairing their essential behavior
patterns. U.S. v. West Coast Forest Resources L.P., No. Civ.
96-1575-HO, 2000, WL 298707 (D. Or. Mar. 13, 2000).
Civil penalties for any person or
organization knowingly violating the ESA, other than an
administrative violation, such as record-keeping or report-filing,
are listed in 16 U.S.C. § 1540(a), which provide for monetary
penalties after the receipt of proper notice and an opportunity for a
hearing. No civil penalty is imposed if the accused violator can
prove by a preponderance of the evidence that he or she committed the
act based on a good faith belief that he or she was acting to protect
himself or herself, or any individual from bodily harm from any
listed species. 16 U.S.C. § 1540 (a)(3).
Civil penalties assessed against an
individual or organization convicted of criminal violations of the
ESA may include the modification, suspension or revocation of its
permit or license to import or export fish or wildlife, or any
federal grazing permit, with no compensation for the loss of the
permit or license. 16 U.S.C. § 1540(b)(2). Other civil penalties
include civil forfeiture of listed plants and animals and for
equipment used in furtherance of an unlawful act. These are
enumerated in 16 U.S. C. § 1540(e)(5) and 19 U.S.C. §§
1581 et seq.
In addition, the Department of
Justice may sue to enjoin an alleged violator from the activity that
is believed to violate the ESA or its regulations. 16 U.S.C. §
1540(e)(6).
Criminal penalties of monetary fines
or imprisonment may also await any person who knowingly violates the
ESA. Criminal penalties are listed in 16 U.S.C. § 1540(b). It is
a Class A misdemeanor for any person or organization to violate the
ESA in a manner that affects endangered species. It is a Class B
misdemeanor for ESA violations that affect threatened species.
Although a defense to a criminal violation is a good-faith belief
that the violator acted to protect him or herself or others from
bodily harm (16 U.S.C. § 1540(b)(3)), it is not a defense if the
violator acted merely to protect property.
Since the ESA does not provide for
felony penalties, violations are often prosecuted as a Lacey Act
charge. Violations are incorporated into the Lacey Act when the acts
are considered as the "triggering" or as an underlying offense
that falls under the Lacey Act. This would include a charge of
knowingly importing, exporting, transporting, selling, receiving,
acquiring or purchasing any wildlife, fish or plant taken,
transported or sold in prohibition of any U.S. law, including the
ESA. 16 U.S.C. § 3372. Violators of the Lacey Act are charged
with a Class D felony which may result in up to five years
imprisonment, a fine of up to $250,000 for individuals, or $500,000
for organizations, or both.
An individual or organization may be
criminally charged and prosecuted for multiple liability of
violations of the ESA. A determination of units of prosecution is
made when the violation involves more than one animal or protected
species. For example, a unit of prosecution may be determined as one
count per day, or one count for all animals taken per day, or one
count per species per day, among other methods of calculations.
Assistance to Landowners
A 1993 study determined that half of
listed species have at least 80% of their habitat on private lands.
What can a landowner do when there are listed species on his property
so that he will not violate Section 9 of the ESA? Several programs
provide mechanisms for private landowners, tribes and local
governments to assist the Federal government in protecting listed
species.
Habitat
Conservation Planning allows for development of land provided
conservation measures are undertaken.
The
No Surprises Policy assures participating landowners that they will
incur no additional mitigation requirements beyond those they agreed
to in their Habitat Conservation Plans (HCPs), even if circumstances
change. 63 Fed. Reg. 8859 (February 28, 1998).
Safe
Harbor Agreements are available to landowners that implement on their
private land species-friendly measures that restore, enhance or
maintain habitat for listed species. The Agreements provide certain
assurances, such as limitations on future land use restrictions.
Application requirements, issuance criteria, permit conditions and
assurances are found in 50 C.F.R. § 17.22(c) for endangered
species and in 50 C.F.R. § 17.32(c) for threatened species.
The
Candidate Conservation Agreements with Assurances Policy provides
incentives for landowners to conserve candidate species, thereby
making listing unnecessary for those species. Application
requirements, permit conditions, and assurances in the event of
various potential circumstances are found in 50 C.F.R. §
17.22(d) for endangered species and in 50 C.F.R. § 17.32(d) for
threatened species.
The
Private Stewardship Program provides grants and other assistance on a
competitive basis to individuals and groups engaged in local,
private, and voluntary conservation efforts that benefit listed,
proposed, or candidate species, or other at-risk species. 67 Fed.
Reg. 61649 (October 1, 2002).
Incidental
take authorization and HCPs are discussed in greater detail later in
this chapter.
Federal Agencies' Consultation Requirements
Section 7
of the ESA places a statutory duty on each federal agency ("action
agency") to consult with the FWS or the NMFS ("consulting
agency") to ensure that any action "authorized, funded, or
carried out by such agency" is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of habitat. 16 U.S.C.A. §
1536(a)(2). To comply with the jeopardy prohibition, federal
agencies must follow Section 7 procedures when they consult with the
FWS or the NMFS before proceeding with proposed "agency actions"
to determine whether such actions are likely to jeopardize any
endangered or threatened species.
Any action "authorized, funded,
or carried out" by a federal agency triggers consultation
procedures under Section 7. The consulting agencies' joint
implementing regulations for consultation broadly construe the term
"action":
Action means all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal
agencies in the United States or upon the high seas. Examples
include, but are not limited to:
(a) actions intended to conserve listed species or their habitat;
(b) the promulgation of regulations;
(c) the granting of licenses, contracts, leases, easements,
rights-of-way, permits, or grants-in-aid; or
(d) actions directly or indirectly causing modifications to the land,
water or air. 50 C.F.R. § 402.2.
This statutory duty to consult
applies only to federal "actions in which there is discretionary
Federal involvement or control." 50 C.F.R. § 402.03.
To comply with Section 7
requirements, the action agency first defines the action area,
determines the presence of listed species or critical habitat within
the action area, and establishes whether the project may have a
direct or indirect impact to listed species or designated habitat.
The action agency uses an incremental approach to assess the degree
of the proposed action's impact on listed species or designated
habitat. This incremental approach consists of
an analysis of whether there will be
any effect;
an analysis of whether there will be
any adverse effect; and
an analysis of whether any listed
species will be jeopardized or whether any critical habitat will be
destroyed or adversely impacted.
There are various ways the agencies
examine whether a proposed action may affect listed species and
designated habitat - by:
holding early consultations with
permittees and licensees (50 C.F.R. § 402.11);
conducting biological assessment for
major construction activities or other federal action which may be
done as part of a NEPA requirement (50 C.F.R. § 402.12); and
performing informal consultations
pursuant to 50 C.F.R. § 402.13 to determine whether a formal
consultation, as outlined in 50 C.F.R. § 402.14, is required.
Consultation may end immediately when
agencies determine that the action will have "no effect" on
listed species or critical habitat. An action agency can request
that the consulting agencies "concur" with the "no effect"
determination. If the consulting agency concurs with the "no
effect" determination, consultation ends.
A biological assessment must be
conducted when the action agency determines the proposed action is a
major construction activity and listed species or designated habitat
may be present in the action area. For non-construction or minor
construction activities that may affect listed species or critical
habitat, the action agency can do one of the following:
voluntarily prepare a biological
assessment;
engage in "informal consultation
with the consulting agency; or
engage in its own, independent
analysis of the effects of the action.
Formal consultation is not required
for actions that are not likely to adversely affect listed species or
critical habitat. 50 C.F.R. § 402.14(b). Formal consultation
is required if the action agency determines that its proposed action
is likely to adversely affect listed species or critical habitat. 50
C.F.R. § 401.14(a) and (b). Formal consultation is "initiated"
by a written request from the action agency to the consulting agency.
Formal consultation must be concluded within ninety days from the
date it is initiated, unless the agencies involved agree to extend
the time period. The conclusion results in the
consulting agency's issuance of a biological opinion.
Biological opinion (BO) is not
defined in the ESA but is used to satisfy the provision within
Section 7(b) of the Act that requires a "written statement setting
forth the Secretary's opinion, and a summary of the information on
which the opinion is based, detailing how the agency action affects
the species or its critical habitat."
Every BO must contain:
a summary of the information on which
the opinion is based;
a detailed discussion of the effects
of the action on listed species or critical habitat;
the consulting agency's opinion as
to whether the action is likely to jeopardize the continued existence
of a listed species or result in destruction or adverse modification
of critical habitat; and
if jeopardy is determined, reasonable
and prudent alternatives.
If the consulting agency's BO
results in a finding of the existence of any adverse impact, then the
consulting agency must determine the existence of any reasonable and
prudent alternatives to avoid any jeopardy or adverse impacts to the
listed species or habitat. 16 U.S.C. § 1536(b)(3). In light of
the possibility of a potential alternative, from the time the action
agency initiates the Section 7 process, it is prohibited from making
any "irreversible or irretrievable" commitment of resources which
would foreclose the formulation or implementation of any reasonable
and prudent alternative to the proposed action. The action agency may
be challenged for injunctive relief to stop the action that may
preclude the implementation of potential alternatives. 16 U.S.C. §
1536(d).
ESA allows for incidental take of
listed species in connection with otherwise lawful activities. As
long as an action can proceed, i.e. no jeopardy, any BO issued with
respect to an otherwise lawful activity must include an incidental
take statement (ITS), which is essentially a permit that
allows for take of a listed species incidental to the agency action.
An action agency must reinitiate
consultation for any one of the following events:
the amount and extent
of incidental take is exceeded;
new information
indicates that the proposed action may threaten endangered species or
critical habitat;
the action is modified
in such a way as to cause an effect on listed species or critical
habitat in a manner not considered in the BO; or
a new species is listed
or critical habitat is designated that may be affected by the action.
The consulting agency's BO is
considered final agency action that is subject to challenge in the
federal courts. The challenger may be the action agency that
disagrees with the BO. In that event, the action agency must
articulate its reason for its disagreement with the BO. In fact, the
action agency is technically free to disregard the BO and proceed
with its proposed action. However, if the action agency proceeds with
its proposed action, it runs a substantial risk. Bennett v. Spear,
520 U.S. 154 (1997). If the action agency turns out to be incorrect
and the action indeed results in jeopardy to listed species or
habitat, the action agency is not covered by the take provisions and
may be subject to Section 9 enforcement.
An alternative an action agency may
take to avoid being subject to Section 9 enforcement is for the
action agency to apply to the Endangered Species Committee (ESC),
commonly referred to as the "God Squad" or "God Committee,"
which is comprised of seven Cabinet Secretaries and agency
administrators. The committee may grant an action agency exemption
from its Section 7 duty to avoid jeopardy. The ESC has met only a
handful of times since Congress created the ESA Section 7 exemption
process in 1978. On most occasions the ESC has denied the
application for the exemption. The ESC has granted at least two
exemptions. One exempted the Bureau of Land Management for timber
sales that would impact the northern spotted owl. The other exempted
a reservoir project in Wyoming contrary to adverse effects to
whooping cranes.
Application procedures for these
exemptions are codified in 50 C.F.R. § 450 and outlined in the
CRS publication titled "Endangered Species Act: The Listing and
Exemption Processes," CRS No. 90-242 ENR (May 8, 1990). Pursuant to
16 U.S.C. § 1536(h)(1)(A), in order to be granted an exemption,
the applicant must satisfy the following conditions:
there
are no reasonable and prudent alternatives to the agency action;
the
benefits of the agency action is in the public interest and clearly
outweigh the benefits of alternative courses of action to conserve
the species;
the
action is of regional or national importance; and
neither
the action agency nor the exemption applicant made any irreversible
or irretrievable commitment of resources.
Tennessee
Valley Authority v. Hill, 437 U.S.
153, 180 (1978), is a landmark case that held that Congress had
intended to afford species the highest of priorities, and that
Section 7 demanded that a nearly completed dam project be halted to
protect the snail darter (a listed fish species). Subsequent to this
decision, the ESC was convened for the first time, but it did not
grant TVA an exception.
Any decision made by the ESC may be
challenged by any person by taking the action to the U.S. Court of
Appeals. The laws regarding the ESA and applications for exemption
are discussed in 16 U.S.C. § 1536(e) through (h).
Incidental Takes and Habitat Conservation Plans (HCPs)
A new section, Section 10, was added
to the ESA through the 1982 amendments, and was codified as 16 U.S.C.
§ 1539. The purpose for enacting Section 10 was to reduce the
conflicts that were occurring between the goal of protecting listed
species and the economics of development activities. The legislation
encourages "creative partnerships" between public and private
sectors. Section 10 allows for incidental takes of endangered and
threatened species of wildlife by non-Federal entities. 16 U.S.C. §
1539(a)(1)(B); 50 C.F.R. §§ 17.22 and 17.23. An incidental
take is a take that occurs incidentally during otherwise legal
activities.
Upon application, anyone may request
the FWS or the NFMS to issue an incidental take permit. 16 U.S.C. §
1539(a). The applicant submits a habitat conservation plan (HCP) that
specifies
an
analysis of the impacts that will likely result from the taking;
the
actions the applicant plans to take to minimize and mitigate those
impacts;
an
assurance of adequate funding to carry out the HCP; and
the
alternative actions the applicant considered and why the alternatives
are not being used.
If the activities are minor in scope
and effect, the submitted HCP is considered one of low effect and
receives expedited permit processing. In addition, as an alternative
to the agency's issuing an incidental take permit, the agency may
make a recommendation to landowners on ways to avoid and minimize
impacts to the listed species, making a permit unnecessary.
When FWS makes a decision, it
publishes its notice in the Federal Register, allowing for a public
comment period. The incidental take permit is issued only if all of
the following conditions are met (16 U.S.C. § 1539(a)(2)(B)):
the
taking will be incidental;
the
applicant will minimize and mitigate the impacts of taking;
the
applicant will ensure adequate funding for the conservation plan; and
the
taking will not appreciably reduce the likelihood of survival and
recovery of the species in the wild.
HCPs are addressed in FWS's
comprehensive "Habitat Conservation Planning Handbook and
Incidental Take Permit Processing Handbook" (November 4, 1996). The
entire Handbook is published on the FWS website, and includes
application requirements and processing procedures, as well as the
application forms.
Policy for Evaluation of Conservation Efforts (PECE)
When the agencies evaluate
conservation efforts when making listing decisions, they follow their
Policy for Evaluation of Conservation Efforts (PECE), which was
published on June 13, 2000, in 64 Fed. Reg. 37102. The purpose of the
policy is to ensure consistent and adequate evaluations of future or
recently-implemented conservation efforts identified in the various
methods, such as conservation agreements, conservation plans,
management plans, and other documents when making listing decisions.
Implementation of CITES
Section 9 of the ESA provides for the
implementation of the Convention on International Trade in Endangered
Species of Wild Flora and Fauna (CITES). About 140 nations list
species and provide a sliding scale of protection. The sliding scale
is reflected as three Appendices which are listed in 50 C.F.R. §
23.23. Appendix 1 provides the greatest protection to the listed
species and Appendix 3 provides the least protection.
The importation requirements of CITES
species are found in 50 C.F.R. Part 23. Violators of the CITES
requirements are charged with a Class A misdemeanor. 16 U.S.C. §
1538(c). It is unlawful to engage in trade, or to import fish,
wildlife or plants contrary to the CITES, or to possess any fish,
wildlife, or plants that have been unlawfully imported.
Freedom of Religion Exemptions
There are no exemptions from the ESA
for Native Americans in Hawaii and the mainland U.S. However, there
are some exemptions for Alaskan Natives, particularly for sustenance
purposes. 16 U.S.C. § 1539(e)(1). For example, the U.S. Supreme
Court held that the Bald and Golden Eagle Protection Act abrogated
any Indian treaty right to hunt bald eagles. The 1962 amendment to
the Act, which authorizes the issuance of permits for Indian eagle
hunting, indicated legislative intent that eagle hunting by Native
Americans is inconsistent with the ESA unless authorized by permit.
U.S. v. Dion, 476 U.S. 734, on remand 800 F. 2d 771 (8th
Cir. 1986). Also, in U.S. v. Billie, 667 F. Supp. 1485 (S.D.
Fla. 1987), the court held that the taking prohibitions of the ESA
apply to activities of the Native Americans on their reservation.
Latest Developments
At the time of the writing of this
chapter, the FWS proposed a change to its taking regulation which
would permit American hunters, circuses and the pet industry to kill,
capture and import endangered species in other countries. The
rationale is that the current regulations provide no incentive for
poor countries of the world to protect endangered species, and that
taking fixed numbers of animals from the wild would pay for
conservation programs for remaining animals. Other Western countries
are already trading in endangered and threatened species, but the ESA
and its regulations as currently written preclude such takings.
Other recent developments at the time
of the writing of this chapter that could result in changes to the
ESA include:
Ongoing debate over whether critical
habitat adds any additional protection to listed species and the role
of "sound science" in making critical habitat designations. 2003
U.S. Senate Committee on Environment and Public Works, Hearing on
Critical Habitat Designations Under the ESA (April 10, 2003) and
GAO-03-803 Additional Guidance Needed for Critical Habitat
Designations (Aug. 29, 2003.)
Whether the FWS and NMFS "no
surprises" rule is valid and whether landowners will continue to
participate in the HCP process if no assurances are given through the
"no surprises" rule. Spirit of the Sage Council v. Babbitt,
98-1873 EGS, D.D.C.
Whether the Department of Defense
should be exempt from portions of the ESA for military operations.
Glossary of ESA Terms
Action agency. A federal
agency proposing an action that may affect species or habitat, and
consults with either the FWS or the NMFS to comply with its Section 7
requirements under the ESA.
Biological Opinion. In a
Section 7 consultation, the determination made by the
consulting agency of whether an action agency's proposed action is
likely to directly or indirectly jeopardize the continued existence
of any species that is listed or proposed to be listed, or is likely
to result in the destruction or any adverse impact to any designated
or proposed critical habitat.
Candidate species list. A list
of species that is published annually in the Federal Register that
the FWS or NMFS determines are warranted to be included in either the
endangered or threatened species lists, but precluded for specific
reasons.
CITES. Convention on
International Trade in Endangered Species of Wild Flowers and Fauna,
a multilateral international trade and conservation convention,
currently made up of 144 countries.
Commercial activity. All
activities of industry and trade, including the buying or selling of
commodities and activities, conducted for the purpose of facilitating
such buying and selling, but not for exhibition by museums or similar
cultural or historical organizations.
Conserve, conserving, and
conservation. The use of all methods and procedures which are
necessary to bring any listed species to the point at which the
measures provided in the ESA are no longer necessary.
Consulting agency. Either the
FWS or the NMFS when it is consulted by a federal agency to comply
with its Section 7 requirements.
Critical habitat. The specific
areas within the geographical area occupied by the species, at the
time it is listed, on which are found the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection,
and also the specific areas outside the geographical area occupied by
the species, at the time it is listed, that are determined essential
for the conservation of the species.
Endangered species. Any
species which is in danger of extinction throughout all or a
significant portion of its range whose protection under the
provisions of the ESA, other than a species of the Class Insecta
determined by the agency to constitute a pest and would present an
overwhelming and overriding risk to man.
ESA. Endangered Species Act,
codified in 16 U.S.C. §§ 1531 to 1544, the primary federal
statute regulating the protection of species of fish, wildlife and
plants so depleted in numbers they are in danger of or threatened
with extinction.
Federal agency. Any
department, agency, or instrumentality of the U.S.
Fish or wildlife. Any member
of the animal kingdom, including without limitation any mammal, fish,
bird, amphibian, reptile, mollusk, crustacean, arthropod or other
invertebrate, and includes any part, product, egg, or offspring
thereof, or the dead body or parts thereof.
Foreign commerce. Any
transaction between persons within one foreign country, between
persons in two or more foreign countries, between a person within the
U.S. and a person in a foreign country, or between persons within the
U.S., where the fish and wildlife in question are moving in any
country or countries outside the U.S.
FWS. U.S. Fish and Wildlife
Service, the federal agency that is delegated lead responsibility for
protecting all land-dwelling species, freshwater species, some marine
mammals, and migratory birds.
Habitat Conservation Plan (HCP).
A report submitted to the FWS or NMFS that details the steps an
incidental take permit applicant will undertake to minimize, mitigate
for, and monitor the impacts to listed species.
Harm. Defined by the FWS as an
act which actually kills or injures fish or wildlife or significant
habitat modification or degradation that actually kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding, or sheltering. Defined by NMFS as the
same as FWS, but adds spawning, rearing, and migrating to the
behavior patterns affected by the habitat modification or
degradation.
Import. To land on, bring
into, or introduce into, or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the U.S.,
whether or not such landing, bringing, or introduction constitutes an
importation within the meaning of the customs laws of the U.S.
Incidental take. A take that
occurs from, but is not the purpose of, carrying out an otherwise
lawful activity conducted by a federal agency or applicant.
Incidental take statement (ITS).
A permit that allows for take of a listed species incidental to a
lawful agency action.
Listed species. Species that
are listed in the Federal Register by the FWS or NMFS either as
endangered or threatened.
NMFS. National Marine and
Fisheries Service, the federal agency that is delegated lead
responsibility for protecting marine species including both
freshwater and ocean-dwelling fish.
Notice of Review (NOR). The
annual notice of candidate species that is published in the Federal
Register to solicit information needed to prioritize species.
Plant. Any member of the plant
kingdom, including seeds, roots and other parts thereof.
Recovery plan. A plan that
identifies, justifies, and schedules the research and management
actions necessary to reverse the decline of a species and ensure its
long-term survival.
Species. Any subspecies of
fish or wildlife or plants, and any distinct population segment of
any species of vertebrate fish or wildlife which interbreeds when
mature.
Take. To harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect any listed
species, or to attempt to engage in any such conduct.
Threatened species. Any
species that is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.
Sources of Information on the Internet
http://www.environmentallaw.net.com
ESA fact sheets, permit application
forms and instructions, and other information can be obtained through
the tab titled "Agency Documents & Databases," then the links
to " U.S. Fish & Wildlife" and "Endangered Species."
http://www.fws.gov
The home page for the Fish and
Wildlife Service, which links to current versions of the endangered
and threatened species lists, a searchable text file of the ESA, and
additional information about the program.
http://www.nmfs.noaa.gov/
The home page for the National Marine
Fisheries Service, which links to endangered and threatened species
lists, species information, recovery plans, responsible marine life
viewing, and additional information involving ESA issues.
Bibliography
Baur, Donald C. and Wm. Robert Irvin.
Endangered Species Act: Law, Policy and Perspective. American
Bar Association. 2002.
Brightman, Richard S. and Nieto,
Gabriel E. "Incidental Take Permitting and Habitat Conservation
Planning." Florida Environmental and Land Use Law, The Florida
Bar. February 2002.
Brown, Mark. "Overview of the
Endangered Species Act and Highlights of Recent Litigation."
Wildlife and Marine Resources Section of the Environment and Natural
Resources Division of the U.S. Department of Justice, 1991.
Ergas, Luna. "Section 9 of the
Endangered Species Act: Prohibitions on Taking Listed Species."
Florida Environmental and Land Use Law, The Florida Bar. February
2001.
McGowan, Paul. "The Endangered
Species Act Listing Process." Florida Environmental and Land
Use Law, The Florida Bar. February 2001.
Rizzardi, Keith. "ESA Section 7
Consultation." Florida Environmental and Land Use Law, The
Florida Bar. February 2001.
Sullins, Tony A. "ESA
Endangered Species Act." Basic Practice Series, American Bar
Association. 2001.
U.S. General Accounting Office Report
to Congressional Requestors No. GAO-03-803. "Endangered
Species - Fish and Wildlife Service Uses Best Available Science to
Make Listing Decision, but Additional Guidance Needed for Critical
Habitat Designations." August 2003.
White, David J. "Enforcement and
Judicial Review of the Endangered Species Act." Florida
Environmental and Land Use Law, The Florida Bar. February 2001.
Discussion Questions
What
is the difference between an endangered species and a threatened
species?
What
is the difference between a biological assessment and a biological
opinion?
Under
what situations may anyone "take" an endangered or threatened
species?
An
owner of a large vacant property adjacent to a large state park would
like to have it developed as a mixed use development, incorporating
residential, commercial and natural areas.
In
light of the ESA, what is one of the preliminary steps the owner
needs to take in order to plan for the development?
What
should the owner do if endangered or threatened species is found on
the property?
What
are some of the alternatives available to the landowner that wishes
to develop property on which endangered or threatened species is
found?
Do you feel that taking endangered species from the wild in poor
countries is an effective means to conserve remaining endangered
species in those countries? Why?
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